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J & J Sports Productions, Inc v. Dulce Torres Dba El Malecon Bar & Grill

March 17, 2011

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
DULCE TORRES DBA EL MALECON BAR & GRILL, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on March 9, 2011, for hearing of plaintiff's motion for default judgment against defendant Dulce Torres, individually and doing business as El Malecon Bar & Grill. Dckt No. 9. Andre LeLievre appeared for Thomas P. Riley on behalf of plaintiff. No appearance was made by or on behalf of defendant at the hearing.

Plaintiff's counsel indicated at the hearing that as of 3:30 p.m. on the day before the hearing, there had been 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 January 12, 2011. Nor has any opposition to plaintiff's motion for entry of default judgment despite being served with the motion. Upon hearing argument, the court advised counsel of the intended decision and took plaintiff's motion under submission.

The undersigned has fully considered the briefs and record in this case and for the reasons set forth below, the undersigned recommends that plaintiff's motion be granted and that default judgment be entered against defendant.

I. BACKGROUND*fn1

The complaint was filed November 9, 2010. Dckt. No. 1. A summons was returned executed and filed December 9, 2010. Dckt. No. 5. The return of service indicates Rudy Torres, the person in charge at the subject establishment, was served with process after three attempts at personal service. The summons and complaint was then mailed to plaintiff at the business address of the subject establishment. Service on defendant is proper pursuant to Federal Rule of Civil Procedure 4(e)(1) and California Civil Procedure Code section 415.20(b).

A request for default was filed January 10, 2011 and default entered by the clerk on January 12, 2011. Dckt. Nos. 7, 8. The motion for default judgment, along with declarations of plaintiff's attorney, the president of the plaintiff business, and the declaration of an investigator, Jessica Haverty, was filed January 28, 2011. Dckt. No. 9. The motion was served on defendant at defendant's business address.

Plaintiff, a California corporation, is a closed-circuit distributor of sports and entertainment programming. Pl.'s Compl. ¶ ¶ 6,9, Dckt. No. 1; GagliardiAff. ¶ 3, Dckt. No. 9. Pursuant to a contract, plaintiff acquired exclusive commercial exhibition licensing rights to a televised boxing match titled "Firepower:" Manny Pacquiao v. Miguel Cotto WBO Welterweight Championship Fight Program, ("Program"), which was broadcast on Saturday, November 14, 2009. Pl.'s Compl. ¶ 9; 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., casinos, racetracks, bars, restaurants, nightclubs). Pl.'s Compl. ¶ 10; Gagliardi Aff. ¶ 3. Plaintiff made transmission of the Program available only to its 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. ¶ 10. For example, to exhibit the Program in a commercial establishment that had a fire code occupancy of seventy persons, the commercial sublicense fee would have been $2,200. Gagliardi Aff. ¶ 8 & Ex. 1.

Defendant is alleged to be the owner, operator, licensee, or person in charge of the commercial establishment doing business as El Malecon Bar & Grill. Pl.'s Compl. ¶ 7; Haverty Aff. at 2, Dckt. No. 9, Doc. 11-3. El Malecon Bar & Grill is located at 2518 East Fremont Street, in Stockton, California. Pl.'s Compl. ¶ 7; Haverty Aff. at 2. Defendant did not obtain a license to exhibit the Program from plaintiff.

On November 14, 2009, plaintiff's investigator, Jessica Haverty, entered El Malecon Bar & Grill and observed the unauthorized broadcast of a portion of the Program on three screens in the establishment, a Vizio 42" flat screen, a 52" screen, brand unknown, and a 20" television on the counter behind the bar. Haverty Aff. at 2. A five dollar cover charge was paid. Id. Haverty's affidavit approximates El Malecon Bar & Grill's seating capacity at 70 people, and states that Haverty observed approximately 17 patrons inside the subject establishment. Id.

On November 9, 2010, plaintiff filed this action alleging that defendant unlawfully intercepted and intentionally broadcast the Program at El Malecon Bar & Grill 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 defendant 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.*fn2 Pl.'s Compl. ¶¶ 8-17. The second claim alleges that defendant engaged in the unauthorized interception, reception, divulgence, display, and exhibition of the Program in violation of 47 U.S.C. §§ 553 et seq.*fn3 Id. ¶¶ 18-22. Plaintiff's third claim alleges a common law claim of conversion. Id. ¶¶ 23-26. The fourth claim for relief alleges a violation of California Business and Professions Code §§ 17200 et seq. Id ¶¶ 28-37.

A declaration of service filed with the court demonstrates that defendant was properly served through substituted service on December 4, 2010. Dckt. No. 5. On January 12, 2011, the Clerk of this Court entered a certificate of entry of default against defendants. Dckt. No. 8. On January 28, 2011, plaintiff filed the motion for default judgment that is presently before the court and which was served on defendant. Dckt. No. 9. 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.*fn4

Plaintiff requests judgment in the amount of $112,200.*fn5 No response to the ...

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