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J & J Sports Productions, Inc v. Dulce Torres

September 22, 2011

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
DULCE TORRES, INDIVIDUALLY AND D/B/A PRIME TIME BAR AND GRILL A/K/A EL MALECON BAR & GRILL, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's application for default judgment (Dkt. No. 8), to which no written opposition was filed.*fn1 The court heard plaintiff's application for default judgment on its law and motion calendar on September 22, 2011. Plaintiff's counsel's appearance at the hearing was excused by an order entered in advance of the hearing. (Order, Sept. 20, 2011, Dkt. No. 11.) No appearance was made by or on behalf of defendant. For the reasons stated below, the undersigned recommends that plaintiff's motion for default judgment be granted, that judgment be entered in plaintiff's favor, and that plaintiff be awarded $10,000 in damages.

I. BACKGROUND*fn2

Plaintiff, a California corporation, is a closed-circuit distributor of sports and entertainment programming. (See Pl.'s Compl. ¶¶ 6, 10-11, Dkt. No. 1; Gagliardi Aff. ¶ 3, Dkt. No. 8, Doc. No. 8-4.) Pursuant to a contract, plaintiff acquired exclusive commercial exhibition licensing rights to a televised boxing match entitled "'The Event': The Manny Pacquiao v. Joshua Clottey, WBO Welterweight Championship Fight Program," which was broadcast via telecast on Saturday, March 13, 2010 (the "Program").*fn3 (Pl.'s Compl. ¶¶ 9-10; Gagliardi Aff. ¶ 3 & Ex. 1.) 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., hotels, racetracks, casinos, taverns, bars, restaurants, social clubs, etc.). (Pl.'s Compl. ¶ 10; Gagliardi Aff. ¶ 3.) Plaintiff made transmission of the Program available only to its commercial 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. ¶¶ 10-11.) For example, to exhibit the Program in a commercial establishment that had a maximum occupancy of 101 to 200 people, the commercial sublicense fee would have been $2,000. (Gagliardi Aff. ¶ 8 & Ex. 2.)

Defendant is alleged to be an owner, operator, licensee, permittee, person in charge of, and doing business as, Prime Time Bar and Grill, also known as El Malecon Bar & Grill, operating at 2518 East Fremont Street, Stockton, California 95205 ("Prime Time"). (Pl.'s Compl. ¶ 7; Exhibits to Medine Aff., Dkt. No. 8, Doc. No. 8-3.) Defendant did not obtain a license to exhibit the Program from plaintiff. (See Pl.'s Compl. ¶¶ 12-13; Gagliardi Aff. ¶ 7.)

On March 12, 2010, plaintiff's investigator, John Medine of Slay & Associates investigative agency, entered Prime Time and observed the unauthorized broadcast of a portion of the Program on four televisions located inside the establishment. (Medine Aff. at 2.) Medine represents that he entered Prime Time at approximately 8:30 p.m. after paying a five dollar cover charge, purchased a beverage from the bar, observed the first three rounds of the "Pacquiao v. Clottey" fight on the four televisions, and left the establishment at about 9:10 p.m. (Id. at 2-3.) Medine states that he counted the number of patrons at Prime Time three times, resulting in "head counts" of 157, 159, and 161 patrons. (Id. at 3.)

On March 9, 2011, plaintiff filed this action alleging that defendant unlawfully intercepted and intentionally broadcast the Program at Prime Time 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.*fn4 (Pl.'s Compl. ¶¶ 8-17.) Its second claim alleges that defendant engaged in the unauthorized interception, reception, divulgence, display, and exhibition of the Program at Prime Time in violation of 47 U.S.C. §§ 553 et seq.*fn5 (Pl.'s Compl. ¶¶ 18-22.) Plaintiff's third claim alleges a common law claim of conversion. (Id. ¶¶ 23-26.) Its fourth claim for relief alleges a violation of California Business and Professions Code §§ 17200 et seq. (Pl.'s Compl. ¶¶ 27-36.)

On June 22, 2011, plaintiff filed a Proof of Service with the court that demonstrates that on May 20, 2011, May 21, 2011, and May 24, 2011, plaintiff, through a process server, attempted personal service on defendant at the address for Prime Time, 2518 East Fremont Street, Stockton, California 95205. (Proof of Service, Dkt. No. 5.) It further reflects that on May 24, 2011, plaintiff's process server left the summons, complaint, and related documents with "John Doe"-a person listed as the "person in charge" who refused to provide his name-with instructions to deliver the documents to defendant. (Id.) The Proof of Service further reflects that a copy of the summons, complaint, and related documents were mailed to defendant on May 25, 2011. (Id.)

On June 28, 2011, plaintiff requested that default be entered by the Clerk of Court against defendant. (Req. To Enter Default, Dkt. No. 6.) On June 29, 2011, the Clerk of Court entered a certificate of entry of default against defendant. (Cert. of Entry of Default, Dkt. No. 7.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendant was duly served with process yet failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Id.)

On July 22, 2011, plaintiff filed the application for default judgment that is presently before the court. 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.*fn6 Plaintiff requests judgment in the amount of $112,000.*fn7 Plaintiff filed proofs of service indicating that it served defendant with the application for default judgment and related documents by mail. (See Proofs of Service, Dkt. No. 8.) No response to plaintiff's application is on record in this action.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action[,] (5) the possibility of a dispute concerning material facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily ...


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