ORDER AND AMENDED FINDINGS & RECOMMENDATIONS
This matter came before the court on July 2, 2010, for hearing of plaintiff's motion for default judgment against defendants Jason Bernard Brown and Lawrence L. Brown, Individually and d/b/a American Spirit Sports Bar; and Jbeezy Enterprises, LLC, an unknown business entity d/b/a American Spirit Sports Bar. (Doc. No. 12). Attorney Lyle Solomon appeared specially for Thomas P. Riley 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 neither plaintiff nor plaintiff's counsel have received any contact from 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 April 13, 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.
On July 27, 2010, the undersigned issued findings and recommendations recommending that plaintiff's motion be granted and that default judgment be entered against defendants in the sum of $3,800 consisting of $3,000 in statutory damages for violating 47 U.S.C. § 553 and $800 in damages for the tort of conversion. (Doc. No. 15 at 9.) In so recommending the court noted that, "although not entirely clear" from plaintiff's motion, it appeared that the pirated program in question was a cable television broadcast and not a satellite broadcast. (Id. at 4, n.1.) Therefore, the court recommended entry of default only with respect to Count Two of the complaint charging a violation of 47 U.S.C. § 553 (interception of a cable signal) and not on Count One charging a violation of 47 U.S.C. § 605 (interception of a satellite signal). (Id.)
On August 17, 2010, counsel for plaintiff filed objections to the findings and recommendations. Therein, counsel argued that the court had misinterpreted the investigator's affidavit submitted in support of the application for default judgment and that, in fact, the affidavit established that the intercepted program was a satellite broadcast thereby justifying the award of damages under 47 U.S.C. § 605 rather than 47 U.S.C. § 553. (Pl's Objections (Doc. No. 16) at 7-8 of 16.)*fn1 In addition, plaintiff objected to the amount of statutory damages recommended, the failure to recommend enhanced statutory damages and the damages amount awarded with respect to the conversion count. (Id. at 8-15 of 16.)
The undersigned reviewed plaintiff's objections and found that some, but not all, of those objections were well-taken. Accordingly, the findings and recommendations issued July 27, 2010, are hereby vacated and these amended findings and recommendations are issued.
Plaintiff Joe Hand Promotions, Inc. is an international distributor of sports and entertainment programming. Defendants Jason Bernard Brown and Lawrence L. Brown operate the commercial establishment called "American Spirit Sports Bar" located at 3270-3272 Northgate Boulevard in Sacramento, California. By contract, plaintiff was granted the proprietary rights to distribute, via closed-circuit television, the "Ultimate Fighting Championship 94: St.-Pierre v. Penn 2" event (the "Program") which was telecast nationwide on Saturday, January 31, 2009. Defendants intercepted and exhibited the program in the commercial establishment referred to above without authorization to do so.
The record reflects that service of process was effected on defendants on March 18, 2010, by personal service. (Doc. Nos. 5, 6 and 7.) After defendants failed to file an answer, plaintiff filed a request for entry of default on April 9, 2010. (Doc. No. 8.) The Clerk entered default against the defendants on April 13, 2010. (Doc. No. 9.) On May 22, 2010, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendants by mail.
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 ...