DENNIS L. BECK, Magistrate Judge.
On February 13, 2012, Plaintiff J & J Sports Productions, Inc. ("Plaintiff") filed the present motion for default judgment against Defendants Angel Robert Benitez and Angela Gonzalez, individually and d/b/a Sanger Pool Hall. The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The Court held a hearing on March 23, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Thomas Riley appeared on behalf of Plaintiff. Defendants did not appear or otherwise contact the Court.
Plaintiff filed the instant action on November 10, 2011, against Defendants Angel Robert Benitez and Angela Gonzalez, individually and d/b/a Sanger Pool Hall. The Complaint alleges violations of
The First Cause of Action for violation of
On February 1, 2012, Plaintiff filed proofs of service indicating that Angela Gonzalez was personally served on January 11, 2012, at the business address of Sanger Pool Hall. Angel Robert Benitez was served on January 11, 2012, by substituted service on Angela Gonzalez. The process server also mailed the documents to Angel Robert Benitez at his business address. According to the declaration of diligence, the process server attempted service at Angel's business address three times prior to substitute service.
On February 2, 2012, pursuant to Plaintiff's request, the Clerk of the Court entered default against Defendants.
Plaintiff filed the instant motion for default judgment on February 13, 2012. Defendants were served with the motion by mail at the business address. Defendants have not filed an opposition or otherwise appeared in this action.
Federal Rule of Civil Procedure 55(b)(2) provides:
"Upon default, the well-pleaded allegations of a complaint relating to liability are taken as true."
Pursuant to the proofs of service filed with the Court, Defendants were served by personal and/or substituted service with the summons and Complaint. The Clerk entered default as to both Defendants on February 2, 2012.
Defendants are not infants or incompetent persons, and are not in the military service or otherwise exempted under the Servicemembers Civil Relief Act of 2003. Declaration of Thomas P. Riley ("Riley Dec.") ¶ 3.
Although the Complaint seeks relief pursuant to Section 605 and Section 553, Plaintiff requests recovery under Section 605. In cases involving a satellite, Section 605 is the proper statute for a damages award.
Having accepted the well pleaded allegations of the Complaint as true, Plaintiff is entitled to judgment based on Defendants' violation of 47 U.S.C. § 605. As for damages, the facts of this case distinguish it from Plaintiff's numerous other actions in this Court. The number of viewing patrons taken during three headcounts, 65, 63 and 67, is substantially higher than the numbers seen in other actions. The establishment is also relatively large, with a maximum capacity of 150 people. The Program was shown on two televisions-a 30" plasma/LED type television at the east end of the bar, and an older 19" portable television above the west end of the bar. Based on these facts, the violation likely had more than a minimal impact. Affidavit of Everett Rabbon.
Additionally, Defendants are repeat offenders. Plaintiff submits the Supplemental Declaration of Thomas Riley, in which he explains that an additional action was brought against Defendant Angel Benitez d/b/a Sanger Pool Hall in this Court on April 28, 2011.
Therefore, given the facts of this case, in addition to the recognition that deterrence is an important objective of the statute and that Defendants' actions were done wilfully for commercial advantage, the Court finds that an award of $10,000.00 in statutory damages and an additional $60,000.00 in enhanced damages is an appropriate remedy.
In addition to Section 605 damages, Plaintiff requests conversion damages totaling $4,200.00. Plaintiff indicates that this is the amount Defendants would have been required to pay had they ordered the Program from Plaintiff. Riley Dec. ¶ 7. According to Plaintiff, damages for conversion are based on the value of the property at the time of the conversion plus interest. Cal. Civ. Code § 3336 (detriment caused by wrongful conversion of personal property is presumed to be the value of the property at the time of the conversion, with interest from that time). The Court recommends an award of $4,200.00 in damages for the conversion claim.
Based on the above, the Court RECOMMENDS that judgment be entered in this action against Defendants and RECOMMENDS that damages in the total amount $74,200.00 be fixed as follows:
This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 631(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within