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Directv Inc., A California Corporation v. Mina Chau

November 27, 2012

DIRECTV INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
MINA CHAU, INDIVIDUALLY; DOING BUSINESS AS TORO SUSHI RESTAURANT, ALSO KNOWN AS TORO SUSHI DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion for Voluntary Dismissal (ECF No. 26) and the Amended Motion for Default Judgment (ECF No. 27) filed by Plaintiff DirecTV, Inc.

BACKGROUND

On August 16, 2011, Plaintiff DirecTV Inc. initiated this action by filing the Complaint against Defendant Mina Chau, individually and doing business as TORO Sushi Restaurant, also known as TORO Sushi. (ECF No. 1). The Complaint alleged that Plaintiff is a California corporation with proprietary rights to the National Football League games only available through Plaintiff's "NFL Sunday Ticket" service, which was broadcast on October 24, 2010 (the "Program"). Id. at 2. The Complaint alleged that Defendant is the license holder and an individual with supervisory capacity and control of the commercial establishment doing business as Toro Sushi Restaurant, also known as Toro Sushi, which is located at 6171 Mission

Gorge Road, Suite 103 in San Diego. Id. The Complaint alleged that Defendant willfully, and for the purpose of direct or indirect commercial advantage or financial gain, received and displayed the Program at Toro Sushi without obtaining valid commercial exhibition rights or authorization from Plaintiff. Id. at 4. The Complaint alleged claims for (1) violation of 47 U.S.C. § 605(a) on the grounds that Defendant engaged in the unauthorized publication or use of the Program; (2) violation of 18 U.S.C. § 2511 on the grounds that Defendant intentionally intercepted, disclosed and knowingly used the Program; and (3) conversion on the grounds that Defendant intentionally and unlawfully converted Plaintiff's property for its own commercial use and benefit, thereby depriving Defendant of its proprietary interests. Id. at 5-7.

On September 27, 2011, Kathryn A. Martin of Higgs, Fletcher & Mack LLP filed an acknowledgment of service and a waiver of service of the Complaint on behalf of Defendant. (ECF Nos. 4, 5).

On November 23, 2011, Martin and Higgs, Fletcher & Mack LLP filed a motion to withdraw as counsel of record for Defendant. (ECF No. 9). Plaintiff filed no opposition. On January 3, 2012, the Court granted the motion to withdraw. (ECF No. 12).

July 11, 2012, Plaintiff filed a request for entry of clerk default. (ECF No. 17). In support of the request for entry of clerk default, Plaintiff submitted the affidavit of Plaintiff's counsel Wayne D. Lonstein, who stated that Defendant was duly served and did not respond to the Complaint in the time allowed by law. (ECF No. 17-1). On July 18, 2012, the Clerk entered default as to Defendant. (ECF No. 18).

On August 28, 2012, Plaintiff filed a Motion for Default Judgment, in which Plaintiff requested statutory damages as to claim one of the Complaint, but failed to address claims two or three. (ECF No. 21). Defendant did not file any response. On October 9, 2012, the Court denied the Motion for Default Judgment on the grounds that "Plaintiff has not shown cause for the entry of partial default judgment pursuant to Rule 54(b)," and instructed Plaintiff to file any further request for default judgment within thirty days. (ECF No. 25).

On October 19, 2012, Plaintiff filed the Motion for Voluntary Dismissal, requesting that "Count II, for violation of 18 U.S.C. § 2511, and Count III for civil conversion of Plaintiff's Complaint be dismissed with prejudice and without costs to either party ...." (ECF No. 26). On October 19, 2012, Plaintiff filed the Amended Motion for Default Judgment, which states: "Although the Complaint filed in this matter set forth three separate counts, Plaintiff seeks Default Judgment pursuant to Count I of the Complaint. Plaintiff is simultaneously herewith filing a motion to dismiss Counts II and III from the Complaint." (ECF No. 27 at 2). As to claim one, Plaintiff requests statutory damages of $10,000.00 for violation of 47 U.S.C. § 605(a), statutory damages of $100,000.00 for willful violation of 47 U.S.C. § 605(a), and $3,522.50 for costs and attorney fees, for a total award of $113,522.50. Id.

Plaintiff submits the affidavit of its attorney, Wayne D. Lonstein, who states: ... Plaintiff has been unable to conduct discovery in this matter as Defendant has failed to appear. The Complaint clearly alleges that the Defendant pirated the subject event in violation of 47 U.S.C. §605. Further, based upon Defendant's default, the facts alleged in the complaint are deemed admitted. Therefore, Plaintiff seeks damages under 47 U.S.C.§605 as defendant, through her default, has admitted that, without authorization from Plaintiff, she illegally intercepted the scrambled transmissions of the Program and knowingly and wilfully offered it to patrons of her commercial establishment for private financial gain or commercial advantage. ...

Plaintiff's litigation expenses as associated with the formation, pleading and filing of the above captioned matter are as outlined below: a. Filing Fees -$350.00; b. Service of Process - $0; c. Attorney Fees - $3172.50 ... Total Litigation Expenses ($3522.50)

Attorney fees [billed] at $250.00 per hour for attorney time spent and $75.00 for paralegal time spent.... (ECF No. 27-2).

Plaintiff submits the affidavit of Vice President of Revenue and Margin Assurance for DirecTV, ...


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