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Joe Hand Promotions, Inc v. Tu Minh Nguyen

May 2, 2011

JOE HAND PROMOTIONS, INC.,
PLAINTIFF,
v.
TU MINH NGUYEN, INDIVIDUALLY AND DOING BUSINESS AS LANG DU CAFE, ALSO KNOWN AS SAO BIEN VIETNAMESE RESTAURANT,
DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

The Clerk of the Court entered default against Defendant Tu Minh Nguyen, doing business as Lang Du Cafe and Sao Bien Vietnamese Restaurant, after Defendant failed to appear or 20 otherwise respond to the Summons and Complaint within the time prescribed by the Federal Rules 21 of Civil Procedure. Before the Court is Plaintiff Joe Hand Promotions, Inc.'s motion for default 22 judgment. See ECF No. 15. Defendant, not having appeared in this action to date, has not filed an 23 opposition. Plaintiff's motion was originally set for hearing on March 31, 2011. However, on March 25, 2011, the Court vacated the motion hearing and requested supplemental briefing from Plaintiff regarding the timeliness of its claim under 47 U.S.C. § 605. Having read and considered Plaintiff's motion and supplemental brief, the Court finds this matter appropriate for resolution 27 without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons discussed below, the Court GRANTS Plaintiff's motion for default judgment.

commercial distribution rights to broadcast the closed-circuit program, including all under-card 4 bouts, Ultimate Fighting Championship 101: 'Declaration' (the "Program"), originally broadcast 5 nationwide on Saturday, August 8, 2009. See Compl. ¶ 9. Plaintiff alleges that the Program was 6 unlawfully intercepted and exhibited by Defendant, at his commercial establishment located in San 7

Communications Act of 1934, as amended, 47 U.S.C. §605 and 47 U.S.C. §553, as well as 9 violations of California law against conversion and California Business and Professions Code 10 §605 and for conversion.

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. 14 Defendant would have been required to pay had he ordered the Program from Plaintiff. Once the 16

Clerk of Court enters default, all well-pleaded allegations regarding liability are taken as true 17 except as to the amount of damages. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th 18 Cir. 2002). Satisfied of its subject matter jurisdiction (federal statutes at issue) and personal 19 jurisdiction (Defendant resides and does business in this district), the Court shall proceed to review 20 Plaintiff's motion for default judgment. 21

I. DISCUSSION

Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns

Jose, California. Id. at ¶ 12. In August 2010, Plaintiff filed this action for violation of the Federal 8 §17200. In the pending motion for default judgment, however, Plaintiff only seeks damages under §605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $925.00, the amount 15

A.Damages under § 605

1.Statute of Limitations

As noted above, the Court requested supplemental briefing regarding the timeliness of Plaintiff's claim for damages under 47 U.S.C. § 605. In DirecTV, Inc. v. Webb, the Ninth Circuit 25 held that the one-year statute of limitations under the California Privacy Act is properly applied to 26

§ 605 claims. 545 F.3d 837, 847-48 (9th Cir. 2008). In the order requesting supplemental briefing, 27 the Court stated that Plaintiff's § 605 claim appeared to be barred by this one-year statute of 28 limitations. The Court reasoned that Plaintiff's investigator learned of Defendant's wrongful conduct on August 8, 2009, when he witnessed the Program being broadcast at Defendant's 2 commercial establishment. Assuming the statute of limitations began to run on that date, Plaintiff 3 should have filed its Complaint no later than Monday,*fn1 August 9, 2010.*fn2 Instead, it appeared that 4

In its supplemental brief, Plaintiff submits evidence suggesting that the Complaint in this 6 case was received by the Clerk's Office on August 5, 2010. See Decl. of Inesa Mamidjanyan in 7 Circuit, a complaint is deemed filed "when it is placed in the actual or constructive custody of the 9 clerk." U.S. v. Dae Rim Fishery Co., Ltd., 794 F.2d 1392, 1395 (9th Cir. 1986). Accordingly, if 10 the Clerk's Office received Plaintiff's complaint by August 5, 2010, as Plaintiff claims, the ยง 605 claims would be timely. A court may deny a motion for entry of default judgment where a statute of limitations defense is apparent on the face of the complaint. See J & J Sports Productions, Inc. 13 (9th Cir. 2006)). Here, however, the declarations and evidence submitted by Plaintiff establish that 15 the date of filing is a question of fact that cannot be determined from the ...


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