1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, No. 2:22-cv-1089 DB LLC, 12 13 Plaintiff, ORDER AND 14 v. FINDINGS AND RECOMMENDATIONS 15 LA PLACITA RM RESTAURANT INC., et al., 16 17 Defendants. 18 19 This matter came before the undersigned on January 13, 2023, for hearing of plaintiff 20 G&G Closed Circuit Events LLC’s (“plaintiff”) motion for a default judgment against defendants 21 La Placita RM Restaurant Inc, Maria Mercado Garin, and Rafael Zepeda individually and in their 22 capacity as owners of La Placita Taqueria (“defendants”). Attorney Thomas P. Riley appeared on 23 behalf of plaintiff via Zoom. No appearance was made by a defendant or on their behalf. 24 Oral argument was heard, and the motion was taken under submission. Considering all 25 documents submitted regarding the motion and oral argument, the undersigned recommends 26 plaintiff’s motion for default judgment be granted. 27 //// 28 //// 1 BACKGROUND 2 Plaintiff initiated this matter by filing a complaint on June 24, 2022, and paying the 3 required filing fee. (ECF No. 1.) Plaintiff, G&G Closed Circuit Events LLC, is a California 4 corporation in the business of distributing and licensing sporting events. (Compl. (ECF No. 1) at 5 61.) Plaintiff’s complaint alleges that it was granted exclusive rights to the nationwide 6 distribution of Manny Pacquiao v. Yordenis Ugas (“Program”), telecast on August 21, 2021. 7 (Id.) Plaintiff entered into sublicensing agreements with commercial entities, granting rights to 8 exhibit the Program at their respective establishments. (Id.) Plaintiff expended resources 9 marketing and transmitting the Program to customers. (Id.) Defendants are the owners, 10 operators, licensees, permittees, or persons in charge of the commercial establishment doing 11 business as La Placita Taqueria, operating at 222 N. El Dorado, Suite D, Stockton, CA 95202. 12 (Id. at 3.) Plaintiff’s complaint alleges defendants, without purchasing a sublicense, unlawfully 13 screened the Program on August 21, 2021, in their establishment. (Id. at 7.) Based on these 14 allegations the complaint alleges claims pursuant to 47 U.S.C. § 605, et seq., 47 U.S.C. § 533, et 15 seq., for conversion; and violation of the California Business and Professions Code § 17200, et 16 seq. (Id. at 1.) 17 Proof of service of process on defendants was filed on August 12, 2022. (ECF Nos. 6, 7, 18 8). On September 2, 2022 plaintiff filed a request for entry of defendants’ default. (ECF No. 9.) 19 Default was entered on September 6, 2022. (ECF No. 10.) Plaintiff filed a motion for default 20 judgment on November 16, 2022. (ECF No. 11.) Defendants were served with the request for 21 entry of default and the motion for default judgment. (ECF No. 9 at 3; ECF No. 11 at 4.) The 22 matter came before the undersigned for hearing on January 13, 2023. Attorney Thomas P. Riley 23 appeared on behalf of the plaintiff. No appearance was made by a defendant or on their behalf. 24 (ECF No. 13.) 25 //// 26 //// 27 1 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 LEGAL STANDARDS 2 Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default 3 judgment. Upon entry of default, the complaint’s factual allegations regarding liability are taken 4 as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. 5 v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United 6 States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also 7 DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 8 F.2d 915, 917-18 (9th Cir. 1987). 9 Where damages are liquidated, i.e., capable of ascertainment from definite figures 10 contained in documentary evidence or in detailed affidavits, judgment by default may be entered 11 without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, 12 however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722 13 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993). 14 Granting or denying default judgment is within the court’s sound discretion. Draper v. 15 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 16 1980). The court considers a variety of factors in exercising its discretion. Eitel v. McCool, 782 17 F.2d 1470, 1471-72 (9th Cir. 1986). Among them are: 18 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 19 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 20 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 21 22 Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-26). 23 ANALYSIS 24 1. The Eitel Factors Favor Entry of Default Judgment 25 a. Possibility of Prejudice to the Plaintiff 26 The first Eitel factor contemplates the possibility of prejudice to the plaintiff if a default 27 judgment is not entered. Eitel, 782 F.2d at 1471. Prejudice can be established where failure to 28 enter a default judgment would leave plaintiffs without a proper remedy. Pepsico, Inc. v. Cal. 1 Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal 2002). Here, plaintiff has no alternative for 2 recovering damages suffered as a result of defendants’ act of piracy. Since defendants failed to 3 appear in this action, denial of default judgment would leave plaintiff no remedy for this injury. 4 Accordingly, the first factor weighs in favor of default judgment. 5 b. Merits of Plaintiff’s Substantive Claims and Sufficiency of the Complaint 6 The second and third Eitel factors jointly examine whether the plaintiff has pleaded facts 7 sufficient to establish and succeed upon its claims. Pepsico, Inc., 238 F.Supp.2d at 1175 (citing 8 Kleopping v. Fireman’s Fund, 1996 WL 75314, at *2 (N.D. Cal. Feb. 14, 1996)). Plaintiff’s 9 motion for default judgment seeks recovery on its Section 605 and conversion claims; the 10 elements and facts alleged in support are examined below. (ECF No. 11 at 3.) 11 i. Violation of 47 U.S.C. § 605 12 A violation of Section 605 requires that a defendant “(1) intercepted or aided the 13 interception of, and (2) divulged or published, or aided the divulging or publishing of, a 14 communication transmitted by the plaintiff.” Nat’l Subscription Television v. S & H TV, 644 15 F.2d 820, 826 (9th Cir. 1981). Since the 1984 amendments to Section 605, communications 16 protected by the statute include satellite television signals. Sosa v. DIRECTV, Inc., 437 F.3d 17 923, 926 (9th Cir. 2006).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G & G CLOSED CIRCUIT EVENTS, No. 2:22-cv-1089 DB LLC, 12 13 Plaintiff, ORDER AND 14 v. FINDINGS AND RECOMMENDATIONS 15 LA PLACITA RM RESTAURANT INC., et al., 16 17 Defendants. 18 19 This matter came before the undersigned on January 13, 2023, for hearing of plaintiff 20 G&G Closed Circuit Events LLC’s (“plaintiff”) motion for a default judgment against defendants 21 La Placita RM Restaurant Inc, Maria Mercado Garin, and Rafael Zepeda individually and in their 22 capacity as owners of La Placita Taqueria (“defendants”). Attorney Thomas P. Riley appeared on 23 behalf of plaintiff via Zoom. No appearance was made by a defendant or on their behalf. 24 Oral argument was heard, and the motion was taken under submission. Considering all 25 documents submitted regarding the motion and oral argument, the undersigned recommends 26 plaintiff’s motion for default judgment be granted. 27 //// 28 //// 1 BACKGROUND 2 Plaintiff initiated this matter by filing a complaint on June 24, 2022, and paying the 3 required filing fee. (ECF No. 1.) Plaintiff, G&G Closed Circuit Events LLC, is a California 4 corporation in the business of distributing and licensing sporting events. (Compl. (ECF No. 1) at 5 61.) Plaintiff’s complaint alleges that it was granted exclusive rights to the nationwide 6 distribution of Manny Pacquiao v. Yordenis Ugas (“Program”), telecast on August 21, 2021. 7 (Id.) Plaintiff entered into sublicensing agreements with commercial entities, granting rights to 8 exhibit the Program at their respective establishments. (Id.) Plaintiff expended resources 9 marketing and transmitting the Program to customers. (Id.) Defendants are the owners, 10 operators, licensees, permittees, or persons in charge of the commercial establishment doing 11 business as La Placita Taqueria, operating at 222 N. El Dorado, Suite D, Stockton, CA 95202. 12 (Id. at 3.) Plaintiff’s complaint alleges defendants, without purchasing a sublicense, unlawfully 13 screened the Program on August 21, 2021, in their establishment. (Id. at 7.) Based on these 14 allegations the complaint alleges claims pursuant to 47 U.S.C. § 605, et seq., 47 U.S.C. § 533, et 15 seq., for conversion; and violation of the California Business and Professions Code § 17200, et 16 seq. (Id. at 1.) 17 Proof of service of process on defendants was filed on August 12, 2022. (ECF Nos. 6, 7, 18 8). On September 2, 2022 plaintiff filed a request for entry of defendants’ default. (ECF No. 9.) 19 Default was entered on September 6, 2022. (ECF No. 10.) Plaintiff filed a motion for default 20 judgment on November 16, 2022. (ECF No. 11.) Defendants were served with the request for 21 entry of default and the motion for default judgment. (ECF No. 9 at 3; ECF No. 11 at 4.) The 22 matter came before the undersigned for hearing on January 13, 2023. Attorney Thomas P. Riley 23 appeared on behalf of the plaintiff. No appearance was made by a defendant or on their behalf. 24 (ECF No. 13.) 25 //// 26 //// 27 1 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 system and not to the page numbers assigned by the parties. 1 LEGAL STANDARDS 2 Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default 3 judgment. Upon entry of default, the complaint’s factual allegations regarding liability are taken 4 as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. 5 v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United 6 States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also 7 DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 8 F.2d 915, 917-18 (9th Cir. 1987). 9 Where damages are liquidated, i.e., capable of ascertainment from definite figures 10 contained in documentary evidence or in detailed affidavits, judgment by default may be entered 11 without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, 12 however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722 13 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993). 14 Granting or denying default judgment is within the court’s sound discretion. Draper v. 15 Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 16 1980). The court considers a variety of factors in exercising its discretion. Eitel v. McCool, 782 17 F.2d 1470, 1471-72 (9th Cir. 1986). Among them are: 18 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 19 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 20 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 21 22 Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-26). 23 ANALYSIS 24 1. The Eitel Factors Favor Entry of Default Judgment 25 a. Possibility of Prejudice to the Plaintiff 26 The first Eitel factor contemplates the possibility of prejudice to the plaintiff if a default 27 judgment is not entered. Eitel, 782 F.2d at 1471. Prejudice can be established where failure to 28 enter a default judgment would leave plaintiffs without a proper remedy. Pepsico, Inc. v. Cal. 1 Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal 2002). Here, plaintiff has no alternative for 2 recovering damages suffered as a result of defendants’ act of piracy. Since defendants failed to 3 appear in this action, denial of default judgment would leave plaintiff no remedy for this injury. 4 Accordingly, the first factor weighs in favor of default judgment. 5 b. Merits of Plaintiff’s Substantive Claims and Sufficiency of the Complaint 6 The second and third Eitel factors jointly examine whether the plaintiff has pleaded facts 7 sufficient to establish and succeed upon its claims. Pepsico, Inc., 238 F.Supp.2d at 1175 (citing 8 Kleopping v. Fireman’s Fund, 1996 WL 75314, at *2 (N.D. Cal. Feb. 14, 1996)). Plaintiff’s 9 motion for default judgment seeks recovery on its Section 605 and conversion claims; the 10 elements and facts alleged in support are examined below. (ECF No. 11 at 3.) 11 i. Violation of 47 U.S.C. § 605 12 A violation of Section 605 requires that a defendant “(1) intercepted or aided the 13 interception of, and (2) divulged or published, or aided the divulging or publishing of, a 14 communication transmitted by the plaintiff.” Nat’l Subscription Television v. S & H TV, 644 15 F.2d 820, 826 (9th Cir. 1981). Since the 1984 amendments to Section 605, communications 16 protected by the statute include satellite television signals. Sosa v. DIRECTV, Inc., 437 F.3d 17 923, 926 (9th Cir. 2006). Where direct evidence of a defendant’s satellite signal piracy is 18 unavailable, circumstantial evidence may suffice. Id. 19 Here, plaintiff established exclusive ownership of the distribution rights to the Program. 20 (ECF No. 1 at 6.) Plaintiff has provided evidence that defendants were never granted a sublicense 21 to the Program. (Id.) However, an investigator visiting La Placita Taqueria on August 21, 2021, 22 witnessed the Program being broadcast on a television within the establishment. (ECF No. 11-2 23 at 2.) Plaintiff acknowledges their inability to determine the method of interception. (ECF No. 24 11-1 at 9.) Given the circumstances it can be inferred the broadcast relied on an unlawful 25 interception of the Program. See J & J Sports Prods. Inc. v. Barajas, No. 115-cv-01733 TLN 26 JLT, 2016 WL 1110446, at *3 (E.D. Cal. Mar. 22, 2016). Plaintiff has alleged facts meeting the 27 elements for a claim under Section 605. 28 //// 1 ii. Conversion 2 A conversion claim requires that the plaintiff has “(1) ownership of or right to possess the 3 property at time of conversion, (2) that the defendant disposed of the plaintiff’s property rights or 4 converted the property by wrongful act, and (3) damages.” Bank of New York v. Fremont 5 General Corp., 523 F.3d 902, 914 (9th Cir. 2008). Here, plaintiff has established exclusive 6 ownership of the distribution rights to the Program. (ECF No. 1 at 6.) See G & G Closed Cir. 7 Events, LLC v. Saddeldin, No. 1:10-CV-00062-AWI-SK, 2010 WL 3036455, at *4 (E.D. Cal. 8 Aug. 2, 2010) (stating that exclusive distribution rights constitute a right to possession of property 9 for purposes of conversion). 10 Additionally, plaintiff has shown that the defendants engaged in signal piracy when 11 exhibiting the Program without a sublicense causing plaintiff to suffer financial loss of the 12 sublicensing fee. (ECF No. 11-1 at 16.) Plaintiff’s investigator observed 6 patrons in La Placita 13 Taqueria, with an approximate capacity of 75 people. (ECF No. 11-2 at 2.) The rate card for the 14 Program states a sublicensing fee of $1,300 for a capacity of 1-100 people. (ECF No. 11-3 at 15 22.) Plaintiff has established damages for conversion in the amount of $1,300. See Joe Hand 16 Promotions, Inc. v. Dhillon, No. 2:15-cv-1108-MCE-KJN, 2015 WL 7572076, at *6 (E.D. Cal. 17 Nov 25, 2015). Thus, plaintiff has successfully established a claim for conversion. 18 c. Sum of Money at Stake 19 In weighing the fourth Eitel factor, “the court must consider the amount of money at stake 20 in relation to the seriousness of the defendant’s conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1176- 21 77. The factor weighs against default judgment when a large sum of money is at stake. Eitel, 782 22 F. 2d. at 1472. 23 Here, plaintiff seeks $5,200 in statutory damages and $25,000 in enhanced damages under 24 Section 605. (ECF No. 11-1 at 12.) Plaintiff also seeks $1,300 in compensatory damages for 25 conversion, an amount equal to the sublicensing fee. (ECF No. 11-1 at 12.) Plaintiff is seeking a 26 moderate sum of money; however, courts are granted discretion in awarding damages. The 27 undersigned declines to recommend judgment in the amount requested, as discussed below. As 28 such, this factor does not weigh against default judgment. 1 d. Possibility of Disputed Material Facts 2 The fifth Eitel factor examines whether a dispute regarding material fact exists. Eitel, 782 3 F.2d. at 1471-72. Here, defendants failed to appear leading to an entry of default. (ECF No. 10.) 4 Given the circumstances there is no possibility for a dispute in material fact. See Elektra Entm’t 5 Group, Inc. v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a 6 well-pleaded complaint are taken as true after the court clerk enters default judgment, there is no 7 likelihood that any genuine issue of material fact exists”). The factor weighs in favor of a default 8 judgment. 9 e. Whether the Default Was Due to Excusable Neglect 10 The sixth Eitel factor considers whether defendants’ failure to answer is due to excusable 11 neglect. Eitel, 782 F.2d at 1471-72. This factor considers due process, ensuring defendants are 12 given reasonable notice of the action. See Mullane v. Central Hanover Bank & Trust Co., 339 13 U.S. 306, 314 (1950). 14 Here, defendants were properly served with a copy of the complaint. (ECF Nos. 6-8.) 15 Additionally, defendants were served with copies of plaintiff’s request to enter default and 16 plaintiff’s motion for default judgment. (ECF No. 9 at 3; ECF No. 11 at 4.) Under the 17 circumstances, it is unlikely that the defendants’ actions were the result of excusable neglect. 18 Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 19 2001) (finding no excusable neglect because the defendants were served with the complaint, the 20 notice of entry of default, as well as the papers in support of the instant motion). This factor does 21 not weigh against default judgment. 22 f. Policy of Deciding Cases on the Merits 23 The seventh Eitel factor considers the courts general disposition favoring judgments on 24 the merits. Eitel 782 F.2d at 1472. The defendants’ failure to appear has made a judgment on the 25 merits impossible. Accordingly, this factor does not weigh against a default judgment. 26 Given the complaint and in consideration of the Eitel factors, the undersigned finds the 27 factors weigh in favor of granting plaintiff’s motion for default judgment. 28 //// 1 2. Terms of Judgment 2 The undersigned having found default judgment is appropriate, must now address the 3 issue of damages. After considering the plaintiff’s briefing and the record in this case the 4 undersigned recommends an award of statutory damages pursuant to Section 605 in the amount of 5 $3,000. However, the undersigned does not recommend enhanced damages pursuant to Section 6 605 or damages for conversion. 7 a. Damages Under 47 U.S.C. § 605 8 Each violation of Section 605 allows a plaintiff to recover an award of statutory damages 9 “in a sum of not less than $1,000 or more than $10,000, as the court considers just.” 47 U.S.C. § 10 605(e)(3)(C)(i)(II). The statute further provides that enhanced damages may be awarded up to 11 $100,000, where the court finds that “the violation was committed willfully and for purposes of 12 direct or indirect commercial advantage or private financial gain.” 47 U.S.C. 605(e)(3)(C)(ii). 13 Courts maintain their discretion in determining the appropriate amount of damages. Kingvision 14 Pay–Per–View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1198 (N.D. Cal. 2000). 15 i. Statutory Damages 16 Plaintiff’s motion for default judgment requests $5,200 in statutory damages. (ECF No. 17 11 at 3.) The court can consider the following factors when determining statutory damages: 18 promotional advertising by the defendant, the capacity of the establishment, the number of 19 patrons present at the time of the broadcast, a cover charge, the number and size of televisions 20 used for the broadcast, and whether a premium was charged on food and drink. Integrated Sports 21 Media, Inc. v. Naranjo, No. 1:10-CV-00445, 2010 WL 3171182, at *4 (E.D. Cal. Aug. 11, 2010). 22 Courts may also consider whether the defendants are repeat offenders. Backman, 102 F. Supp. 2d 23 at 1198. Courts weigh all factors, awarding statutory damages “according to the totality of the 24 relevant circumstances.” G & G Closed Cir. Events, LLC v. Olvera, No. 2:18-CV-02467 MCE 25 AC, 2020 WL 1503376, at *3 (E.D. Cal. Mar. 30, 2020). 26 Here, the plaintiff has submitted evidence establishing that the defendants advertised 27 showing the Program on their Instagram. (ECF No. 11-4 at 11.) Moreover, an investigator’s 28 affidavit submitted by plaintiff states an approximate capacity of 75 people at the establishment 1 and that six people were present prior to the investigator’s departure. (ECF No. 11-2 at 2.) The 2 investigator also stated that the Program was shown on one of two televisions, and that the 3 television was approximately 50-60 inches wide. (Id.) Plaintiff provided no evidence that 4 defendants imposed a cover charge, a premium on food and drinks, or that the defendants 5 engaged in signal piracy on previous occasions. 6 Under these circumstances, the undersigned will recommend an award of statutory 7 damages in the amount of $3,000—more than twice the amount defendants would have paid for a 8 license. The amount is proportional to the violation, while serving as a deterrence of future 9 violations as Section 605 intended. In addition, it aligns with statutory damages awarded in 10 similar circumstances in this district. See G & G Closed Circuit Events, LLC v. Barajas-Quijada, 11 Case No. 1:19-cv-1259 AWI JLT, 2020 WL 64782, at *5 (E.D. Cal. Jan. 7, 2020) 12 (recommending “award of $5,600—which is twice the cost of a proper sublicense” where 54 13 patrons were present, defendant advertised, and collected a cover charge); J & J Sports 14 Productions, Inc. v. Carranza, CASE NO. 1:15-CV-1041 TLN SMS, 2015 WL 12681674, at *2 15 (E.D. Cal. Dec. 29, 2015) (“plaintiff has not demonstrated any damages greater than the loss of 16 the $1,400 licensing fee and the facts do not warrant statutory damages in excess of $1,400”); 17 Naranjo, 2010 U.S. Dist. WL 3171182, at *6 (awarding $1,000 in statutory damages without 18 enhanced damages where the capacity of the restaurant was forty, the number present ranged 19 from 12 to 20, no admission fee was charged, and the program was displayed on a single 20 television). 21 ii. Enhanced Damages 22 Plaintiff seeks enhanced damages in the amount of $25,000. (ECF No. 11-1 at 12.) 23 Plaintiff argues that defendants’ unlawful actions were committed willfully and for financial gain. 24 (ECF No. 11-1 at 15.) While it is true that the complaint’s factual allegations are taken as true, 25 the same cannot be said for allegations relating to damages. Geddes, 559 F.2d at 560 (“The 26 general rule of law is that upon default the factual allegations of the complaint, except those 27 relating to the amount of damages, will be taken as true.”). 28 //// 1 Here, the only evidence in support of enhanced damages is a single Instagram post. (ECF 2 No. 11-4 at 11.) There is no evidence of a cover charge, or a premium on food and drinks, and 3 the Program was displayed on one of two televisions with six people present. (ECF No. 11-2 at 4 2.) The plaintiff fails to establish defendants’ financial gain. See Backman, 102 F. Supp. 2d at 5 1198 (noting that “there were only 16 patrons in Defendant's establishment at the time of the 6 violation, any commercial advantage or private financial gain was minimal at best.”). Under the 7 circumstances, the undersigned declines to recommend awarding enhanced damages. 8 b. Damages for Conversion 9 Plaintiff also requests damages in the amount of $1,300 for conversion. (ECF No. 11-1 at 10 3). Given that plaintiff sought and has been awarded statutory damages under Section 605, 11 plaintiff has been sufficiently compensated, and an additional award for conversion is redundant. 12 See Barajas-Quijada, 2020 WL 635264 at *4 (“this Court has repeatedly declined to award 13 damages for conversion in addition to statutory damages for the same wrong”); J & J Sports 14 Productions, Inc. v. Carranza, Case No. 1:15-cv-1041 TLN SMS, 2015 WL 12681674, at *3 15 (E.D. Cal. Dec. 29, 2015) (“Damages awarded under section 605 sufficiently compensate 16 Plaintiff. Additional damages for conversion are not recommended.”); J & J Sports Prods., Inc. v. 17 Mannor, No. 2:10-CV-3021-LKK-JFM, 2011 WL 1135356, at *3 (E.D. Cal. Mar. 28, 2011) 18 (stating that “plaintiff has been sufficiently compensated through the federal statutory scheme” 19 where the award total was $3,200 and the cost of the proper license was $2,200); J & J Sports 20 Prods., Inc. v. Bachman, No. 209CV01225FCDKJN, 2010 WL 11575444, at *6 (E.D. Cal. May 21 7, 2010) (not awarding conversion damages where the amount of statutory damages “sufficiently 22 compensate[d]” the plaintiff). 23 CONCLUSION 24 Having considered the Eitel factors, the undersigned finds they weigh in favor of a default 25 judgment for plaintiff. The undersigned finds that an award of statutory damages in the amount 26 of $3,000 is appropriate to compensate plaintiff and deter future violations by defendants. 27 However, because there is no evidence of willfulness on the part of defendants, and because 28 plaintiff has been sufficiently compensated by statutory damages, the undersigned does not 1 | recommend awarding enhanced damages or damages for conversion. 2 For the reasons set forth above, IT IS HEREBY ORDERED that the Clerk of the Court 3 | randomly assign this action to a District Judge. 4 Also, IT IS HEREBY RECOMMENDED that: 5 1. Plaintiff's November 16, 2022, motion for default judgment (ECF No. 11.) be granted. 6 2. Judgment be entered against defendants in the sum of $3,000; and 7 3. This case be closed. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 | days after these findings and recommendations are filed, any party may file written objections 11 | with the court. A document containing objections should be titled “Objections to Magistrate 12 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 13 | within 14 days after service of the objections. The parties are advised that failure to file 14 | objections within the specified time may, under certain circumstances, waive the right to appeal 15 | the District Court’s order. See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | Dated: August 7, 2023 17 18 19 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 | DLB:6 38 DB\orders\orders.civil\g&g1089.mdj.fr.zm2 10