United States District Court, E.D. California
RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT BE PARTIALLY GRANTED ECF NO. 19 OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS
STANLEY A. BOONE, Magistrate Judge.
On February 25, 2015, Plaintiff J & J Sports Productions, Inc. ("Plaintiff") filed a motion for default judgment. (ECF No. 19.) The motion for default judgment was referred to the undersigned magistrate judge for findings and recommendations. Local Rule 302.
The hearing on Plaintiff's motion took place on April 1, 2015. Thomas P. Riley appeared on behalf of Plaintiff. No one appeared on behalf of Defendant. For the reasons set forth below, the Court recommends that Plaintiff's motion for default judgment be partially granted.
Plaintiff filed the complaint in this matter on August 28, 2014. (ECF No. 1.) Plaintiff's complaint alleges that Defendant Alvaro Lupian Lua ("Defendant') is the owner/operator of the commercial establishment "El Progresso 4 Bar" operating at 40594 Lincoln Road, Suite B in Cutler, California. (Compl. ¶ 7.) Plaintiff further alleges that Plaintiff possesses the exclusive nationwide commercial distribution rights to "The One" Floyd Mayweather, Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight Program, which was telecast on September 14, 2013 (hereinafter "the Program"). (Compl. ¶ 14.) Plaintiff alleges that Defendant broadcasted the Program at his commercial establishment without Plaintiff's permission. (Compl. ¶ 17.) Plaintiff's complaint raises claims under 47 U.S.C. § 605, 47 U.S.C. § 553, for conversion under California law, and for violation of California Business and Professions Code § 17200.
Defendant has not filed a response to Plaintiff's complaint or otherwise appeared in this action. On January 30, 2015, Plaintiff sought and obtained entry of default against Defendant. (ECF Nos. 17, 18.) Plaintiff filed the present motion for default judgment on February 25, 2015. (ECF No. 19.)
Plaintiff submitted a declaration from private investigator Alan Meindersee in support of the motion for default judgment. Mr. Meindersee stated that he visited the El Progresso 4 Bar on September 14, 2013 at approximately 9:42 p.m. Mr. Meindersee saw a color television airing a boxing match with a "Showtime PPV" trademark logo in the corner of the screen. Mr. Meindersee noted that it was late in Round 2 of the fight between Floyd Mayweather Jr. and Canelo Alvarez. Mr. Meindersee watched the fight through the first minute of Round 3. Mr. Meindersee noted that the television was on top of a small shelf in the northwest corner of the room and the television was approximately 36 inches to 42 inches.
Mr. Meindersee described El Progresso 4 Bar as "a medium sized Mexican bar in poor condition, " "[s]ituated within the rural unincorporated community of Cutler" in Tulare County. Mr. Meindersee stated that "its'[sic] clientele appeared to primarily consist of Spanish speaking laborers." Mr. Meindersee further noted that there did not appear to be a cover charge for admission. Mr. Meindersee counted over 80 patrons in the business establishment on three separate occasions, with the capacity of the bar to be approximately 70-80 patrons. Plaintiff left the premises at approximately 9:47 p.m.
Plaintiff seeks $6, 600 in damages under 47 U.S.C. § 605(e)(3)(C)(i)(II) and $25, 000 in damages under 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff also seeks $2, 200.00 in damages on its conversion claim as well as additional attorneys' fees and costs to be determined by motion at a later date.
LEGAL STANDARDS FOR DEFAULT JUDGMENT
Entry of default judgment is governed by Federal Rule of Civil Procedure 55(b), which states, in pertinent part:
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of ...