ORDER AND FINDINGS & RECOMMENDATIONS
This matter came before the court on July 29, 2011, for hearing of plaintiff J & J Sports Production, Inc's ("plaintiff") motion for default judgment against defendants Jason Bernard Brown and Lawrence L. Brown, individually and d/b/a American Spirit Sports Bar, and Jbeezy Enterprises, LLC, an unknown business entity d/b/a American Spirit Sports Bar (collectively "defendants"). (Doc. No. 17.) Thomas P. Riley, Esq. appeared telephonically on behalf of plaintiff. No appearance was made by or for defendants.
Upon hearing argument, the court took plaintiff's motion under submission. For the reasons set forth below, the undersigned recommends that the motion be granted and that default judgment be entered against the defaulted defendants.
Plaintiff is an international distributor of sports and entertainment programming. Defendants operate a commercial establishment called "American Spirit Sports Bar" in Sacramento, California. By contract, plaintiff paid for the proprietary rights to distribute the "Oscar De La Hoya v. Manny Pacquiao Welterweight Championship Fight Program (sometimes herein the "Program")," which was telecast nationwide on Saturday, December 6, 2008, via closed-circuit television. Defendants intercepted and exhibited the Program in defendants' commercial establishment, American Spirit Sports Bar, without authorization.
Although service of process was effected on defendants (Doc. Nos. 6, 7 & 8), defendants failed to appear in this action. On April 29, 2011, plaintiff requested entry of default against defendants. (Doc. No. 11.) The Clerk entered default against defendants on May 2, 2011. (Doc. No. 12.) On June 21, 2011, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendants.
Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
Granting or denying default judgment is within the court's sound discretion.
Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are (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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ¶ 55-05, at 55-24 to 55-26).
I. Whether Default Judgment Should Be Entered
The factual allegations of plaintiff's complaint, taken as true pursuant to the entry of default against defendants, establish the following circumstances: (1) defendants are the owners, operators, licensees, permitees, persons in charge, or persons with control over the commercial establishment doing business as American Spirit Sports Bar in Sacramento, California; (2) by contract, plaintiff was granted exclusive nationwide television distribution rights to the "Oscar De La Hoya v. Manny Pacquiao Welterweight Championship Fight Program" telecast nationwide on December 6, 2008; (3) pursuant to the contract, plaintiff entered into sublicensing agreements with various commercial entities throughout North America by which it granted those entities limited sublicensing rights to exhibit the De La Hoya v. Pacquiao fight program to their patrons within their establishments; (4) plaintiff is also the assignee of the copyright to the Program for enforcement purposes and therefore, has lawful standing to bring the instant claims of piracy and infringement; (5) as a commercial distributor of sporting events, plaintiff expended substantial monies marketing, advertising, promoting, administering, and transmitting the Program to its customers; (6) with full knowledge that the Program was not to be intercepted, received, and exhibited by unauthorized entities, defendants exhibited the De La Hoya v. Pacquiao fight program at the time of its transmission and did so willfully and for purposes of commercial or private gain; (7) by receiving and exhibiting without authorization the satellite and/or cable transmissions of the Program, defendants infringed upon plaintiff's copyright rights; (8) by such actions, defendants violated Section 501(b) of the Copyright Act, 17 U.S.C. §§ 501(a), (b); (9) pursuant to the Copyright Act, plaintiff is entitled to damages, in the discretion of the court, up to a maximum amount of $150,000, pursuant to 17 U.S.C. § 504(c), as well as an award of attorneys' fees and costs pursuant to 17 U.S.C. § 505; (10) defendant also tortiously obtained possession of plaintiff's Program ...