UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
March 21, 2011
J&J SPORTS PRODUCTIONS, INC.,
ANGEL FRAIDE PANIAGUA, D/B/A EL POLLO DORADO,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
(re: docket #12)
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
The Clerk of the Court entered default against Defendant Angel Fraide Paniagua, doing
18 business as El Pollo Dorado ("Defendant"), after Defendant failed to appear or otherwise respond 19 to the Summons and Complaint within the time prescribed by the Federal Rules of Civil Procedure. 20
Before the Court is Plaintiff J&J Sports Productions, Inc.'s motion for default judgment. See Dkt. 21
#12. Defendant, not having appeared in this action to date, has not opposed the motion. Pursuant 22 to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral 23 argument. The March 24, 2011 hearing is vacated. For the reasons discussed below, Plaintiff's 24 motion for default judgment is GRANTED. 25
Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns commercial distribution rights to broadcast the closed-circuit program, including all under-card 28 bouts, "'Firepower: Manny Pacquiao v. Miguel Cotto WBO Welterweight Championship Fight Program" ("Program"), originally broadcast nationwide on November 14, 2009. See Compl. ¶ 9.
Plaintiff alleges that the Program was unlawfully intercepted and exhibited by Defendant, at his 3 commercial establishment El Pollo Dorado, located in Salinas, California. Id. at ¶ 12. On 1934, as amended, 47 U.S.C. §605 and 47 U.S.C. §553, as well as violations of California law 6 against conversion and California Business and Professions Code §17200. In the pending motion 7 for default judgment, however, Plaintiff seeks damages only under §605 and for conversion.
November 12, 2010, Plaintiff filed this action for violation of the Federal Communications Act of Plaintiff requests $10,000.00 in statutory damages for violation of 47 U.S.C. §605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages for willful violation of 47 U.S.C.
Defendant would have been required to pay had he ordered the Program
from Plaintiff. Once the Clerk of Court enters default, all well-pleaded allegations regarding
liability are taken as true 13 except as to the amount of damages. See
Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th 14
Cir. 2002). Satisfied of its subject matter jurisdiction (federal
statutes at issue) and personal 15 jurisdiction (Defendant resides and
does business in this district), the Court shall proceed to review
Plaintiff's motion for default judgment.
than $1,000 and not more than $10,000 for each violation of
§605(a), as the Court considers just. 20
"A traditional method of determining statutory damages is to estimate either the loss incurred by 21 the plaintiff or the profits made by the defendants." Joe Hand Promotions v. Kim Thuy Ho, No. C-22
Plaintiff submits evidence that a commercial license for the broadcast of the Program would have cost Defendant $2,200.00, based on Defendant's 95-person establishment capacity. See Affidavit of Joseph M. Gagliardi, President of J&J Sports Productions, Inc., Exh. 1. Alternatively, 26 as to potential profits of Defendant, Plaintiff submits evidence that between 80 and 85 patrons were 27 present at El Pollo Dorado at the time of the Program, and that there was no cover charge. See §605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $2,200.00, the amount
1. Statutory Damages under Section 605(e)(3)(c)(i)(II)
Section 605(e)(3)(c)(i)(II) provides that an aggrieved party may recover a sum of not less 09-01435 RMW (N.D. Cal. Sept. 18, 2009) (citing cases). 23
Affidavit of Investigator Nathan Tate, attached to Mot. for Default Judgment. As there is no evidence of how much Defendant made during the unlawful exhibition of the Program, the Court 2 shall base statutory damages on the cost of the commercial license.
willfully and for the purpose of commercial advantage or private financial gain. See 47 U.S.C. §605(e)(3)(C)(ii). In this case, there is no evidence that Defendant advertised the fight, charged a 8 cover charge, or had a minimum purchase requirement. According to Plaintiff's investigator, 9
Affidavit at 2. Plaintiff also submits that the broadcast was encrypted and subject to distribution
rights, and thus Defendant "must have committed wrongful acts in order to intercept, receive, and
broadcast the Program. See Pl.'s Mot. for Default Judgment at 4. These facts, taken as true for 13 purposes of this motion for entry of default judgment, do suggest that Defendant acted willfully for commercial advantage and private financial gain.
16 circumstances. Courts in the Northern District of California have found relatively modest 17 enhancements proper when the case involved a limited number of patrons and when there was a 18 cover charge. See, e.g., Garden City Boxing Club, Inc. v. Lan Thu Tran, 2006 U.S. Dist. LEXIS 19 $5,000 in enhanced damages when 40 patrons were present and a $10 cover charge was imposed).
Here, where there were 80 to 85 patrons present and no cover charge, the Court views $2,200.00 as 22 a reasonable enhancement. However, Plaintiff's counsel has submitted a supplemental declaration 23 advising the Court of an additional action against Defendant for a similar violation. See 24
04180-JF). The Court agrees with Plaintiff that a higher amount of enhanced damages is 26 appropriate given Defendant's multiple violations. 27
Accordingly, the Court finds that Plaintiff is entitled to $2,200.00 in statutory damages.
2. Enhanced Damages under Section 605(e)(3)(C)(ii)
Enhanced damages of up to $100,000 are available when the violation was committed
Defendant had only one thirty-seven inch LCD television displaying the Program. See Tate The $100,000 maximum damages available, however, are not warranted under these
71116, at *5-6 (N.D. Cal. Sept. 20, 2006) (Whyte, J.) (awarding $1,000 in statutory damages and
Supplemental Decl. of Thomas Riley ¶ 4 (citing to J&J Sports, Inc. v. Fraide, Case No. 10-cv-25
Accordingly, the Court finds Plaintiff entitled to $4,400.00 in enhanced damages.
3. Damages for Conversion
Plaintiff also seeks $2,200.00 in damages for conversion under California Civil Code §3336. The elements of conversion are: 1) ownership of a right to possession of property; 2) 4 wrongful disposition of the property right of another; and 3) damages. See G.S. Rasmussen & 5
Assoc. v. Kalitta Flying Serv., 958 F.2d 896, 906 (9th Cir. 1992). Here, Plaintiff's well-pleaded 6 allegations regarding liability, which are taken as true now that the Clerk has entered default, are 7 sufficient to entitle Plaintiff to damages. Plaintiff alleges ownership of the distribution rights to the 8
Program, misappropriation of those rights by Defendant's unlawful
interception, and damages. See Compl. ¶¶ 23-26. Damages for conversion are based on the value of the
property at the time of 10 conversion. See Arizona Power Corp. v.
Smith, 119 F.3d 888, 890 (9th Cir. 1941). As noted above, the
commercial license would have cost Defendant $2,200.00, and thus Plaintiff's request is
Accordingly, Plaintiff is entitled to $2,200.00 in damages for conversion.
4. Costs and Fees
Costs and reasonable attorney's fees are recoverable under 47 U.S.C. § 605(e)(3)(b)(iii).
Plaintiff's counsel seeks recovery of fees and costs, but did not attach an affidavit of attorney's fees 17 and costs to the motion for default judgment. Accordingly, Plaintiff's counsel shall submit a 18 curriculum vitae or resume, billing and cost records, and any other documents supporting his 19 request for reasonable attorney's fees and costs by Friday, April 1, 2011.
For the reasons detailed above, Plaintiff's motion for default judgment is GRANTED.
Judgment shall be entered in favor of Plaintiff J&J Sports Productions, Inc. and against Defendant 23
Angel Fraide Paniagua, d/b/a El Pollo Dorado, in the amount of $8,800.00 in total damages. 24
Plaintiff's counsel shall file an affidavit of attorney's fees and costs by Friday, April 8, 2011. The March 24, 2011 hearing is vacated. The Clerk shall close the file.
IT IS SO ORDERED.
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