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J & J Sports Productions, Inc. v. Behari

United States District Court, Ninth Circuit

June 28, 2013

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
RAVINESH TONY BEHARI, individually and d/b/a KNOCKOUT SPORTS BAR, Defendant.

FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

This matter came before the court on January 18, 2013, for hearing of plaintiff J & J Sports Production, Inc.'s ("plaintiff") motion for default judgment against defendant Ravinesh Tony Behari ("defendant"), individually and doing business as Knockout Sports Bar. (Doc. No. 15.) Brian K. Wanerman, Esq. appeared on behalf of plaintiff. No appearance was made by or on behalf of the defendant.

Oral argument was heard and the motion was taken under submission. Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that the motion for default judgment be granted.

PROCEDURAL BACKGROUND

Plaintiff commenced this action on May 4, 2012, by filing a complaint and paying the required filing fee. (Doc. No. 1.) Plaintiff's complaint alleges that it was granted the exclusive nationwide commercial distribution (closed-circuit) rights to the "Manny Pacquiao v. Shane Mosley, WBO Welterweight Championship Fight Program, " ("program") which was telecast nationwide on Saturday, May 7, 2011. (Compl. (Doc. No. 1) at 4.) Defendant Behari is the owner, operator, licensee, permittee, or person in charge of the commercial establishment doing business as the Knockout Sports Bar in Marysville, California. (Id. at 3.) Plaintiff's complaint alleges that the defendant unlawfully intercepted and broadcast the program without authorization to do so. (Id.) The complaint alleges violations of 47 U.S.C. § 605 and 47 U.S.C. § 553, conversion, and violation of California Business & Professions Code § 17200, et seq.

The record reflects that service of process was effected on defendant Behari on August 21, 2012, by substituted service at the defendant's residence. (Doc. No. 8.) Despite being served with process, defendant failed to appear in this action and, pursuant to plaintiff's request, (Doc. No. 12), the Clerk of the Court entered defendant's default on November 9, 2012. (Doc. No. 13.) On November 29, 2012, plaintiff filed the motion for default judgment now pending before the court and noticed it to be heard before the undersigned pursuant to Local Rule 302(c) (19). (Doc. No. 15.)

The matter came before the undersigned on January 18, 2013. (Doc. No. 16.) Despite being served with all papers filed in connection with the motion, there was no opposition filed nor appearance made by or on behalf of the defendant at the January 18, 2013 hearing.[1]

LEGAL STANDARDS

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods. , 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States , 323 U.S. 1 (1944); Geddes v. United Fin. Group , 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh , 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal , 826 F.2d 915, 917-18 (9th Cir. 1987).

Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee , 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee , 722 F.2d at 1323-24; see also James v. Frame , 6 F.3d 307, 310-11 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion. Draper v. Coombs , 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe , 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool , 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel , 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ¶ 55-05[2], ...


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