United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT RE: ECF No. 20
BETH LABSON FREEMAN, District Judge.
Plaintiff J & J Sports Productions, Inc. ("Plaintiff") has moved for the entry of default judgment against defendant Raul Gonzalez Campos, owner of Taquería Jalisco restaurant. Plaintiff is requesting damages from Defendant's alleged unlawful interception and broadcast of a boxing match at Defendant's restaurant. For the following reasons, the motion for default judgment is GRANTED.
Plaintiff is a commercial distributor and licensor of sporting events. (Compl. ¶ 16, ECF 1) By contract, J & J secured the domestic commercial exhibition rights to broadcast the " Julio Cesar Chavez v. Sergio Martinez, WBC Middleweight Championship Fight Program " ("Program") telecast nationwide on Saturday, September 15, 2012. ( Id. ¶ 14) The interstate transmission of the Program was made available only to J & J's customers. ( Id. ¶ 15) In order to lawfully broadcast the Program, commercial entities were required to enter into a sublicensing agreement with J & J and pay the associated licensing fees. ( Id. )
On September 15, 2012, investigator Yolanda Poblete observed the alleged unlawful exhibition of the Program at Defendant's commercial establishment, Taquería Jalisco, located in Salinas, California. (Decl. of Yolanda Poblete, at 1, ECF 20) Based on Poblete's observations, J & J alleges that Defendant intercepted the Program unlawfully, and intentionally exhibited it for the purpose of direct and/or indirect commercial advantage and/or private financial gain. (Compl. ¶ 18)
In her affidavit, Poblete states that Taquería Jalisco has a capacity of approximately forty-five people. (Poblete Decl., at 2) Poblete observed one thirty-two to thirty-six inch television located on the upper right side of the interior wall of the restaurant. ( Id., at 1) In the fourteen minutes Poblete spent at Taquería Jalisco she conducted three head counts, counting approximately twenty-four, twenty-seven, and twenty-nine patrons, respectively, inside the establishment. ( Id., at 2) Poblete's affidavit did not expressly describe how many of such patrons were watching the Program. Poblete does not provide any testimony indicating whether the interception was via satellite or cable box. ( See Decl. of Yolanda Poblete) Poblete testifies that she was not required to pay to enter the establishment. (Poblete Decl., at 1) There are no allegations of increased food or drink prices during the Program. Plaintiff also does not allege that Taquería Jalisco is a repeat offender of the alleged unlawful conduct.
Plaintiff filed suit against Defendant on September 13, 2013. ( See Compl.) Plaintiff has alleged violations of the Federal Communications Act, 47 U.S.C. § 605, Cable and Television Consumer Protection Act § 553, California Civil Code § 3336, and California Business and Professions Code § 17200, et. seq.  Defendant has failed to appear or otherwise respond to the Summons and Complaint within the time prescribed by the Federal Rules of Civil Procedure. On February 5, 2014 Plaintiff filed a request for entry of default judgment. (Pl.'s Mot. for Entry of Default, at 1, ECF 15) The Court Clerk entered default against Defendant on February 6, 2014. (Entry of Default, at 1, ECF 16)
II. LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 55(b), the Court may enter default judgment against a defendant who has failed to plead or otherwise defend an action. "The district court's decision whether to enter a default judgment is a discretionary one." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
The Ninth Circuit has provided seven factors for consideration by the district court in exercising its discretion to enter default judgment. These factors, known as the " Eitel factors, " 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 dispute concerning material facts; (6) whether default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When assessing these factors, and after entry of default, all factual allegations in the complaint are taken as true, except those with regard to damages. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
A. Eitel Factors
Six of the seven Eitel factors weigh in favor of default judgment. In respect to the first factor of prejudice, denying Plaintiff's request for default judgment would be prejudicial because Plaintiff would be left without a remedy as a result of Defendant's refusal to litigate this action. Considering the merits of Plaintiff's substantive claims and the sufficiency of the complaint together (factors two and three), Plaintiff's substantive claims appear meritorious, and its complaint is sufficiently pled. Plaintiff has stated the applicable laws pursuant to which the Court may provide relief and alleged that Defendant violated 47 U.S.C. §§ 605 and 553 and California Civil Code § 3336. The facts alleged concerning Defendant's activities appear to support the allegation that Defendant has violated one or more sections of the cited statutes.
As to the fifth and sixth Eitel factors, Defendant has failed to respond to this action despite Plaintiff's satisfaction of all notice requirements. (Summons Issued as to Raul Gonzalez Campos, at 1, Sept. 13, 2013, ECF 3; Proof of Service Summons and Compl., at 1, ECF 12) As such, there is no dispute of material fact because Defendant has not responded (factor five). There is also nothing in the record to indicate that Defendant's default is a result of excusable neglect (factor six). Finally, although federal policy favors decisions on the merits, Rule 55(b)(2) permits entry of default judgment in situations such as this where defendants refuse to litigate. J & J Sports Productions, Inc. v. Deleon, No. 5:13-CV-02030, 2014 WL 121711, ...