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Joe Hand Promotions, Inc v. Findings and Recommendations Christopher Martin Fierro

September 10, 2012

JOE HAND PROMOTIONS, INC.,
PLAINTIFF,
v.
FINDINGS AND RECOMMENDATIONS CHRISTOPHER MARTIN FIERRO, DBA CANTEENA, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

Plaintiff brings this civil action for damages under 42 U.S.C. §§ 605, et seq., 47 U.S.C. §§ 533, et. seq., and California Business & Professions Code § 17200. Defendant failed to respond to the complaint and default was entered on December 15, 2011. Pending before the court is plaintiff's motion for a default judgment (Doc. 8). A hearing was held before the undersigned in Redding, California, on March 14, 2012. Thomas Peter Riley, Jr., Esq., appeared for plaintiff.

I. BACKGROUND

A. Plaintiff's Allegations

Plaintiff was granted the exclusive license for commercial distribution rights to Ultimate Fight Championship 118: Frankie Edgar v. BJ Penn 2 ("the program"), telecast nationwide on August 28, 2010. Plaintiff entered into a subsequent sub-licensing agreement with various commercial entities in North America for public exhibition of the program within their respective commercial establishments. Defendant does business as the Canteena located in Paradise, California. Plaintiff claims that defendant intercepted the broadcast of the program and exhibited it at the Canteena, a commercial establishment. Plaintiff alleges that such interception and exhibition was done willfully and for the purpose of direct and/or indirect commercial and/or private financial gain. Plaintiff does not allege that defendant is a repeat offender.

In addition to alleging federal and state statutory violations (Counts I, II, and IV of the complaint), plaintiff alleges a state tort claim for conversion (Count III of the complaint).

B. Procedural History

Plaintiff's complaint was personally served on October 27, 2011. As of December 15, 2011, no response had been filed and the Clerk of the Court properly entered defendant's default.

II. STANDARDS FOR DEFAULT JUDGMENT

Whether to grant or deny default judgment is within the discretion of the court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising this discretion, the court considers the following factors: (1) the possibility of prejudice to the plaintiff if relief is denied; (2) the substantive merits of plaintiff's claims; (3) the sufficiency of the claims raised in the complaint; (4) the sum of money at stake; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy favoring decisions on the merits when reasonably possible. See Eitel v. McCool, 782 F.2d 1470, 1471-72

(9th Cir 1986). Regarding the last factor, a decisions on the merits is impractical, if not impossible, where defendants refuse to defend. See Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002).

Where a defendant has failed to respond to the complaint, the court presumes that all well-pleaded factual allegations relating to liability are true. See Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam); Danning v. Lavine, 572 F.2d 1386 (9th Cir. 1978); Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam); see also Discovery Communications, Inc. v. Animal Planet, Inc., 172 F. Supp. 2d 1282, 1288 (C.D. Cal. 2001). Therefore, when determining liability, a defendant's default functions as an admission of the plaintiff's well-pleaded allegations of fact. See Panning v. Lavine, 572 F.2d 1386 (9th Cir. 1978). However, the court has the responsibility of determining whether the facts alleged in the complaint state a claim which can support the judgment. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). For this reason, the district court does not abuse its discretion in denying default judgment where the factual allegations as to liability lack merit. See Aldabe, 616 F.2d at 1092-93.

While factual allegations concerning liability are deemed admitted upon a defendant's default, the court does not presume that any factual allegations relating to the amount of damages suffered are true. See Geddes, 559 F.2d at 560. The court must ensure that the amount of damages awarded is reasonable and demonstrated by the evidence. See id. In discharging its responsibilities, the court may conduct such hearings and make such orders as it deems necessary. See Fed. R. Civ. P. 55(b)(2). In assessing damages, the court must review the facts of record, requesting more information if necessary, to establish the amount to which plaintiff is lawfully entitled. See Pope v. United States, 323 U.S. 1 (1944).

Where actual damages are not proved, it may be appropriate in some cases to award nominal damages to vindicate the deprivation of certain "absolute" rights. See Cummings v. Connell, 402 F.3d 936, 942 (9th Cir. 2005). Nominal damages may be appropriate under California law for the torts of trespass, see Consterisan v. Tejon Ranch Co., 255 Cal.App.2d 57, 60 (5th Dist. 1967), assault, see Liljefelt v. Blum, 33 Cal.App.721 (1st Dist. 1917) (per curiam), loss of publicity, see Ericson v. Playgirl, Inc., 73 Cal.App.3d 850, 859 (2nd Dist. 1977), as ...


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