United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE DAVID C. NYE UNITED STATES DISTRICT COURT
the Court is Plaintiff J & J Sports Productions,
Inc.'s Motion for Default Judgment against Defendants
Paula Ochoa, individually, and d/b/a Taqueria's Paula
a/k/a Carniceria y Taqueria Paula's. Dkt. 8. Plaintiff
brought this action against Defendants for the unlawful
exhibition of the Miguel Cotto v. Sergio Martinez, WBC
Middleweight Championship Fight Program (the Program) at
the establishment doing business as Taqueria's Paula
a/k/a Carniceria y Taqueria Paula's, on Saturday, June 7,
2014. Complaint ¶ 7. For the reasons set forth below,
Plaintiff's motion for default judgment is
is a distributor of sports and entertainment programming, and
pursuant to contract, was granted the exclusive rights to
broadcast the Program nationwide. Complaint ¶ 11.
Plaintiff entered into agreements with sub-licensees to
broadcast the Program for a fee. Complaint ¶ 13.
Defendants did not obtain such a license and were not
authorized to broadcast the Program. Nevertheless, an
investigator observed, and later documented in a sworn
affidavit, the unlawful exhibition of the Program at
Taqueria's Paula a/k/a Carniceria y Taqueria Paula's,
on Saturday, June 7, 2014, in Idaho Falls, Idaho. The
investigator documented one television broadcasting the
Program and approximately 40 patrons present and watching.
Defendant charged a $5.00 fee for entry.
Complaint was filed on June 5, 2017. Dkt. 1. Plaintiff served
Defendants on June 17, 2017. Dkt. 4. No answer was ever
filed. Plaintiff moved for entry of default by the Clerk on
July 14, 2017, and the Clerk filed the Entry of Default on
August 24, 2017. Dkt. 7. Nothing in the record indicates that
Defendants have made any appearance in this action. Plaintiff
seeks default judgment against Defendants, statutory damages
of $60, 000 under 47 U.S.C. § 605, and attorney fees to
be determined at a later date.
default has been entered by the clerk, it is within the
district court's discretion to grant default judgment
against that party. Fed.R.Civ.P. 55(b)(2); Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). When
considering a motion for default judgment, “the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true.”
Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917 (9th Cir. 1987) (citations omitted); see also
Fed. R. Civ. P. 8(b)(6) (“an allegation-other than one
relating to the amount of damages-is admitted if a responsive
pleading is required and the allegation is not
Court may consider the factors articulated in Eitel v.
McCool when determining whether to grant default
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 . . . favoring decisions on the
merits.” 782 F.2d at 1471-72.
majority of the Eitel factors support a default
judgment in this case. Regarding factor (1) prejudice to the
plaintiff-if the Court wholly denied the motion, J & J
would be left without a remedy given defendants' failure
to appear and defend themselves. Factors (2) and (3),
regarding the sufficiency and merits of plaintiff's
claims, also favor a default judgment and are discussed in
the next section. Regarding factor (4) the sum of money at
stake in this action-while substantial, it is not outside the
range of damages typically requested in this type of case, as
will also be discussed herein. As for factors (5) and (6), by
virtue of Defendants' failure to appear, there is no
evidence that there are disputed material facts or that
Defendants' default was due to excusable neglect. The
seventh factor-the policy favoring decisions on the
merits-weighs against default judgment; however, as
Defendants have failed to appear in this case, there is
nothing the Court can do and such should not be held against
Plaintiffs. On balance, the Eitel factors support
Plaintiff's motion for default, therefore default
judgment will be granted.
the Court addresses damages. Although Plaintiff's
Complaint originally requested relief under two statutory
sections, 47 U.S.C. § 605(a) and 47 U.S.C. §
553(a), damages cannot be recovered under both. See J
& J Sports Prods., Inc. v. Frei, No.
4:12-CV-0127-BLW, 2013 WL 3190685, at *2 (D. Idaho June 21,
2013). Accordingly, Plaintiff has asked for damages only
under 47 U.S.C. § 605. The Court agrees that this
statute should be used instead of 47 U.S.C. § 553.