United States District Court, N.D. California, San Jose Division
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT Re: ECF No. 15
BETH LABSON FREEMAN, District Judge.
Plaintiff J & J Sports Productions, Inc. ("Plaintiff") has moved for the entry of default judgment against defendant Marisol Lopez Pinon, owner of Martha's Hair Styling aka Belleza Latina's Salon. Plaintiff is requesting damages from Defendant's alleged unlawful interception and intentional exhibition of a boxing match at Defendant's hair salon. 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 " Manny Pacquiao and Juan Manuel Márquez, IV Welterweight Fight Program " ("Program") telecast nationwide on Saturday, December 8, 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 December 8, 2012, investigator Gary Gravelyn observed the alleged unlawful exhibition of the Program at Defendant's commercial establishment, Martha's Hair Styling, located in San Jose, California. (Decl. of Gary Gravelyn, at 1, ECF 15) Based on Gravelyn'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 his affidavit, Gravelyn states that Martha's Hair Styling has a capacity of approximately forty people. (Gravelyn Decl., at 1) Gravelyn observed one forty-inch television located on the counter opposite the entrance. ( Id. ) In the two minutes Gravelyn spent at Defendant's salon he conducted three head counts, counting approximately eleven, ten, and ten patrons, respectively, inside the establishment. ( Id., at 1-2) Gravelyn's affidavit did not expressly describe how many of such patrons were watching the Program. Gravelyn testifies that the establishment has a satellite dish, but that he did not observe a cable box. ( Id. )
It is unclear whether Defendant charged a fee to enter the establishment. Plaintiff has provided directly conflicting statements on this point. Plaintiff states: "In this instance, I would further request that the Court take notice that the instant pirate establishment obtained a cover charge from its patrons and to view the Program. Martha's Hair Styling a/k/a Belleza Latina's Salon did not require a cover charge to enter the establishment." (Pl.'s Mot. for Default J., at 11, ECF 15) Gravelyn testifies that he was not required to pay to enter the establishment. (Gravelyn Decl., at 1) The Court will take Gravelyn's affidavit as true and assume that no cover charge was required to enter the establishment. Although there are allegations that beer was consumed on the premises, there are no allegations of increased drink prices during the Program, or even that patrons paid Defendant for the drinks. ( Id. ) Plaintiff also does not allege that Defendant is a repeat offender of the alleged unlawful conduct.
Plaintiff filed suit against Defendant on December 2, 2013. ( See Compl.) Plaintiff has alleged violations of the Federal Communications Act, 47 U.S.C. § 605, Cable and Television Consumer Protection Act 47 U.S.C. § 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 18, 2014 Plaintiff filed a request for entry of default judgment. (Pl.'s Mot. for Entry of Default, at 1, ECF 11) The Court Clerk entered default against Defendant on February 21, 2014. (Entry of Default, at 1, ECF 12)
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 ...