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J & J Sports Productions, Inc. v. Enciso-Chavez

United States District Court, D. Oregon

October 24, 2018

J & J Sports Productions, Inc., Plaintiff,
v.
Sotero Enciso-Chavez, et al. Defendants.

          OPINION AND ORDER

          MICHAEL J. MCSHANE, UNITED STATES DISTRICT JUDGE.

         Plaintiff J & J Sports Productions, Inc. moves this Court for a default judgment and damages pursuant to Fed.R.Civ.P. 55(b)(2). Pl.'s Mot., ECF No. 17, 1. For the reasons set forth below, Plaintiff's motion, ECF No. 17, is GRANTED.

         BACKGROUND

         Plaintiff brought this action against Defendants Sotero Enciso-Chavez and Soten LLC- operating as 7 Mares Restaurant and Bar (“7 Mares”)-on September 11, 2017. Pl.'s Compl., ECF No. 1, 1. Plaintiff alleges that Enciso-Chavez, by himself or through his employees, directed or permitted 7 Mares to intercept, broadcast, and/or publish the Floyd Mayweather Jr. v. Andre Berto WBA/WBC Welterweight Championship Fight Program (“the program”) on September 12, 2015. Pl.'s Compl. ECF No. 1, 4. Plaintiff had exclusive nationwide commercial distribution rights to the program and entered into sublicensing agreements throughout North America, including Oregon, permitting commercial establishments to publicly display the program. Pl.'s Compl., ECF No. 1, 4-5. Defendants did not enter into such an agreement. See id. at 7. Plaintiff alleges that Defendants unlawfully intercepted, received, and exhibited the program in violation of Title 47 U.S.C. § 605, et seq. with full knowledge that it was illegal to do so. Id. at 5.

         Plaintiff seeks $10, 000 in statutory damages under § 605(e)(3)(C)(i)(II), $30, 000 in enhanced statutory damages under § 605(e)(3)(C)(ii), $3, 000 for trespass of chattels, and attorney's fees and costs under § 605(e)(3)(B)(iii). Pl's Mot., ECF No. 17, 3.

         Plaintiff served Defendants by officer service to a manager at the establishment on September 21, 2017, and by mail on October 9, 2017. ECF Nos. 7 and 8. Plaintiff also effectuated service by officer service on September 21, 2017 and mail on October 9, 2017 to the last-known addresses of Sotero Enciso-Chavez and Soten LLC. ECF Nos. 9 and 10. Plaintiff then filed and served Defendants and their attorney, Scott Howard, by mail with a Notice of Intent to Take Default Against All Defendants on December 1, 2017. ECF No. 11. Mr. Howard briefly represented Defendants in this matter and allegedly contacted Plaintiff's representative to discuss the possibility of settlement. Pl.'s Mot., ECF No. 17, 4; Orr Decl., ECF No. 18, ¶ 13. Plaintiff filed a Motion for Entry of Default on January 19, 2018. ECF No. 12. This Court granted Plaintiff's Motion on February 12, 2018. ECF No. 13.

         Defendants have not filed any responsive pleadings or notice of intent to appear.

         STANDARDS

         A defendant must file a responsive pleading within 21 days of being served, or within 60 days if the defendant has timely waived service. Fed.R.Civ.P. 12(a)(1). “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a).

         After entering an order of default, the district court has discretion to issue a default judgment. See Fed. R. Civ. P. 55(b); DirecTV, Inc. v. Huynh, 503 F.3d 847, 852 (9th Cir. 2007), cert. denied, 555 U.S. 937 (2008). This Court has "considerable leeway as to what it may require as a prerequisite to the entry of a default judgment." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (per curiam) (footnote omitted). This Court may take the complaint's well-pleaded factual allegations as true, other than the amount of damages. Id. at 917-18 (citation omitted); Huynh, 503 F.3d at 854 (citations omitted); see also Fed. R. Civ. P. 8(b)(6). “However, a ‘defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.'” Huynh, 503 F.3d at 854 (quoting Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

         DISCUSSION

         I. Entry of Default Judgment

          In considering an entry of default judgment, this Court examines the seven Eitel factors:

(1) [T]he 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 ...


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