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J & J Sports Productions, Inc. v. Luis Alberto Jimenez

October 1, 2012

J & J SPORTS PRODUCTIONS, INC. PLAINTIFF,
v.
LUIS ALBERTO JIMENEZ, ET AL., DEFENDANTS.



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

ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

On April 27, 2012, the Clerk of the Court entered default against Defendants Phuc Dinh Le, 18 individually and doing business as Cali Coffee a/k/a Cali Love Coffee & Restaurant, and Lebros 19 Corporation, an unknown business entity doing business as Cali Coffee a/k/a Cali Love Coffee & 20 Restaurant (collectively "Defendants"), after Defendants failed to appear or otherwise respond to 21 the Summons and Complaint within the time prescribed by the Federal Rules of Civil Procedure.*fn1

ECF No. 27.

Before the Court is Plaintiff J & J Sports Productions, Inc.'s ("Plaintiff's") motion 23 for default judgment. ECF No. 28. Defendants, not having appeared in this action to date, have 24 not filed an opposition. Having reviewed Plaintiff's motion, the Court finds this matter appropriate 25 for resolution without oral argument pursuant to Civil Local Rule 7-1(b). Accordingly, the hearing 26 27 and case management conference set for October 4, 2012 are VACATED. For the reasons 2 discussed below, the Court GRANTS Plaintiff's application for default judgment.

5 commercial distribution rights to broadcast the closed-circuit program "Tactical Warfare": Manny

I. DISCUSSION

Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns Pacquiao v. Antonio Margarito, WBC Light Middleweight Championship Fight ("the Program"), 7 originally broadcast nationwide on Saturday, November 13, 2010. See Compl. ¶ 9. Plaintiff 8 alleges that the Program was unlawfully intercepted and exhibited by Defendants at Defendants' 9 commercial establishment located in San Jose, California. Id. at ¶ 12. On November 9, 2011, 10 U.S.C. §605 and 47 U.S.C. §553, as well as violations of California law against conversion and 12 California Business and Professions Code §17200. In the pending motion for default judgment, 13 however, Plaintiff only seeks damages under §605 and for conversion. 14 §605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages for willful violation of 47 U.S.C. 16 Plaintiff filed this action for violation of the Federal Communications Act of 1934, as amended, 47 11 Plaintiff requests $10,000.00 in statutory damages for violation of 47 U.S.C. §605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $2,200.00, representing that 17 this is the amount Defendants would have been required to pay had Defendants licensed the 18 Judgment by the Court ("Pl. Mem.") at 20. Once the Clerk of Court enters default, all well-20 pleaded allegations regarding liability are taken as true except as to the amount of damages. See 21

Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Satisfied of its subject matter 22 jurisdiction (federal statutes at issue) and personal jurisdiction (Defendants reside and do business 23 in this district), the Court shall proceed to review Plaintiff's motion for default judgment. 24 27 than $1,000 and not more than $10,000 for each violation of §605(a), as the Court considers just. 28

Program from Plaintiff. See Mem. of Points and Authorities in Support of Pl.'s App. for Default 19

A.Damages under § 605

1.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

"A traditional method of determining statutory damages is to estimate either the loss incurred by the plaintiff or the profits made by the defendants." Joe Hand Promotions v. Kim Thuy Ho, No. C-2 09-01435 RMW (N.D. Cal. Sept. 18, 2009) (citing cases). 3 4 cost. Plaintiff has, however, represents that damages for conversion should be $2,200.00, which 5 Plaintiff has not submitted evidence as to what a properly purchased license would have Plaintiff represents is "the amount Defendant[s] would have been required to pay had he ordered 6 the Program from Plaintiff." Pl. Mem. at 20. This unsworn statement in Plaintiff's briefing is not 7 evidence. See United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995). Alternatively, as to 8 potential profits of Defendants, Plaintiff submits evidence that three separate head counts, at 9 various times, revealed that the total number of patrons ...


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