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J & J Sports Productions, Inc. v. Silva

United States District Court, D. Oregon, Portland Division

November 20, 2017

NATIVIDAD SILVA and REPUBLICA MEXICAN RESTAURANT LLC, an Oregon limited liability company, Defendants.



         This matter comes before me on Plaintiff J & J Sports Productions, Lie's Motion for Default Judgment by the Court [13]. For the reasons below, I GRANT the Motion as it pertains to Defendant Republica Mexican Restaurant LLC, DENY the Motion as it pertains to Defendant Natividad Silva, and award statutory damages of $3, 000 and enhanced damages of $10, 000.


         Plaintiff J & J Sports Productions is a California corporation that held the exclusive commercial distribution rights to the "Fight of the Century, " a boxing match between Floyd May weather Jr. and Manny Pacquaio held on May 2, 2015 ("the Mayweather/Pacquiao match"). Compl. [1] ¶ 20. Defendant Natividad Silva is the manager and owner of Defendant Republica Mexican Restaurant LLC ("Republica"), a restaurant/club located in Hillsboro, Oregon. Compl. [1] ¶¶ 9-13. J & J Sports sent three private investigators to Republica on fight night. Each of the investigators paid a cover charge of $ 10-$ 15. Motion for Default Judgment [13], Ex. 1 at 9-16. Two investigators observed TVs showing the under-card match between 7:00-8:30 P.M., and one investigator observed TVs showing the May weather/Pacquiao match after 9 P.M. Motion [13], Ex. 1 at 9-16. The investigators estimated the capacity of Republica to be 90-150 people, although the investigator who saw the Mayweather/Pacquaio match estimated there were 180-200 people in the bar at the time. Motion [13], Ex. 1 at 9-16.

         J & J Sports brought claims against Republica for violations of the Communications Act of 1934, 47 U.S.C. § 605, the Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, and for trespass to chattels under Oregon law, alleging that Republica and Silva did not pay for access to the Mayweather/Pacquaio match. Personal service was effected on Natividad Silva and on Republica via Natividad Silva on May 16, 2017 [5]. Neither defendant answered or otherwise appeared, and I granted J & J Sports's Motion for Entry of Default on August 14, 2017. [10]. J & J Sports now seeks a default judgment in the amount of $49, 000 under 47 U.S.C. § 605 and for trespass to chattel. Motion [13]. Specifically, J & J seeks $10, 000 in statutory damages and $30, 000 in enhanced damages under 47 U.S.C. § 605, and $9, 000 in actual damages for trespass to chattels. Motion [13].


         After the entry of default, the court may grant default judgment and award damages. Fed.R.Civ.P. 55(b)(2). "The district court's decision whether to enter a default judgment is a discretionary one." Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cix. 1980). "The general rule of law is that upon default 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) (per curiam). "Thus, the court must accept plaintiffs facts in the complaint as true, but the plaintiff must prove damages." Joe Hand Prods. Inc. v. Holmes, No. 2:12-CV-00535-SU, 2015 WL 5144297, at *3 (D. Or. Aug. 31, 2015) (citing TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)).


         I. Default judgment

         The court may consider the following factors when deciding whether to grant a default judgment:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs 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, 1471-72 (9th Cir. 1986). I take each of these factors in turn.

         A. Factor one: the possibility of prejudice to the plaintiff.

         "Courts have found this factor favors default judgment where the plaintiffs only available legal remedy is the default judgment, and, without such a judgment, plaintiff would be left without any recourse for recovery. "Joe Hand Prods., 2015 WL 5144297, at *3. Here, defendants have not entered the case or responded in any way, and J & J Sports's only legal remedy is a default judgment. The first factor supports an entry of default judgment.

         B. Factors two and three: the merits of plaintiffs substantive claim and the sufficiency of the complaint.

         District courts often consider these two factors together, because "[t]he Ninth Circuit has suggested that these two factors [both] require that a plaintiff 'state a claim on which the [plaintiff] may recover.'" PepsiCo, Inc. v. Cal. Sec. Cans,238 F.Supp.2d 1172, 1175 (CD. Cal. 2002) (quoting Banning v. Lavine, 572 ...

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