FINDINGS & RECOMMENDATIONS
This matter came before the court on January 21, 2011, for hearing of plaintiff's motion for default judgment against defendant Victoria Juarez, individually and doing business as Victoria's Mexican Food. (Doc. No. 14). Andre LeLievre appeared for Thomas P. Riley on behalf of plaintiff. No appearance was made by or on behalf of defendant at the hearing.*fn1
Plaintiff's counsel indicated at the hearing that he has had no contact with defendant since the filing of the action. The court's docket reflects that defendant has not filed any motion for relief from the Clerk's Entry of Default on August 13, 2011, 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 defendant.
Plaintiff Joe Hand Promotions, Inc. is a closed-circuit distributor of sports and entertainment programming. Defendant Juarez operates a restaurant called "Victoria's Mexican Restaurant" at 526 W. Benjamin Holt Dr. #G in Stockton, California. By contract, plaintiff was granted exclusive domestic closed-circuit licensing rights to the "Ultimate Fighting Championship 97: 'Redemption': Silva v. Leites," broadcast on Saturday, April 18, 2009 ("The Program"). Defendant intercepted and exhibited the program in the commercial establishment referred to above without authorization to do so.
The record reflects that defendant was properly served with process by substituted service on June 24, 2010 and default was entered on August 13, 2010. (Doc. Nos. 8 and 9.) On December 14, 2010, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendant.
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 ¶ ...