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J & J Sports Productions, Inc v. Karnail Singh Gidha

February 22, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is plaintiff's application for default judgment.*fn1 Because oral argument would not materially aid the resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has fully considered the briefs and record in this case and, for the reasons stated below, recommends that plaintiff's application for default judgment be granted. //// //// ////


Plaintiff, a California corporation, is a closed-circuit distributor of sports and entertainment programming. (Pl.'s Compl. ¶ 6, Dkt. No. 1; Gagliardi Aff. ¶ 3, Dkt. No. 9, Doc. No. 9-4.) Pursuant to a contract, plaintiff acquired exclusive commercial exhibition licensing rights to a televised boxing match entitled "'Number One': The Floyd Mayweather, Jr. v. Juan Manuel Marquez, Championship Fight Program," which was broadcast via telecast on Saturday, September 19, 2009 (the "Program").*fn3 (Pl.'s Compl. ¶ 10; Gagliardi Aff. ¶ 3.) Thereafter, plaintiff entered into sublicensing agreements with various commercial entities across North America, through which it granted limited public exhibition rights to the entities for the benefit and entertainment of the patrons within the entities' respective establishments (e.g., hotels, racetracks, casinos, taverns, bars, restaurants, social clubs, etc.). (Pl.'s Compl. ¶ 11; Gagliardi Aff. ¶ 3.) Plaintiff made transmission of the Program available only to its commercial customers, which were commercial entities that had paid plaintiff a commercial sublicense fee to broadcast the program. (Gagliardi Aff. ¶ 8; see also Pl.'s Compl. ¶ 11.) For example, to exhibit the Program in a commercial establishment that had a fire code occupancy limit of 105 persons, the commercial sublicense fee would have been $2,800. (Gagliardi Aff. ¶ 8 & Ex. 1.)

Defendants are alleged to be the owners, operators, licensees, permittees, persons in charge of, and to do business as, Lamppost Pizza, located at 3315 Northgate Boulevard, Sacramento, California 95834 ("Lamppost Pizza").*fn4 (Pl.'s Compl. ¶¶ 7-8; Slay Aff. at 2, Dkt. No. 9, Doc. No. 9-3.) Defendants did not obtain a license to exhibit the Program from plaintiff.

(See Pl.'s Compl. ¶¶ 13-14.)

On September 19, 2009, plaintiff's investigator, Sean Slay of Slay & Associates, entered Lamppost Pizza and observed the unauthorized broadcast of a portion of the Program on one 50-inch television and one 27-inch television.*fn5 (Slay Aff. at 2.) Slay's affidavit approximates Lamppost Pizza's capacity at 105 people, and states that Slay observed between 16 and 21 patrons inside the establishment during the brief time he was present. (Id. at 2-3.)

On September 16, 2010, plaintiff filed this action alleging that defendants unlawfully intercepted and intentionally broadcast the Program at Lamppost Pizza for the purpose of direct or indirect commercial advantage and/or private financial gain. (See generally Pl.'s Compl.) Plaintiff alleges four claims for relief, which are labeled as "Counts" in the complaint. Plaintiff's first claim for relief alleges that defendants engaged in the unauthorized publication or use of communications in violation of the Federal Communications Act of 1934, 47 U.S.C. §§ 605 et seq.*fn6 (Pl.'s Compl. ¶¶ 9-18.) Its second claim alleges that defendants engaged in the unauthorized interception, reception, divulgence, display, and exhibition of the Program at Lamppost Pizza in violation of 47 U.S.C. §§ 553 et seq.*fn7 (Pl.'s Compl. ¶¶ 19-23.) Plaintiff's third claim alleges a common law claim of conversion. (Id. ¶¶ 24-27.) Its fourth claim for relief alleges a violation of California Business and Professions Code §§ 17200 et seq. (Pl.'s Compl. ¶¶ 28-37.)

Separate Proofs of Service filed with the court demonstrate that on December 3, 2010, plaintiff, through a process server, attempted personal service on each defendant at the address of Lamppost Pizza, 3315 Northgate Boulevard, Sacramento, California 95834. (Proofs of Service, Dkt. Nos. 5-6.) The Proofs of Service state that as to each defendant, process was left with Manny Singh, who is described as the "person in charge," with instructions to deliver the documents to defendants, and that a copy of the summons, complaint, and related documents were mailed to each defendant on December 6, 2010.*fn8 (Id.)

On January 10, 2011, plaintiff requested that default be entered by the Clerk of Court as to both defendants. (Req. To Enter Default, Dkt. No. 7.) On January 11, 2011, the Clerk of this Court entered a certificate of entry of default against defendants. (Dkt. No. 8.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendants were duly served with process yet failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Id.)

On January 19, 2011, plaintiff filed the application for default judgment that is presently before the court. The application seeks judgment on plaintiff's claims for violation of 47 U.S.C. § 605 and 47 U.S.C. § 553, and for common law conversion.*fn9 Plaintiff requests judgment in the amount of $112,800.*fn10 Plaintiff filed a proof of service indicating that it served defendants with the notice of the application for default judgment by mail. (Proof of Service, Dkt. No. 9 at 4.) No response to this application is on record in this action. //// ////


Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 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 material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal ...

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