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J & J Sports Productions, Inc v. Ramon Lopez Franco

July 31, 2012

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
RAMON LOPEZ FRANCO,
DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO DENY MOTION TO SET ASIDE ENTRY OF DEFAULT(ECF No. 19) OBJECTIONS DUE WITHIN FIFTEEN DAYS OF SERVICE

I. BACKGROUND

A. Plaintiff's Allegations

On September 15, 2011, Plaintiff filed a complaint against Defendant, Ramon Franco, doing business as El Jaliciense Bar.

The complaint alleges Defendant violated the Communications Act of 1934 (47 U.S.C. § 605, et seq.), The Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553, et seq.), and asserts causes of action for conversion and for violation of California Business and Professions Code § 17200, et. seq. The suit is based on Defendant's alleged unlawful interception, receipt, and exhibition of "200: Celebrate Dominate": Shane Mosley v. Sergio Mora (including all under-card bouts, televised replay and color commentary encompassed therein) telecast nationwide on December 4, 2010 (the "Program"). According to the complaint, Plaintiff was the exclusive commercial distributor of closed-circuit rights to the Program. Since Defendant operates El Jaliciense Bar, a commercial establishment, and exhibited the Program there, it could not have lawfully obtained the Program without contracting with Plaintiff. Defendant did not so contract, and thus necessarily must have wrongfully intercepted, received, and broadcasted the Program.

B. Procedural History

On February 1, 2012, Plaintiff filed a proof of service indicating that Defendant was served by substituted service on January 24, 2012, at 16581 Sheffield Street in Delhi, CA. (ECF No. 9.) On March 1, 2012, Plaintiff requested the Clerk of the Court enter default against Defendant, and default was entered that same day. On April 24, 2012, Plaintiff filed a motion for default judgment.

Defendant filed the present motion to set aside default on May 22, 2012. (ECF No. 19.) On May 31, 2012, Plaintiff filed an opposition. (ECF No. 22.) On May 24, 2012, the Court ordered the parties to meet and confer regarding the status of the case and the potential for resolution of it without further litigation and ordered Plaintiff to file a report of the results thereof. On July 3, 2012, Plaintiff's counsel reported that he had had discussions with Defendant (indirectly, through his son) on June 4, 2012, but that subsequent attempts to reach Defendant and his son had gone unanswered.*fn1

Accordingly, the Court will address the Motion to Set Aside Default. Pursuant to Local Rule 230(g), the Court deems the Motion submitted for decision without oral argument.

C. Defendants Claims to Set Aside Default

Defendant, in his motion to set aside default, denies that he was served with summons as indicated by Plaintiff. Instead, Defendant explains that he first learned of the lawsuit on February 7, 2012, when he received service by U.S. mail. Defendant claims that he since has been seeking affordable counsel.*fn2

(A careful reading of the instant motion indicates that it is a verbatim copy of the motion the same defendant filed in a previous case brought against him by the same Plaintiff relating to a different business. See J & J Productions v. Franco, 10-cv-1704-LJODLB, ECF No. 7. Defendant's present motion refers incorrectly to a business (the "Knock-out Bar") other than the commercial establishment where the acts in this Complaint are alleged to have occurred. This calls into question the applicability of the grounds presented in support of the motion.)

II. LEGAL STANDARD

Rule 55(c) of the Federal Rules of Civil Procedure provides that a court may set aside a default for "good cause shown." In this Circuit, the "good cause" standard that governs vacating an entry of default under Rule 55(c) is the same standard that governs vacating a default judgment under Rule 60(b), i.e., one seeking to set aside a default judgment must demonstrate "mistake, inadvertence, surprise or excusable neglect." Franchise Holding II, LLC v. Huntington Restaurants Group, Inc., 375 F.3d 922, 925-926 (9th Cir. 2004); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001); Fed. R. Civ. P. 60(b)(1). However, the Court has "especially broad" discretion in setting aside entry of default as compared to a default judgment. ...


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