The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT [DOC. 7]
Pending before the Court is Plaintiff J & J Sports Productions, Inc.'s motion for default judgment against Defendants Saul Hernandezsilva, individually and d/b/a Senor Taquito ("Defendants"). The Court decides the matter on the papers submitted without oral argument. See Civil Local Rule 7.1(d.1). For the reasons outlined below, the Court GRANTS the motion [Doc. No. 7], and AWARDS Plaintiff $1,800.
The facts as Plaintiff alleges are as follows.
Plaintiff is a California corporation that paid for the exclusive nationwide television distribution rights for Miguel Cotto v. Michael Jennings/Kelly Pavlik v. Marco Antonio Rubio Championship Fight Program, including all under-card bouts and fight commentary (the "Program"). (Compl. [Doc. 1], at ¶¶6, 9.) The Program was telecast nationwide on February 21, 2009. (Id., at ¶ 9.)
In anticipation of the Program's telecast, Plaintiff entered into sublicensing agreements with various commercial entities such as hotels, racetracks, casinos, bars, taverns, restaurants, etc., throughout North America, including California. (Compl., at ¶ 10.) The agreements granted these entities limited sublicensing rights to publicly exhibit the Program to patrons within their respective establishments. (Id.)
Defendant Saul Hernandezsilva is the "owner, and/or operator, and/or licensee, and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight and management" of Defendant Senor Taquito, located in Escondido, California. (Compl., at ¶ 7.) According to Plaintiff, Defendants unlawfully intercepted the transmission of the Program and showed it to patrons at Senor Taquito. (Id., at ¶ 12; Affiant Decl. [Doc. 7-3], at 2-3. ) Investigator Travers, retained by Plaintiff, witnessed the unlawful broadcast. (Id., at 2-3.)
On February 18, 2010, Plaintiff filed this lawsuit. The Complaint asserts two causes of action for violation of the Communications Act of 1934, 47 U.S.C. §§ 605 and 553, one cause of action for conversion, and one cause of action for violation of California Business & Professions Code §§ 17200, et seq. Defendants were, thereafter, served with the Summons and Complaint. (See Proof of Serv. [Doc. 4].) Defendants, however, did not respond to the Complaint, and Plaintiff obtained a clerk's entry of default against Defendants. (See Clerk's Entry of Defaults [Doc. 6].) Plaintiff then filed the pending motion for default judgment against Defendants.
Rule 55(b)(2) of the Federal Rules of Civil Procedure governs applications to the court for default judgment. See Fed. R. Civ. P. 55(b)(2). Default judgment is available as long as the plaintiff establishes (1) defendant has been served with the summons and complaint, and default was entered for their failure to appear; (2) defendant is neither a minor nor an incompetent person; (3) defendant is not in military service or not otherwise subject to the Soldiers and Sailors Relief Act of 1940; and (4) if defendant has appeared in the action, that defendant was provided with notice of the application for default judgment at least three days prior to the hearing. See, e.g., 50 U.S.C. § 521; Fed. R. Civ. P. 55; Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D. Ariz. 2006).
Entry of default judgment is within the trial court's discretion. See Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 660 (S.D. Cal. 1997) (Brewster, J.) (citing Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956)). In making this determination, the court considers 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 the 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).
Upon entry of default, the factual allegations in plaintiff's complaint, except those relating to damages, are deemed admitted. E.g., Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)). Where the amount of damages claimed is a liquidated sum or capable of mathematical calculation, the court may enter a default judgment without a hearing. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981). 1997)). When it is necessary for the plaintiff to prove unliquidated or punitive damages, the court may require plaintiff to file declarations or affidavits providing evidence for damages in lieu of a full evidentiary hearing. Transportes Aereos De Angola v. Jet Traders Invest. Corp., 624 F.Supp. 264, 266 (D. Del. 1985).
A. Plaintiff's Request for ...