The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING MOTION FOR LEAVE TO FILE APPLICATION FOR DEFAULT JUDGMENT; [Doc. No. 23]
GRANTING PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT [Doc. No. 23-3]
Currently before the Court is Plaintiff J&J Sports Production, Inc.'s ("J&J") Motion for Leave to File Application for Default Judgment against Defendant David Ramos [Doc. No. 23], and Plaintiff's Application for Default Judgment [Doc. No. 23-3]. For the reasons set forth below, the Court GRANTS Plaintiff leave to file the motion, and GRANTS Plaintiff's Application for Default Judgment, awarding total damages in the amount of $9,800.
This case involves the prohibited broadcast of The Event: The Manny Pacquiano v. Joshua Clottey, WBO Welterweight Championship Fight Program ("Program") on March 13, 2012 at Defendant's establishment, Dos Patrons Mariscos Bar & Grill ("Dos Patrons"), located at 3065 Clairemont Drive, San Diego, California, 92117. Plaintiff possesses the exclusive nationwide commercial distribution rights to the Program. Plaintiff alleges that Defendant willfully and knowingly intercepted and published the Program without Plaintiff's consent. Plaintiff's allegations are supported by the affidavit of investigator Rudy M. Gubach, who observed the unlawful exhibition of the Program at Defendant's commercial establishment. Pursuant to Mr. Gubach's affidavit, between 42 and 45 patrons were in Defendant's establishment during the unlawful broadcast. Plaintiff charged a license fee of $1,800 for establishments hosting between 1 and 100 patrons for the Program. [Doc. 11-4, Ex. 2.] Now, Plaintiff seeks Default Judgment pursuant to 47 U.S.C. § 605. Plaintiff alleges Defendant's violations were willfully committed for financial gain and therefore seeks enhanced statutory damages of $110,000 for violations under section 605, and $1,800 for a state law claim of conversion.
A. Procedural Background Applicable to Plaintiff's Application For Leave to File Application for Default Judgment
On March 10, 2011, Plaintiff filed suit against Defendant David Ramos and others*fn1 for the above-described acts. [Doc. No. 1.] Nearly three months later, J&J served Defendant Ramos. [Doc. No. 5.] On July 14, 2011, the Clerk of Court entered default as to all Defendants. [Doc. No.
9.] Two months later, Defendant Ramos filed an ex parte motion to set aside the entry of default. On October 5, the Court gave J&J until October 19, 2011 to file a response to Defendant's motion. [Doc. No. 16.] J&J failed to respond. Thus, on November 28, 2011, the Court ordered the Clerk of Court to set aside the previous entry of judgment against Defendant. [Doc. No. 17.]
Next, Defendant failed to file a responsive pleading within 14 days of the November 28 Order, giving Plaintiff the opportunity to again seek a default judgment. Yet, the docket reflects no activity for several months.
Finally, on March 7, 2012, the Court set a dismissal hearing on April 23 for failure to move for default judgment. [Doc. No. 19.] In response, five days before the hearing, Plaintiff filed a request for Entry of Clerk's Default. [Doc. No. 20.] The Clerk of Court entered default on April 19, 2012. [Doc. No. 21.] Accordingly, the Court vacated the April 23 dismissal hearing.
Thereafter, the docket reflects no activity for nearly four months. Then, on August 10, 2012, Plaintiff filed the pending motion for leave to file an application for default judgment. [Doc. No.
23.] The Court took the matter under submission on September 25, 2012. [Doc. No. 25.] DISCUSSION
Once the Clerk of Court enters default, a plaintiff must move the Court for entry of a default judgment within thirty days. FED. R. CIV. P. 55(b)(2); CIV. L.R. 55.1. Here, the Clerk of Court entered default on April 19, 2012, and Plaintiff took no action within the time permitted by Civil Local Rule 55.1. The Court may extend Plaintiff's time to file a motion for entry of default judgment if it failed to timely act due to "excusable neglect." FED. R. CIV. P. 6(b)(1)(B). To determine whether Plaintiff's conduct constitutes excusable neglect, the Court considers four factors identified by the Supreme Court: (1) danger of prejudice to the non-movant; (2) the reason for the delay, including whether it was within the reasonable control of the movant; (3) the length ...