United States District Court, N.D. California, San Jose Division
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED BY THE COURT [Re: ECF No. 28]
BETH LABSON FREEMAN, District Judge.
Plaintiff J & J Sports Productions, Inc. ("Plaintiff") sues Defendant Adriana L. Lorenzana ("Defendant") for the unlawful interception and intentional exhibition of a boxing match for which Plaintiff owned the exclusive television distribution rights. Plaintiff filed an Application for Default Judgment against Defendant, which was referred to Magistrate Judge Spero for a Report and Recommendation. Magistrate Judge Spero recommended granting Plaintiff's Application for Default Judgment, but awarding damages in an amount less than Plaintiff had requested. (Rep. & Recom., ECF 27) Plaintiff filed a Motion for De Novo Determination Re Motion for Default Judgment requesting an increase in awarded damages. (Pl.'s Mot., ECF 28) After de novo review, the Court GRANTS in part and DENIES in part Plaintiff's Motion for De Novo Determination for the reasons set forth below.
Plaintiff is a sports and entertainment programming distributor that owned the exclusive nationwide distribution rights to Manny Pacquiao v. Juan Manuel Marquez, IV Welterweight Fight Program, which was telecast on December 8, 2012. (Compl., ECF 1 ¶ 14) This program included the main fight between Manny Pacquiao and Juan Manuel Marquez as well as preliminary under-card bouts. ( Id. ) In order to legally broadcast the program, a commercial establishment was required to enter into a sublicensing agreement with Plaintiff. ( Id. ¶ 15) The license authorized the establishment to display the program publicly. ( Id. )
On the date of the telecast, investigator Nathan Tate observed the alleged unlawful exhibition of the program at Castroville Inn. (Tate Decl., ECF 12-3) In his declaration, investigator Tate reported seeing one thirty-seven to forty-two-inch television set located "towards the end of the bar." ( Id. ) He noted that a cable box "was not" visible and that the restaurant "has" a satellite dish. ( Id. ) No cover charge was required to enter the restaurant in order to watch the boxing match, nor was the purchase of food or drink required. ( Id. ) Tate reported the capacity of the restaurant to be approximately eighty people. ( Id. ) During the five minutes he was there, Tate conducted three headcounts. ( Id. ) He counted fifty people on the first headcount and fifty-four people on the second and third headcount. ( Id. )
On December 2, 2013, Plaintiff filed this action against Defendant, "the sole individual specifically identified on the California Alcoholic Beverage and Control license, " (Compl. ¶ 8), alleging violations of 47 U.S.C. §§ 605, 553, conversion, and California's Business and Professions Code § 17200, et seq. ( Id. ¶¶ 13-41) Defendant was served with the Complaint on February 10, 2014 and her answer was due on March 3, 2014. (Proof of Serv., ECF 9) Defendant did not file an answer and has not appeared. On March 4, 2014, Plaintiff filed a request for entry of default, which was served upon Defendant. (Req. to Enter Default, ECF 10 at 3) The clerk entered default on March 6, 2014. (Entry of Default, ECF 11)
The Court referred the motion to a Magistrate Judge for a Report and Recommendation on April 11, 2014. (Order of Reference, ECF 15) On May 13, 2014, Magistrate Judge Spero issued his Report and Recommendation in which he recommended granting Plaintiff's Application for Default Judgment. (Report & Recom., ECF 27 at 4) Plaintiff filed timely objections to Magistrate Judge Spero's Report and Recommendation on May 27, 2014, specifically objecting to (1) the recommended award of $2, 700 in statutory damages under 47 U.S.C. § 605, (2) the recommended denial of enhanced statutory damages, and (3) the recommended denial of conversion damages. (Pl.'s Mot., ECF 28 at 3)
III. LEGAL STANDARD
A district court judge may refer a matter to a magistrate judge to issue findings of fact and recommendations for the disposition of the matter. 28 U.S.C. § 636(b)(1)(B)-(C); Fed.R.Civ.P. 72(b)(1); Civ. L.R. 72-3. Any objections to the Report and Recommendation of a magistrate judge must be filed within fourteen days of receipt thereof and "specifically identify the portions of the findings, recommendation or report to which objection is made and the reason and authority therefor." Civ. L.R. 72-3(a); See Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).
"The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); See 28 U.S.C. 636(b)(1)(C); Civ. L.R. 72-3(a). A de novo review requires the Court to consider the matter anew, as if no decision previously had been rendered, and come to its own conclusion about those portions of the Magistrate Judge's findings and recommendations to which an objection was made. See Ness v. Comm'r, 954 F.2d 1495, 1497 (9th Cir. 1992). A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Plaintiff does not object to Magistrate Judge Spero's recommendation to grant default judgment. For that reason, the Court will accept this recommendation unless clearly erroneous or contrary to law. In exercising its discretion to enter default judgment, the Court considers seven factors, commonly known as the " Eitel factors":
(1) [T]he 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 ...