The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before this court is plaintiff J & J Sports Productions, Inc.'s application for default judgment.*fn1 This matter came on regularly for hearing on May 13, 2010, before the undersigned. Defendant has not appeared in this action, did not file an opposition to the application for default judgment and did not appear at the hearing. The undersigned has fully considered the briefs and record in this case and, for the reasons stated below, will recommend that plaintiff's application for default judgment be granted.
Plaintiff, a California corporation, is a closed-circuit distributor of sports and entertainment programming. Plaintiff, by contract, purchased the commercial exhibition licensing rights to the "The Dream Match": Oscar De La Hoya v. Manny Pacquiao, Welterweight Championship Fight Program of December 6, 2008, including the main event, along with undercard (preliminary) bouts, televised replay and color commentary (hereinafter referred to as the "Program.") Thereafter, plaintiff entered into sublicensing agreements with various commercial entities throughout the United States and its territories, by which it granted limited public exhibition rights to these entities for the benefit and entertainment of the patrons within its respective establishments (i.e., hotels, racetracks, casinos, taverns, bars, restaurants, social clubs, etc.).
The transmission of the Program was encrypted and made available only to plaintiff's customers, commercial locations which paid plaintiff the requisite closed-circuit license fees in order to have authorization to view the broadcast of the Program. For example, for the exhibition of this Program, if a commercial establishment had a fire code occupancy of fifty persons, the commercial sublicense fee would have been $2,200.00.
On December 4, 2009, plaintiff filed this action alleging that defendant unlawfully intercepted and intentionally broadcast the Program at defendant's establishment for the purpose of direct or indirect commercial advantage and/or private financial gain. Plaintiff alleges four claims for relief, which are labeled as "Counts" in the complaint. Plaintiff's first claim for relief alleges that defendant engaged in the unauthorized publication or use of communications in violation of the Federal Communications Act of 1934 (the "Communications Act"), 47 U.S.C. §§ 605, et seq.*fn3 (Dkt No. 1 at 3.) Its second claim alleges that defendant engaged in the unauthorized interception, exhibition, publication and divulgence of the Program at the defendant's establishment, 47 U.S.C. §§ 553, et seq.*fn4 (Dkt. No. 1 at 5.) Plaintiff's third claim alleges a common law claim of conversion. (Dkt. No. 1 at 6.) Its fourth claim for relief alleges violation of California Business and Professions Code §§ 17200, et seq. (Dkt. No. 1 at 7.)
Defendant Juan Jose Hernandez, sued individually and d/b/a Mazatlan Tacos Y Mariscos a/k/a Mariscos Mazatlan, operates a food and drink establishment located at 4800 Franklin Boulevard, Sacramento, California. Plaintiff avers that on December 6, 2008, defendant's establishment unlawfully displayed the Program, with approximately 35 patrons in the establishment at the time the Program was being displayed. Defendant did not obtain a license to exhibit the Program from plaintiff. Defendant's establishment did not require a cover charge to enter at the time it displayed the Program.
A proof of service filed with the court demonstrates that on January 8, 2010, plaintiff, through a process server, attempted personal service on defendant at the address of Mazatlan Tacos Y Mariscos, 4800 Franklin Blvd., Sacramento, California 95820. (Dkt. No. 6.) The declaration of service states that process was left with Antonio Glez, described as the "person in charge," with instructions to deliver the documents to defendant, and that a copy of the summons, complaint and related documents were mailed to defendant on January 11, 2010.*fn5
On March 11, 2010, the Clerk of Court for the United States District Court for the Eastern District of California entered a certificate of default in this action against defendant. (Dkt. No. 9.) In entering the default, the Clerk of Court stated that it appeared from the record and papers on file in this action that defendant was duly served with process yet failed to appear, plead or answer plaintiff's complaint within the time allowed by law. (Id.)
On April 10, 2010, plaintiff filed the instant application for default judgment. (Dkt. No. 12.) The application seeks judgment on plaintiff's claims for violation of 47 U.S.C. § 605 and 47 U.S.C. § 553, and for common law conversion.*fn6 Plaintiff requests judgment in the amount of $112,000. Plaintiff further states that it served notice of the instant Application for Default Judgment and supplemental pleadings on defendant by mail. (Dkt. No. 12 at 4.) No response to this application is on record in this action.
Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court may consider the following factors:
(1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily ...