United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE.
the Court in the above-entitled matter is the Plaintiff's
Motion for Default Judgment as to the Defendants Afrim Hetemi
and Burhan Hetemi, individually, and as officers, directors,
shareholders or principals of Bumpin' Bernies a/k/a 3D
Nightclub (“Defendants”). (Dkt. 15.) Having fully
reviewed the record, the Court finds the facts and legal
arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding delay, and because
the Court conclusively finds that the decisional process
would not be significantly aided by oral argument, the motion
will be decided on the record without oral argument.
October 24, 2016, Plaintiff filed its complaint in this
matter against Defendants. Plaintiff is a Pennsylvania
corporation that specializes in distributing and licensing
premier sporting events to commercial locations such as bars,
restaurants, lounges, clubhouses and similar establishments.
Defendants Afrim and Burhan Hetemi operate Bumpin'
Bernies, also known as the 3D Nightclub, in Twin Falls,
Idaho. Since 2001, Plaintiff has been the exclusive domestic
distributor for the world's premier mixed martial arts
promotion company, the Ultimate Fighting Championship®.
By contract, Plaintiff held the exclusive commercial
exhibition rights to the broadcasts of UFC® 183:
Silva v. Diaz, telecast nationwide on January 31, 2015
(“UFC 183 Program”), and UFC® 199:
Rockhold v. Bisping 2, telecast nationwide on June 4,
2016 (“UFC 199 Program”) (collectively
Programs' broadcast originated via satellite uplink, and
was later retransmitted interstate to cable systems and
satellite television companies via satellite signal.
Plaintiff entered into agreements with various commercial
establishments in the State of Idaho that, in exchange for a
fee, allowed them to broadcast the Programs to their patrons.
The fee is calculated based on the maximum occupancy of the
commercial establishment. (Dkt. 15-2 at 2 and 4.) In return,
Plaintiff expended funds to market, advertise, promote,
administer and transmit the Programs broadcast to those
establishments in the State of Idaho.
establishment paid the sublicense fee and was authorized to
broadcast the events, it was provided with electronic
decoding equipment and the satellite coordinates necessary to
receive the signal. Joe Hand, Jr., explained that, to
intercept the broadcasts without obtaining the decoding
equipment from Plaintiff, signal pirates must use black
boxes, smartcards, or other means of interception. (Dkt. 15-1
ensure no commercial establishment obtained the programming
without paying Plaintiff, Plaintiff engages outside
independent auditors to identify and visit establishments
that it finds are broadcasting the programming without
authorization. Plaintiff's outside auditor visited
Bumpin' Bernies on January 31, 2015, and noted that it
had an approximate capacity of one hundred people, with
fifteen patrons present watching the broadcast of the UFC 183
Program on four televisions. Another auditor visited
Bumpin' Bernies on June 4, 2016, and estimated an
approximate capacity of at least seventy-five patrons, with
seventeen patrons present watching the broadcast of the UFC
199 Program on three televisions.
did not contract with Plaintiff or pay a fee to Plaintiff to
obtain the proper license or authorization to broadcast the
Programs at either establishment. At no time did Plaintiff
give Defendants license, permission or authority to broadcast
the Programs in Bumpin' Bernies. According to the rate
sheets for the respective programs, the fee for a commercial
establishment for the UFC 183 Program if the establishment
had a capacity of 51-100 persons was $1, 100.00. The fee for
the UFC 199 Program was $998.00 for a similar occupancy rate.
of paying the sublicense fee, Plaintiff alleges that
Defendants, by unauthorized satellite transmission or,
alternatively, by unauthorized receipt over a cable system,
willfully intercepted or received the interstate
communication of the Programs or assisted in such actions.
Defendants then transmitted, divulged and published the
communication, or assisted in transmitting, divulging and
publishing the communication to patrons in Bumpin'
Bernies, without authorization, license, or permission to do
so from Plaintiff. Plaintiff contends Defendants pirated
Plaintiff's licensed exhibition of the Programs and
infringed upon Plaintiff's exclusive rights, while
avoiding proper authorization and payment to Plaintiff.
alleges Defendants' acts constitute violations of the
Communications Act of 1934, specifically sections 47 U.S.C.
§ 605 (prohibiting cable piracy), or alternatively 47
U.S.C. § 553 (prohibiting satellite piracy). The
Complaint contends Bumpin' Bernies broadcast the UFC 183
Program on January 31, 2015, and the UFC 199 Program on June
4, 2016. Defendants were served with the Summons and
Complaint on November 7, 2016. (Dkt. 7, 8.) On April 21,
2017, Plaintiff sought entry of default, which the Clerk
granted on April 24, 2017. This motion followed on May 8,
argues it is entitled to damages under 47 U.S.C. § 605,
which allows a plaintiff to recover statutory damages of up
to $10, 000.00 for each violation. 47 U.S.C. §
605(e)(3)(C)(i)(II). Additionally, Plaintiff seeks additional
damages of up to $100, 000.00 per violation, on the grounds
that the violations were committed “willfully and for
purposes of direct or indirect commercial advantage or
private financial gain….” 47 U.S.C. §
605(e)(3)(C)(ii). Plaintiff contends that $5, 000 for each
violation of Section 605(e)(3)(c)(i)(II), and $20, 000 for
each violation of Section 605(e)(3)(C)(ii), plus costs of
$545.42, would compensate it for its losses and adequately
deter future conduct. Plaintiff seeks also to collect
attorney fees, in an amount to be determined at a later time.
have not appeared in this action. Plaintiff, the only party
who has appeared, has consented in writing to the
jurisdiction of a magistrate judge to enter final orders in
to Federal Rule of Civil Procedure 55(b)(2), the Court may
enter a default judgment where default under Rule 55(a) has
been previously entered based upon failure to plead or
otherwise defend the action. Fed.R.Civ.P. 55(b). Once a
party's default has been entered, the factual allegations
of the complaint, except those concerning damages, are deemed
to have been admitted by the non-responding party. Fed. R.
Civ. Proc. 8(b)(6); see also Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir. 1977); Garamendi
v. Henin, 683 F.3d 1069, 1080 (9th Cir. 2012). “A
default judgment must not differ in kind from, or exceed in
amount, what is demanded in the pleadings.”
defendant's default does not, however, automatically
entitle the plaintiff to a court-ordered default judgment.
Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir.
1986). The court “must still consider whether the
unchallenged facts constitute a legitimate cause of action,
since a party in default does not admit mere conclusions of
law.” Landstar Ranger, Inc. v. Parth Enterprises,
Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010) (citation
omitted). “[N]ecessary facts not contained in the
pleadings, and claims which are legally insufficient, are not
established by default.” Cripps v. Life Ins. Co. of
N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992); see
also Doe v. Qi, 349 F.Supp.2d 1258, 1272 (N.D. Cal.
2004) (“[Although] the factual allegations of [the]
complaint together with other competent evidence submitted by
the moving party are normally taken as true ... this Court
must still review the facts to insure that the Plaintiffs
have properly stated claims for relief.”)). Where the
pleadings are insufficient, the Court may require the moving
party to produce evidence in support of the motion for
default judgment. See TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
default judgment should be entered is within the discretion
of the Court. Shanghai Automation Instrument Co. v.
Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001);
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980) (“The district court's decision whether to
enter a default judgment is a discretionary one.”). In
deciding whether to exercise its discretion to impose
judgment by default, the Court is directed to consider the
following: (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 underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471B72 (9th Cir.
1986) (citation omitted); see also Landstar, 725
F.Supp.2d at 920.