G & G Closed Circuit Events, LLC v. Brews & Brats, Inc

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 G & G CLOSED CIRCUIT EVENTS, LLC, Case No. 22-cv-02714-SI 8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. DEFAULT JUDGMENT 10 OMNI GROUP FINANCIAL, INC., et al., Re: Dkt. No. 22 11 Defendants. [12] 13 On January 6, 2023, the Court held a regularly-noticed hearing on plaintiff's motion for 14 default judgment. Thomas C. Riley appeared for the plaintiff. No one appeared on behalf of 15 defendants. For the reasons set forth below, the Court GRANTS plaintiff's motion for default 16 judgment. [17] 18 BACKGROUND 19 Plaintiff, the exclusive licensor of rights to exhibit certain closed circuit and pay-per-view 20 sports programming, sued defendants Brews and Brats Inc. d/b/a Brews and Brats; Omni Group 21 Financial, Inc. d/b/a Brews and Brats; Filomeno Medina, individually and d/b/a Brews and Brats; 22 and Veronica Romero, individually and d/b/a Brews and Brats; and Julio Romero, individually and 23 d/b/a Brews and Brats. Dkt. No. 1, Compl. ¶¶ 6–13. Plaintiff has since voluntarily dismissed the 24 Complaint against Filomeno Medina.1 Dkt. No. 23. The complaint alleges that defendants showed 25 a boxing match, referred to as the Program, in their commercial establishment, Brews and Brats, [26] 1 After plaintiff moved to dismiss defendant Filomeno Medina d/b/a Brews and Brats, the [27] defendant Brews & Brats Inc. d/b/a Brews and Brats was mistakenly removed from the docket. See 1 without a license. Compl. ¶¶ 14–24. Plaintiff owned exclusive nationwide commercial distribution 2 rights to the Program. Id. ¶ 26. The complaint alleges that each defendant is liable under the Federal 3 Communications Act, 47 U.S.C. §§ 553 and 605, et seq., for receiving, intercepting, and assisting 4 in the receipt or interception of licensed programming, and alleges the common law tort of 5 conversion and violation of California Business and Professions Code §§ 17200, et seq. Id. ¶¶ 25– 6 57. 7 Plaintiff's hired private investigator filed an affidavit stating he was present in defendants’ 8 establishment on the evening of the fight, May 8, 2021, and saw the program being broadcasted on 9 three televisions. See Docket No. 22-2, Gary Gravelyn Affidavit. Per the affidavit, the 10 establishment had a capacity of 40 people and there were 29–32 people in the building, with 11 approximately 15 guests sitting outside. Id. 12 On May 5, 2022, plaintiff filed the complaint against defendants. Dkt. No. 1. Plaintiff 13 served defendants in May 2022, except for Omni Group Financial, which plaintiff served in June 14 2022. Dkt. Nos. 13–19. On July 15 the Clerk entered default against all defendants. Dkt. Nos. 19– 15 20. Plaintiff moved for default judgment against all remaining defendants on November 23, 2022. 16 Dkt. No. 22. This Court heard the matter on January 6, 2023 and requested further information as 17 to whether Omni Financial is in bankruptcy. Dkt. No. 25. Plaintiff provided a status report 18 confirming that plaintiff has found no evidence Omni Financial is in bankruptcy. Dkt. No. 26. 19 Plaintiff seeks $3,600 in statutory damages for the violation of 47 U.S.C. 20 § 605(e)(3)(C)(i)(II), an additional $18,000 in “enhanced” statutory damages under [21] 47 U.S.C. § 605 (e)(3)(C)(ii), and $1,200 in damages for conversion. Dkt. No. 22 at 3. [22] 23 LEGAL STANDARD 24 After entry of default, a court may, in its discretion, enter default judgment. See Fed. R. Civ. 25 P. 55 ; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising its discretion, the Court 26 may consider: 27 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive default was due to excusable neglect, and (7) the strong policy underlying the Federal 1 Rules of Civil Procedure favoring decisions on the merits. [2] Eitel v. McCool, 782 F.2d 1470 , 1471–72 (9th Cir. 1986). Well-pled allegations in the complaint [3] regarding liability are taken as true, except to establish the amount of damages. Fair Hous. of Marin [4] v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). [6] DISCUSSION [7] I. Liability [8] The Court finds that the Eitel factors support entry of default judgment. See Eitel v. McCool, [9] 782 F.2d at 1471–72. G&G will be prejudiced if judgment is not entered because it will be denied [10] the right to adjudicate its claims due to the defendants’ failure to appear. G&G has adequately pled [11] a violation of 47 U.S.C. § 605 . The damages sought are statutory and up to the Court’s discretion, [12] so default judgment is appropriate. See G & G Closed Cir. Events, LLC v. Zapata, No. 18-CV13 01103 NC, 2019 WL 3363793 , at *2 (N.D. Cal. Apr. 30, 2019), report and recommendation adopted [14] as modified, No. 5:18-CV-01103-EJD, 2019 WL 3891219 (N.D. Cal. Aug. 19, 2019). Defendants [15] have not responded and there is no indication in the record that the material facts are disputed. Nor [16] is there any indication that defendants’ failure to respond was due to excusable neglect. Although [17] there is a strong policy favoring decision on the merits, it is outweighed here by the other factors [18] and the fact that decision on the merits is not possible where defendants have failed to appear. [19] Default judgment is therefore appropriate. [21] II. Damages [22] The Federal Communications Act, 47 U.S.C. § 605 et seq., prohibits commercial [23] establishments from intercepting and broadcasting to its patrons satellite cable programming. The [24] Act allows an aggrieved party to bring a civil action in federal district court and permits that party [25] to elect an award of either statutory or actual damages. See 47 U.S.C. § 605 (e)(3)(C)(i). The statute [26] allows the Court to award between $1,000 and $10,000 in statutory damages for each violation of [27] section 605 as it considers just. Id. at § 605(e)(3)(C)(i)(II). The Court may increase its award by 1 not more than $100,000 when the violation has been “committed willfully and for purposes of direct 2 or indirect commercial advantage or private financial gain.” 47 U.S.C. § 605 (e)(3)(C)(ii). 3 Plaintiff's application for default judgment contends that defendant's violation of 47 U.S.C. §§ 605 4 et seq. was willful. [5] 6 A. Statutory Damages Under 47 U.S.C. § 605 7 A party may recover between $1,000 and $10,000 for each violation of 47 U.S.C. § 605 (a) 8 as the Court considers just. 47 U.S.C. § 605 (e)(3)(C)(i)(II). G&G seeks $3,600 in statutory damages 9 because this amount is three times the amount of the commercial licensing fee G&G would have 10 received. Dkt. No. 21-1 at 15. 11 The Ninth Circuit has not established a formula for calculating damages under 47 U.S.C. 12 § 605. Courts in this district have taken various approaches, considering factors including whether 13 the defendant was a repeat offender, “use of cover charge, increase in food price during 14 programming, presence of advertisement, number of patrons, number of televisions used, and 15 impact of the offender’s conduct on the claimant.” J & J Sports Prods., Inc. v. Concepcion, No. C 16 10-05092 WHA, 2011 WL 2220101 , at *4 (N.D. Cal. June 7, 2011). Some have awarded statutory 17 damages in the amount of the licensing fee. See, e.g., G & G Closed Cir. Events, LLC v. Zapata, 18 No. 5:18-CV-01103-EJD, 2019 WL 3891219 , at *1 (N.D. Cal. Aug. 19, 2019) (awarding statutory 19 damages in amount of licensing fee). 20 G&G urges this Court to follow the formula in J & J Sports Prods., Inc. v. Segura, No. 41721 CV-05335-YGRKAW, 2018 WL 1868271 , at *6 (N.D. Cal. Apr. 19, 2018), report and 22 recommendation adopted, No. 17-CV-05335-YGR, 2018 WL 2445293 (N.D. Cal. May 31, 2018), 23 where the court awarded statutory damages amounting to three times the licensing fee. Dkt. No. 24 22-1 at 13–14. But the court in Segura found that treble damages were appropriate due to the 25 “defendant’s status as a repeat offender.” G&G admits that is not the case here. Dkt. No. 22-1 at 26 16. 27 G&G alleges that the Program was shown on one screen on a “far wall towards the back” of 1 The establishment did not have a cover charge. Id. G&G does not allege any advertisement of the 2 || Program and makes only conclusory allegations that the broadcast “resulted in increased profit for 3 Brews & Brats.” Dkt. No. 1 at 22. G&G does not allege that defendants were repeat offenders. Dkt. 4 || No. 22-1 at 16. In light of these facts, the Court finds that the appropriate amount of statutory 5 || damages is $1,000. The Court finds that enhanced statutory damages are not appropriate in the 6 || absence of evidence that defendants committed the offense “willfully and for purposes of direct or 7 indirect commercial advantage or private financial gain.” [8] 9 B. Conversion 10 G&G also seeks damages for conversion in the amount of $1,200, which is what it would 11 have cost defendants to license the Program from G&G. Dkt. No. 22-2 at 22. The elements of 12 || conversion are (1) ownership of a right to possession of property; (2) wrongful disposition of the 13 property right of another, and (3) damages. See G.S. Rasmussen & Assoc. v. Kalitta Flying Serv., 14 || 958 F.2d 896, 906 (9th Cir. 1992). The Supreme Court of California has held that “property subject 3 15 to a conversion claim need not be tangible in form; intangible property interests, too, can be a 16 converted.” Voris v. Lampert, 7 Cal. 5th 1141, 1151 , 446 P.3d 284, 290 (2019). The Court finds 3 17 that G&G has met the elements of its conversion claim and damages in the amount of $1,200 are 18 appropriate. [19] 20 CONCLUSION 21 For the foregoing reasons and for good cause shown, and on the basis of the record before 22 || it, the Court GRANTS the plaintiffs motion for default judgment and awards plaintiff $2,200 in 23 damages. [24] 25 IT IS SO ORDERED. 26 Dated: March 10, 2023 28 United States District Judge