United States District Court, N.D. California, Eureka Division
REPORT & RECOMMENDATION Re: Dkt. No. 26
NANDOR J. VADAS, Magistrate Judge.
Plaintiff's Motion for Default Judgment (Doc. 26) was referred to the undersigned on October 6, 2014. (Doc. 27) Plaintiff J & J Sports Productions, Inc. brings this action under the Federal Communications Act and the Cable & Television Consumer Protection and Competition Act, and moves for entry of Default Judgment against Defendants Joel Coria ("Coria"), individually and d/b/a Los Pinos a/k/a Los Pinos Taqueria and Vega Mexican Food, Inc., an unknown business entity d/b/a Los Pinos, a/k/a Los Pinos Taqueria ("the Restaurant"). Plaintiff seeks default judgment, an award of statutory and enhanced damages under 47 U.S.C. §§ 605 and 553, as well as damages for conversion under state law. For the reasons that follow, the court RECOMMENDS the motion be GRANTED in part.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff is a distributor of sports and entertaining programming. Pl.'s Br. (Doc. 26-1) at 7. Plaintiff purchased the right to broadcast a November 12, 2011 boxing match, Manny Pacquiao v. Juan Manuel Marquez III WBO Welterweight Championship Fight Program ("Broadcast"), including undercard bouts, televised replay, and color commentary. Id. Pursuant to the purchase contract, Plaintiff entered into sublicensing agreements with commercial entities to permit public exhibition of the Broadcast. Id. On November 12, 2011, investigator David Sims observed the unlawful exhibition of the Broadcast at the Restaurant, located at 1955 Monument Blvd., Ste. 4E, Concord, California 94520. Id . See also, Affidavit of Sims (Doc. 26-3) at 3.
Plaintiff filed its Complaint against Defendants on November 9, 2012. (Doc. 1). Defendants were served on January 10, 2013. (Docs. 12 & 13). Defendants failed to file a responsive pleading or otherwise appear and the Clerk of Court entered a default pursuant to Federal Rule of Civil Procedure 55(a) on September 25, 2014. (Doc. 17). Nonetheless, Plaintiff and Defendants subsequently filed a Stipulation of Dismissal, which the district court granted. (Docs. 20 & 21). At Plaintiff's request, the Court subsequently reopened the case due to Defendants' alleged failure to comply with the parties' settlement. (Doc. 19).
Plaintiff now moves for default judgment seeking an award of statutory and enhanced damages in the amount of $14, 400, and $2, 200 in damages for conversion. Pl.'s Br. (Doc. 26-1) at 15 & 21. Plaintiff served Defendants with the Motion for Default. See Proof of Service (Doc. 26) at 4. Defendants have not appeared or responded to Plaintiff's Motion for Default Judgment, and the deadline for opposing the motion has passed. See Civ. L.R. 7-3(a). Further, on December 16, 2014, the undersigned held a hearing on the Motion for Default at which Defendants failed to appear. See Doc. 31.
I. Jurisdiction and Service of Process
A court considering whether to enter a default judgment has "an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). Here, the Court has subject matter jurisdiction because Plaintiff's claims arise under federal statutes (47 U.S.C. §§ 553, 605), and personal jurisdiction because it is alleged that Defendants reside and do business in this District. The Court, moreover, has supplemental jurisdiction over Plaintiff's state tort claim under 28 U.S.C. § 1367(a).
A court is also required to "assess the adequacy of the service of process on the party against whom default is requested." Penpower Tech. Ltd. v. S.P.C. Tech., 627 F.Supp.2d 1083, 1088 (N.D. Cal. 2008) (internal quotation marks omitted). Federal Rule of Civil Procedure 4(e) provides that service in accordance with California law is proper. California authorizes substitute service of process in lieu of personal delivery. See Cal. Code Civ. Proc. § 415.20. Substituted service is allowed when the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served. Cal. Code Civ. Proc. § 415.20(b). "Ordinarily... two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made." Espindola v. Nunez, 199 Cal.App.3d 1389, 1392 (Cal.Ct.App. 1988) (internal quotation marks omitted). To satisfy substituted service, the plaintiff must: 1) leave a copy of the summons and complaint at the defendant's usual place of business in the presence of a person apparently in charge of the business who is at least 18 years of age; 2) inform the person who receives the service of the documents' content; and 3) send the defendant a copy of the documents via first-class mail at the place where the documents were left. Cal. Code Civ. Proc. § 415.20(b). Service of a summons in this manner is deemed complete on the 10th day after the mailing. Id.
Here, Plaintiff's process server unsuccessfully attempted to personally serve Defendants at the Restaurant on at least four separate occasions. See Summons Docs. 12 & 13. On the last attempt, the process server left a copy of the summons and complaint at the Restaurant with Jose Hernandez, a person purportedly in charge, informed him of the contents, and instructed him to deliver the documents to Defendants. Id. Plaintiff's process server subsequently mailed Defendants a copy of the summons and complaint via first-class mail to the Restaurant's address. Id. Because Plaintiff satisfied the requirements under California Code of Civil Procedure § 415.20(b), the Court finds that service of process was proper.
II. Plaintiff is Entitled to Default Judgment
After entry of default, a court may grant default judgment on the merits of the case. See Fed.R.Civ.P. 55. Upon default, all factual allegations in the complaint are taken as true, except those relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) ...