United States District Court, D. Arizona
ORDER AND DEFAULT JUDGMENT
G. Campbell United States District Judge.
has filed a motion for default judgment. Doc. 29. The Court
held a hearing on January 26, 2017, and will grant the
owned the exclusive nationwide commercial distribution rights
to a program entitled “The Fight of the
Century”: Floyd Mayweather, Jr. v. Manny Pacquiao
Championship Fight Program. The program aired on May 2,
2015. Id. Plaintiff claims that Defendants
intercepted the program and displayed it to the public at
Cleopatra, a bar or restaurant. Plaintiff filed suit seeking
relief for Defendants' violations of the Communications
Act of 1934 (47 U.S.C. § 605 et seq.) and the
Cable and Television Consumer Protection and Competition Act
of 1992 (47 U.S.C. § 553 et seq.). Doc. 1.
Plaintiff served Defendants, who have not answered or
otherwise responded to the complaint. On September 1, 2016,
the Clerk entered default against Defendants. Doc. 21.
Plaintiff filed the motion for default judgment. Doc. 29. No
response to the motion has been filed.
Motion for Default Judgment.
party's default has been entered, the district court has
discretion to grant default judgment against that party.
See Fed. R. Civ. P. 55(b)(2); Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors the
court may consider in deciding whether to grant default
judgment include (1) the possibility of prejudice to the
plaintiff, (2) the merits of the claim, (3) the sufficiency
of the complaint, (4) the amount of money at stake, (5) the
possibility of a dispute concerning material facts, (6)
whether default was due to excusable neglect, and (7) the
policy favoring a decision on the merits. Eitel v.
McCool, 782 F.2d 1470, 1471-72. In applying the
Eitel factors, “the factual allegations of the
complaint, except those relating to the amount of damages,
will be taken as true.” Geddes v. United Fin.
Grp., 559 F.2d 557, 560 (9th Cir. 1977).
Possible Prejudice to Plaintiff.
first Eitel factor weighs in favor of granting
Plaintiff's motion. Plaintiff served process on
Defendants on July 13 and 14, and August 4, 2016. Docs. 11,
12, 17. Defendants have not answered the complaint or
otherwise appeared in this action. If Plaintiff's motion
for default judgment is not granted, Plaintiff “will
likely be without other recourse for recovery.”
PepsiCo, Inc. v. Cal. Security Cans, 238 F.Supp.2d
1172, 1177 (C.D. Cal. 2002).
Merits of Plaintiff's Claims and the Sufficiency of the
second and third Eitel factors favor a default
judgment where the complaint sufficiently states a claim for
relief. See PepsiCo, Inc., 238 F.Supp.2d at 1175.
Plaintiff seeks relief under 47 U.S.C. § 605.
“[T]o be held liable for a violation of section 605, a
defendant must be shown to have (1) intercepted or aided the
interception of, and (2) divulged or published, or aided the
divulging or publishing of, a communication transmitted by
the plaintiff.” Nat'l Subscription Television
v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981).
Section 605 applies to satellite television signals.
DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir.
2008). Plaintiff has alleged that Defendants willfully
intercepted and displayed the licensed program on May 2,
2015. Plaintiff's allegations are supported by the
affidavits of two investigators who visited Cleopatra and saw
the program being displayed on television screens. Doc. 29-3.
One of these investigators noted approximately 200 patrons
watching the program on five television screens. The
investigator also found flyers in the restaurant advertising
the fight. Plaintiff has stated a claim for a willful
violation of section 605. The second and third factors favor
a default judgment.
Amount of Money at Stake.
the fourth Eitel factor, the Court considers the
amount of money at stake in relation to the seriousness of
the defendants' conduct. Plaintiff seeks $10, 000 in
statutory damages and $50, 000 in enhanced statutory damages.
Doc. 29 at 10. Defendant's violation was serious. They
displayed the program to some 200 patrons, advertised to
attract the business, and assessed a $20 cover charge. The
violation clearly appears to have been willful.
Possible Dispute Concerning Material Facts.
the sufficiency of the complaint and Defendant's default,
“no genuine dispute of material facts would preclude
granting [Plaintiff's] ...