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J & J Sports Productions, Inc v. Fortino Ortiz Tapia

May 24, 2011

J & J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
FORTINO ORTIZ TAPIA, ET AL.,
DEFENDANT.



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

ORDER GRANTING MOTION TO SET ASIDE DEFAULT, DENYING MOTION FOR DEFAULT JUDGMENT AS MOOT

On November 12, 2010, J & J Sports Productions, Incorporated (Plaintiff) filed a complaint alleging illegal interception and display of a fight program by Fortino Ortiz Tapia (Defendant).

Plaintiff served Defendant with a copy of the complaint on December 9, 2010. Defendant did not 20 file an answer to the complaint, and Plaintiff requested entry of default on January 10, 2011. The Clerk's office entered default against Defendant on January 12, 2011. Plaintiff filed a Motion for Default Judgment (Default Motion) on January 25, 2011. On March 28, 2011, Defendant filed a Motion to Set Aside Default (Set Aside Motion). The Court set these motions for hearing on May 26, 2011. The Court has determined that these matters are suitable for decision without oral 25 argument, pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing on these motions is 26 hereby VACATED. For the reasons set forth below, the Court GRANTS Defendant's Set Aside

Motion and DENIES Plaintiff's Default Motion as moot. 28

I. BACKGROUND

Plaintiff claims to possess the exclusive nationwide commercial distribution rights to the November 14, 2009 telecast of "Firepower": Manny Pacquiao v. Miguel Cotto WBO Welterweight 4 Championship Fight Program (the "Program"). Dkt. No. 1 ("Compl."). These distribution rights 5 included additional, preliminary ("under-card") bouts and fight commentary. Id. ¶ 9. Plaintiff 6 alleges that Defendant illegally intercepted and displayed the Program at his business, El Nayariga 7 Motion, Plaintiff submitted the declaration of Nathan Tate. See Dkt. No. 13, Ex. 3 (Tate Decl.)

Restaurant (a.k.a. "Mariscos Nayariga 1") (hereinafter "Restaurant"). In support of its Default 8 Tate declares that he visited the Restaurant on November 14, 2009 at 8:01 p.m. He paid no cover 10 charge to enter. He observed one "medium-size" television displaying one of the under-card bouts from the Program. See Dkt. No. 13, Ex. 4 (Gagliardi Decl.) at ¶ 7. He also observed "8 x 11" signs on the Restaurant walls that "said 'Saturday 14 Fight Pacquiao v. Cotto.'" Tate Decl. Tate 13 states that the Restaurant's capacity was 80 people, and that he counted 75 people in the restaurant 14 between 8:01 p.m. and 8:05 p.m. Id. 15

Default Motion, Plaintiff moved for default judgment against Defendant on the following claims in 17 the complaint: (1) Violation of 47 U.S.C. § 605, et seq. and (3) Conversion. Plaintiff's complaint 18 seeks $100,000 in "statutory damages for each willful violation" and a recovery of "full costs, 19 including reasonable attorneys' fees." Compl. at ¶ 17. In the Default Motion, however, Plaintiff 20 seeks $110,000 for the violation of 47 U.S.C. § 605 et seq: $10,000 in statutory damages (the 21 maximum allowable for statutory damages), plus $100,000 enhanced damages for willfulness.

Decl.) at ¶¶ 3-4. Defendant's son states that Defendant is primarily Spanish-speaking and reads no English, and that Defendant mistakenly believed that he had no obligation to respond to the 26 complaint because he was in Mexico when it was served. Id. at ¶¶ 5-6. After the Clerk's office 27 entered default against Defendant, and Plaintiff filed its Default Motion on January 25, 2011,

Based on the allegations in its complaint and the declarations submitted in support of its

Defendant's attorney has submitted a declaration from his son stating that Defendant was in Mexico when a copy of the complaint was served at the Restaurant. See Dkt. No. 16, Ex. 1 (Tapia 24

Defendant's son contacted Defendant's current counsel. Defendant's counsel in turn contacted counsel for Plaintiff on January 28, 2011. See Dkt. No. 16, Ex. 2 (Harris Decl.) at ¶ 1. Thereafter, 2 the parties (through counsel) attempted to settle the case via telephone conversations and written 3 correspondence. Harris Decl. at ¶ 5. Defendant's counsel states that it "became clear that the 4 parties could not reach a settlement" on or about March 18, 2011, and that Defendant's counsel 5

Defendant has not yet filed an answer to the complaint. Defendant submitted an untimely 7 opposition to the Default Motion on May 12, 2011. Plaintiff moved for ...


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