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J & J Sports Productions Inc. v. Youssef

United States District Court, D. Arizona

January 30, 2017

J&J Sports Productions, Inc., Plaintiff,
v.
Anotone Fayez Youssej a/k/a Tony Youssej, et al., Defendants.

          AMENDED ORDER AND DEFAULT JUDGMENT

          David G. Campbell, United States District Judge

         Plaintiff has filed a motion for default judgment. Doc. 29. The Court held a hearing on January 26, 2017, and will grant the motion.

         I. Background.

         Plaintiff 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.

         II. The Motion for Default Judgment.

         Once a 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).

         A. Possible Prejudice to Plaintiff.

         The 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).

         B. The Merits of Plaintiff's Claims and the Sufficiency of the Complaint.

         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.

         C. The Amount of Money at Stake.

         Under 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.

         D. Possible Dispute Concerning Material Facts.

         Given the sufficiency of the complaint and Defendant's default, “no genuine dispute of material facts would preclude granting [Plaintiff's] ...


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