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Joe Hand Promotions, Inc. v. Pollard

July 21, 2010

JOE HAND PROMOTIONS, INC., PLAINTIFF,
v.
GRAIG JERROLD POLLARD, INDIVIDUALLY AND D/B/A BOGEY'S LOUNGE DEFENDANT.



FINDINGS & RECOMMENDATIONS

This matter came before the court on March 19, 2010, for hearing of plaintiff's motion for default judgment against defendant Graig Jerrold Pollard, individually and doing business as Bogey's Lounge. (Doc. No. 8). Thomas P. Riley appeared telephonically on behalf of plaintiff. No appearance was made by or on behalf of defendant at the hearing.

Plaintiff's counsel indicated that following some early contact with defendant Pollard regarding possible settlement, there had been no further contact. The court's docket reflects that defendant has not filed any motion for relief from the Clerk's Entry of Default on January 6, 2010, 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 and granted plaintiff leave to file a supplemental declaration regarding the request for award of attorney fees and costs within one week of the hearing. On March 24, 2010, plaintiff's counsel filed a declaration addressing those matters.

For the reasons set forth below, the undersigned recommends that plaintiff's motion be granted and that default judgment be entered against defendant.

BACKGROUND

Plaintiff Joe Hand Promotions, Inc. is an international distributor of sports and entertainment programming. Defendant Pollard operates a commercial establishment called "Bogey's Lounge" in Stockton, California. By contract, plaintiff was granted the proprietary rights to distribute via closed-circuit television the "Ultimate Fighting Championship 91: Couture v. Lesnar" event (the "Program") which was telecast nationwide on Saturday, November 15, 2008. Defendant intercepted and exhibited the program in his commercial establishment without authorization to do so.

The record reflects that service of process was effected on defendant Pollard on December 12, 2009, by personal service. (Doc. No. 5.) After defendant failed to file an answer, plaintiff filed a request for entry of default on January 5, 2010. (Doc. No. 6.) The Clerk entered default against the defendants on January 6, 2010. (Doc. No. 7.) On February 16, 2010, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendant.

LEGAL STANDARDS

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 ΒΆ ...


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