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J&J Sports Productions, Inc v. Kim Hung Ho

January 18, 2012

J&J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
KIM HUNG HO, INDIVIDUALLY AND D/B/A THOA CAFE,
DEFENDANT.



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

ORDER GRANTING MOTION FOR DEFAULT JUDGMENT (re: dkt # 10)

The Clerk of the Court entered default against Defendant Kim Hung Ho, doing business as Thoa Cafe ("Defendant" or "Thoa Cafe") on July 21, 2011, after Defendant failed to appear or 19 otherwise respond to the Summons and Complaint in this case within the time prescribed by the 20 Federal Rules of Civil Procedure. See ECF No. 12. Before the Court is Plaintiff J&J Sports 21 Productions, Inc.'s motion for default judgment. See ECF No. 15. Defendant, not having appeared 22 in this action to date, has not opposed the motion. Pursuant to Civil Local Rule 7-1(b), the Court 23 finds this matter appropriate for determination without oral argument. For the reasons discussed 24 below, Plaintiff's motion for default judgment is GRANTED.

I.BACKGROUND

Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns 27 commercial distribution rights to broadcast the closed-circuit program "'The Event': The Manny 28 Pacquiao v. Joshua Clottey, WBO Welterweight Championship Fight Program" ("Program"), telecast nationwide on March 13, 2010. See Compl. ¶ 9. Plaintiff alleges that the Program was 2 unlawfully intercepted and exhibited by Defendants at their commercial establishment, Thoa Cafe, 3 located in San Jose, California. Id. at ¶ 12. On March 3, 2011, Plaintiff filed this action for 4 violation of the Federal Communications Act of 1934, as amended, 47 U.S.C. § 605 and 47 U.S.C. 5 Professions Code §17200. In the pending motion for default judgment, however, Plaintiff seeks 7 damages only under § 605 and for conversion.

§ 553, as well as violations of California law against conversion and California Business and 6

II.DISCUSSION

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. § 605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $2,000.00, the licensing fee Defendant would have been required to pay had he ordered the Program from Plaintiff. Once the Clerk of Court enters default, all well-pleaded allegations regarding liability are taken as true, 14 except as to the amount of damages. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th 15 Cir. 2002). Satisfied of its subject matter jurisdiction (federal statutes at issue) and personal 16 jurisdiction (Defendant resides and does business in this district), the Court shall proceed to review 17 Plaintiff's motion for default judgment. 18

20 than $1,000 and not more than $10,000 for each violation of § 605(a), as the Court considers just. 21

"A traditional method of determining statutory damages is to estimate either the loss incurred by 22 the plaintiff or the profits made by the defendants." Joe Hand Promotions v. Kim Thuy Ho, No. C- 23

Plaintiff submits evidence that a commercial license for the broadcast of the Program would 25 have cost Defendant $2,000.00, based on Thoa Cafe's 200-person capacity. See Supp. Aff. of 26 Plaintiff submits evidence that three separate head counts, at various times, revealed that the total 28 number of patrons was 125, 125, and 115, and that there was no cover charge. See Aff. of Gary

A.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 09-01435 RMW, 2009 WL 3047231, at *1 (N.D. Cal. Sept. 18, 2009) (citing cases). 24 Joseph M. Gagliardi ¶ 8 & Ex. 2, ECF No. 15-5. Alternatively, as to Defendant's potential profit, 27

Gravelyn, ECF No. 15-3. As there is no evidence of how much Defendant made during the 2 unlawful exhibition of theProgram, the Court shall base statutory damages on the cost of the 3 commercial license. 4

upon finding that the violation "was committed willfully and for purposes of direct or indirect 8 commercial advantage or private financial gain." ...


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