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. 13).*fn1 The court heard plaintiff's application for default judgment on its law and motion calendar on January 12, 2012. Attorney Thomas P. Riley appeared on behalf of plaintiff via telephone. No appearance was made by or on behalf of defendant. For the reasons stated below, the undersigned recommends that plaintiff's application for default judgment be granted, that judgment be entered in plaintiff's favor, and that plaintiff be awarded $10,000 in damages.
Plaintiff, a Pennsylvania corporation, is a closed-circuit distributor of sports and entertainment programming. (Compl. ¶ 6, Dkt. No. 1; Hand Aff. ¶ 3, Dkt. No. 15.*fn3 ) Pursuant to a contract, plaintiff acquired exclusive nationwide commercial exhibition licensing rights to a televised mixed-martial arts program entitled "Ultimate Fighting Championship 114: Rampage v. Evans," with a broadcast date of Saturday, May 29, 2010 (the "Program").*fn4 (Compl. ¶ 9; Hand Aff. ¶ 3.) 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.). (Compl. ¶ 10; Hand 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. (Hand Aff. ¶ 8; see also Compl. ¶ 10.) For example, to exhibit the Program in a commercial establishment that had a fire code occupancy limit of 75 persons, the commercial sublicense fee would have been $1,100. (Hand Aff. ¶ 8 & Ex. 1.)
Defendant is alleged to be the owner, operator, licensee, permittee, person in charge of, or to do business as Finnegans Pub & Grill, located at 6252 Pacific Avenue, Stockton, California 95207 ("Finnegans Pub"). (Compl. ¶ 7; see also Gravelyn Aff. at 2-4, Dkt. No. 13, Doc. No. 13-3.) Defendant did not obtain a license to exhibit the Program from plaintiff. (See Compl. ¶¶ 12-13; Hand Decl. ¶ 7.)
On May 29, 2010,*fn5 plaintiff's investigator, Gary
Gravelyn of Gravelyn & Associates, entered Finnegans Pub and observed
the unauthorized broadcast of a portion of the Program on four
televisions of varying sizes. (Gravelyn Aff. at 2.) Gravelyn attests
that he observed the third round of the undercard fight between Diego
Sanchez and John Hatheway. (Id.; see also Hand Aff., Ex. 1 (listing
the Sanchez/Hatheway fight as a fight included in the Program.)
Gravelyn's affidavit approximates Finnegans Pub's capacity at 75
people and states that he observed approximately 28 patrons inside the
establishment during the brief time he was present.*fn6
(Id. at 2-3.)
On May 25, 2011, plaintiff filed this action alleging that defendant unlawfully intercepted and intentionally broadcasted the Program at Finnegans Pub for the purpose of direct or indirect commercial advantage or private financial gain. (See generally 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.*fn7 (Compl. ¶¶ 8-17.) Its second claim alleges that defendant engaged in the unauthorized interception, reception, divulgence, display, and exhibition of the Program at Finnegans Pub in violation of 47 U.S.C. §§ 553 et seq.*fn8 (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. (Compl. ¶¶ 27-36.)
Plaintiff filed proofs of service with the court that demonstrate that on August 5, 2011, August 8, 2011, and August 9, 2011, plaintiff, through a process server, attempted personal service on defendant at the address of Finnegans Pub, 6252 Pacific Avenue, Stockton, California 95207. (Proofs of Service, Dkt. No. 7.) The proofs of service state that process was ultimately left with "CHRIS 'DOE' -- REFUSED LAST NAME -- PERSON IN CHARGE" on August 9, 2011, with instructions to deliver the documents to defendant." Plaintiff's process server subsequently mailed a copy of the summons, complaint, and related documents to defendant at the address for Finnegans Pub on August 10, 2011.
On September 9, 2011, plaintiff requested that default be entered by the Clerk of Court as to defendant. (Req. To Enter Default, Dkt. No. 8.) On September 14, 2011, the Clerk of Court entered a certificate of entry of default against defendant (Dkt. No. 10). 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.
On December 5, 2011, plaintiff filed its 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.*fn9 Plaintiff requests judgment in the amount of $111,100.*fn10 Plaintiff filed a proof of service indicating that it served defendant with all of plaintiff's moving and supporting papers (Dkt. Nos. 13, 15). No response to plaintiff's application for default judgment is on record in this action.
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 ...