United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, District Judge.
Pending before the Court is plaintiff's renewed motion for default judgment against defendant Humberto Leon Sanchez, Jr., individually and d/b/a Discoteca Sanchez, located at 1 South Wilson Way, Stockton, California 95205 ("the establishment"). The Court has determined that this matter shall be submitted on the papers and accordingly the date for hearing shall be vacated. E.D. Local Rule 230. Upon review of the motion and the supporting documents, and good cause appearing, THE COURT FINDS AS FOLLOWS:
FACTUAL AND PROCEDURAL BACKGROUND
The procedural history of this case differs from that typically seen by this Court on similar matters. On September 15, 2011, an international distributor of sports and entertainment programming filed a complaint against defendant, identified as "an owner, and/or operator, and/or licensee, and/or permittee, and/or person in charge, and/or an individual with dominion, control, oversight and management of the establishment, " alleging that the latter unlawfully intercepted and exhibited a live broadcast of a prizefight program entitled "200 Celebrate and Dominate': Shane Mosley v. Sergio Mora" ("the Program") in the establishment for commercial advantage without obtaining a sublicense from plaintiff for its use, in violation of the Communications Act, 47 U.S.C. § 605, the Cable Communications Policy Act, 47 U.S.C. § 553, and state law. The First Amended Complaint, the operative pleading in this case, alleges defendant exhibited the Program on September 18, 2010. ECF No. 6.
Plaintiff brings the following claims: (1) a violation of 47 U.S.C. § 605 (Unauthorized Publication or Use of Communications) alleging that defendant knowingly intercepted, received, and exhibited the Program for purposes of direct or indirect commercial advantage or private financial gain; (2) a violation of 47 U.S.C. § 553 (Unauthorized Reception of Cable Services) based upon the same allegations; (3) a claim for conversion alleging that defendant tortiously obtained possession of the Program and wrongfully converted it for his own benefit; and (4) a violation of the California Business & Professions Code § 17200, et. seq.
In the amended pleading, plaintiff seeks $110, 000 in statutory damages as well as attorneys' fees and costs for Count I; $60, 000 in statutory damages, as well as attorneys' fees and costs for Count II; compensatory, exemplary, and punitive damages, as well as attorneys' fees and costs for Count III; and restitution, declaratory relief, injunctive relief, and attorneys' fees for Count IV.
The summons and complaint were served on defendant by personal service on February 24, 2012. ECF No. 17; Fed.R.Civ.P. 4(e)(2); Pacific Atlantic Trading Co. v. M/V Main Express , 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendant, appearing through counsel, filed an Answer on April 4, 2012. ECF No. 18. Defendant then attempted to settle this matter several times, but his settlement offer was ultimately rejected by plaintiff. See David S. White Decl. ¶¶ 4-6, ECF No. 25 at 6-7. Due to plaintiff's rejection of the settlement offer, counsel for defendant filed a motion to withdraw due to defendant's inability to continue to pay attorneys' fees. See Mot. to Withdraw as Counsel at 4, ECF No. 25. This motion was granted by the Honorable Garland E. Burrell, Jr., on October 1, 2012, and this matter was referred to the then-assigned magistrate judge pursuant to Local Rule 302(c)(21). ECF No. 26.
Since proceeding in pro per, defendant has failed to participate in this case, including failing to appear at a status conference before the then-assigned magistrate judge, see ECF No. 33; failing to follow the magistrate judge's order to "provide to plaintiff's counsel a phone number at which defendant can be reached so that settlement discussions may be facilitated, " see ECF No. 34; failing to file a Pretrial Conference Statement, see ECF No. 39; and failing to respond to Judge Burrell's Order to Show Cause why sanctions should not be imposed, ECF Nos. 39-40. On December 5, 2013, Judge Burrell sanctioned defendant for these failures, ordering that defendant's Answer be stricken and default be entered by the Clerk of the Court. ECF No. 40. Default was entered on the same day.
On April 24, 2014, plaintiff filed an application for default judgment. ECF No. 43. That application was denied without prejudice on June 30, 2014 due to plaintiff's failure to provide supporting documentation consistent with the allegations made in the first amended complaint. See ECF No. 49.
The instant renewed motion for default judgment and supporting papers were served by mail on defendant. ECF No. 50-2 at 3. Defendant did not file an opposition to the renewed motion for entry of default judgment. Plaintiff seeks an entry of default judgment in the amount of $111, 600 ($10, 000 for statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); $100, 000 for enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii); and $1, 600 for conversion).
Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed.R.Civ.P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans , 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs , 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed.R.Civ.P. 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe , 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court may consider the following factors:
(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 ...