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Joe Hand Promotions, Inc v. Tu Minh Nguyen

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


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 § 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 face of the pleadings 16 alone. By failing to appear in this action, Defendant has waived the opportunity to present facts in 17 support of an affirmative defense based upon the statute of limitations. See In re Estate of 18

Plaintiff did not file the Complaint until Tuesday, August 10, 2010. 5 Supp. of Pl.'s Appl. for Default Judgment ¶¶ 6-8; Decl. of Phil Nabal & Ex. A. In the Ninth 8 v. Martinez, 2010 WL 1038467, at *4 (citing Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 14

Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493, 495 n.2 (9th Cir. 1992) (statute of 2 limitations defense is "is an affirmative defense which was waived by virtue of [defendant's] 3 default"). For this reason, the statute of limitations does not prevent Plaintiff from seeking 4 damages under 47 U.S.C. § 605. 5 than $1,000 and not more than $10,000 for each violation of §605(a), as the Court considers just. 8

2.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

"A traditional method of determining statutory damages is to estimate either the loss incurred by 9 the plaintiff or the profits made by the defendants." Joe Hand Promotions v. Kim Thuy Ho, No. C-10 license for the broadcast of the Program would have cost Defendant $925.00, based on the restaurant's 80-person capacity. See Pl.'s Aff. in Supp. 13 of Pl.'s Appl. for Default Judgment ¶ 8 & Ex. 1. Alternatively, as to potential profits of Defendant, 14 Plaintiff submits evidence that three separate head counts, at various times, revealed that the total 15 number of patrons was 40, 40, and 47, and that there was no cover charge. See Decl. of Affiant, 16 attached to Mot. for Default Judgment. As there is no evidence of how much Defendant made 17 during the unlawful exhibition of the Program, the Court shall base statutory damages on the cost 18 of the commercial license.

willfully and for the purpose of commercial advantage or private financial gain. See 47 U.S.C. 23 §605(e)(3)(C)(ii). In this case, there is no evidence that Defendant advertised the fight, charged a 24 cover charge, or had a minimum purchase requirement. According to Plaintiff's investigator, 25 Plaintiff also submits that the broadcast was encrypted and subject to distribution rights, and thus 27 Program." Pl.'s Mot. for Default Judgment at 4. The affidavit of Joe Hand, Jr., President of Joe 09-01435 RMW (N.D. Cal. Sept. 18, 2009) (citing cases). Plaintiff submits evidence that a commercial

Accordingly, the Court finds that Plaintiff is entitled to $1,000.00 in statutory damages.

3.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 six flat-screen televisions displaying the Program. See Decl. of Affiant at 2. 26 Defendant "must have committed wrongful acts in order to intercept, receive, and broadcast the 28

Hand Promotions, further describes the wrongful acts required to unlawfully intercept the 2 encrypted broadcast. See Pl.'s Aff. in Supp. of Pl.'s Appl. for Default Judgment ¶ 9. These facts, 3 taken together with the uncontroverted pleadings, do suggest that Defendant acted willfully for 4 commercial advantage and private financial gain.

6 circumstances. Courts in the Northern District of California have found relatively modest 7 enhancements proper when the case involved a limited number of patrons and when there was a 8 cover charge. See, e.g., Garden City Boxing Club, Inc. v. Lan Thu Tran, 2006 U.S. Dist. LEXIS 9

$5,000 in enhanced damages when 40 patrons were present and a $10 cover charge was imposed).

Here, although there was no cover charge, the Program was shown at six televisions and there were

at the height 47 patrons present. In such circumstances, the Court views $3,000.00 as a reasonable 13 enhancement.*fn3

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 10

Accordingly, the Court finds Plaintiff entitled to $3,000.00 in enhanced damages.

B.Damages for Conversion

Plaintiff also seeks $925.00 in damages for conversion under California Civil Code §3336.

The elements of conversion are: 1) ownership of a right to possession of property; 2) wrongful 18 disposition of the property right of another; and 3) damages. See G.S. Rasmussen & Assoc. v. 19

Kalitta Flying Serv., 958 F.2d 896, 906 (9th Cir. 1992). Here, Plaintiff's well-pleaded allegations 20 regarding liability, which are taken as true now that the Clerk has entered default, are sufficient to 21 entitle Plaintiff to damages. Plaintiff alleges ownership of the distribution rights to the Program, 22 misappropriation of those rights by Defendant's unlawful interception, and damages. See Compl. 23

¶¶ 23-26. Damages for conversion are based on the value of the property at the time of conversion. 24

See Arizona Power Corp. v. Smith, 119 F.3d 888, 890 (9th Cir. 1941). Plaintiff submits evidence 25 that a commercial license for the broadcast of the Program would have cost Defendant $925.00, 2 based on Defendant's 80-person establishment capacity. See Pl.'s Aff. in Supp. of Pl.'s Appl. for 3

Default Judgment ¶ 8 & Ex. 1. Thus, Plaintiff's request is appropriate. 4

Accordingly, Plaintiff is entitled to $925.00 in damages for conversion.

C.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 8 and costs to the motion for default judgment. Accordingly, Plaintiff's counsel shall submit a 9 curriculum vitae or resume, billing and cost records, and any other documents supporting his 10 request for reasonable attorney's fees and costs by Friday, May 13, 2011.

II. ORDER

United States District Court

For the Northern District of California For the reasons detailed above, Plaintiff's motion for default judgment is GRANTED.

Judgment shall be entered in favor of Plaintiff Joe Hand Promotions, Inc. and against Defendant 14

Defendant Tu Minh Nguyen, doing business as Lang Du Cafe and Sao Bien Vietnamese 15

Restaurant, in the amount of $4,925.00 in total damages. Plaintiff's counsel shall file an affidavit 16 of attorney's fees and costs by Friday, May 13, 2011. The Clerk shall close the file. 17

IT IS SO ORDERED.


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