FINDINGS & RECOMMENDATIONS
This matter came before the court on January 15, 2010, for hearing of plaintiff's motion for default judgment against defendant Joseph Raymond Olivera, individually and doing business as Stooges of Stockton, and Stooges, LLC. (Doc. No. 9). Thomas P. Riley appeared telephonically on behalf of plaintiff. No appearance was made by or on behalf of defendants at the hearing.
Plaintiff's counsel indicated at the hearing that he had no contact with defendants since the filing of the action. The court's docket reflects that defendants have not filed any motion for relief from the Clerk's Entry of Default on November 20, 2009, nor any opposition to plaintiff's motion for entry of default judgment despite being served with both. Upon hearing argument, the court took plaintiff's motion under submission.
For the reasons set forth below, the undersigned recommends that plaintiff's motion be granted and that default judgment be entered against defendants.
Plaintiff Joe Hand Promotions, Inc. is an international distributor of sports and entertainment programming. Defendant Olivera operates at least two commercial establishment called "Stooges of Stockton d/b/a The Stooges," one located at 8118 Est Lane, Suite 125 in Stockton, California and the other at 105 W. Pine Street in Lodi, California. By contract, plaintiff was granted the proprietary rights to distribute via closed-circuit television the "Ultimate Fighting Championship 76: 'Knock-out'" event (the "Program") which was telecast nationwide on Saturday, September 22, 2007. Defendants intercepted and exhibited the program in the commercial establishments referred to above without authorization to do so.
The record reflects that service of process was effected on defendants Olivera and Stooges, LLC on October 15, 2009, by personal service. (Doc. Nos. 5 and 6.) After defendants failed to file an answer, plaintiff filed a request for entry of default on November 17, 2009. (Doc. No. 7.) The Clerk entered default against the defendants on November 20, 2009. (Doc. No. 8.) On December 11, 2009, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendants.
Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for entry of default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
Granting or denying default judgment is within the court's sound discretion.
Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are
(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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ¶ ...