Case Information
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
| 3 | J &; J SPORTS PRODUCTIONS, INC., | Case No.: 2:17-cv-1210-APG-GWF | | :--: | :--: | :--: | | 4 | | ORDER GRANTING MOTION FOR DEFAULT JUDGMENT | | 5 | v. | [ECF No. 16] | | 6 | SOKEN CHEA, individually and Vaping Aristocrats; and Vaping Aristocrats, | | | 7 | Inc., an unknown business entity d/b/a Vaping Aristocrats, | | | 8 | | | | 9 | Defendants | |
| 10 | Plaintiff J&;J Sports Productions, Inc. moves for default judgment against defendant | | | 11 | Soken Chea. Chea has not appeared in the case or opposed the motion for default judgment. | | | 12 | Obtaining a default judgment under Federal Rule of Civil Procedure 55 is a two-step | | | 13 | process. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, "[w]hen a party against | | | 14 | whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that | | | 15 | failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. | | | 16 | P. 55(a). After default is entered, a party may seek entry of default judgment under Rule 55(b). | | | 17 | Upon entry of default, I take as true the factual allegations in the non-defaulting party's | | | 18 | complaint, except those related to the amount of damages. Fed. R. Civ. P. 8(b)(6); TeleVideo | | | 19 | Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (quotation omitted). Nonetheless, | | | 20 | "[e]ntry of default does not entitle the non-defaulting party to a default judgment as a matter of | | | 21 | right." Warner Bros. Entm't Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (CD. Cal. 2004) (citation | | | 22 | omitted). The "general rule [is] that default judgments are ordinarily disfavored. Cases should | | | 23 | be decided upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472 (citing Peno | |
*2 1 v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). Whether to grant a default 2 judgment lies within the district court's discretion. Id.
3 I consider the following factors in determining whether to grant a default judgment: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claims; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the 6 possibility of a dispute concerning material facts; (6) whether the default was due to excusable 7 neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 8 decisions on the merits. Eitel, 782 F.2d at 1471-72. has satisfied the procedural requirements for default judgment. The clerk has entered 10 default against Chea. ECF No. 10. Chea has not appeared in this case. Thus, there is no 11 procedural impediment to entering a default judgment. 12 The first Eitel factor considers whether J&;J will suffer prejudice if a default judgment is 13 not entered. See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (CD. Cal. 2002); 14 Next Gaming, LLC v. Glob. Gaming Grp., Inc., No. 214-CV-00071-MMD-CWH, 2016 WL 15 3750651, at *3 (D. Nev. July 13, 2016). Chea has failed to defend the lawsuit. If default 16 judgment is not entered, J&;J will be unable to pursue its claims against Chea. This factor weighs 17 in favor of entry of default judgment. 18 The second and third Eitel factors favor a default judgment when the "plaintiff state[s] a 19 claim on which the plaintiff may recover." Danning v. Lavine, 572 F.2d 1386, 1389 (9th Cir. 20 1978); see also Fed. R. Civ. P. 8. J&;J's complaint sufficiently pleads that Chea improperly 21 intercepted and displayed J&;J's showing of the Floyd Mayweather v. Marcos Rene Maidana 22 championship boxing match on March 3, 2014 (the "Program"). ECF No. 1. Thus, the second 23 and third Eitel factors weigh in favor of entry of default judgment.
*3 In assessing the fourth Eitel factor, I consider "the amount of money requested in relation to the seriousness of the defendant's conduct, whether large sums of money are involved, and whether 'the recovery sought is proportional to the harm caused by [the] defendant's conduct.'" Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1212 (W.D. Wash. 2014) (quoting Landstar Ranger, Inc. v. Earth Enters., Inc., 725 F. Supp. 2d 916, 921 (N.D. Cal. 2010)); PepsiCo., Inc., 238 F. Supp. 2d at 1176. J&;J requests (1) the maximum $10,000.00 statutory damages under 47 U.S.C. and (2) $30,000.00 under 47 U.S.C. These amounts are justified under the fourth Eitel factor. The fifth Eitel factor weighs the possibility of a dispute regarding material facts in the case. PepsiCo., Inc., 238 F. Supp. 2d at 1177. "Upon entry of default, all well-pleaded facts in the complaint are taken as true, except those relating to damages." Id. (citation omitted). Chea has not appeared or rebutted any of J&;J's allegations. J&;J has presented evidence describing its investigation supporting its allegation that the interception of the signal was willful and for commercial gain, justifying increased damages under 47 U.S.C. . Thus, the fifth Eitel factor weighs in favor of entry of default judgment.
The sixth Eitel factor considers whether the defendant's default is due to excusable neglect. PepsiCo., Inc., 238 F. Supp. 2d at 1177. The clerk of court entered default on April 3, 2018, and Chea still has not appeared over a year later. ECF No. 10. There is no evidence before me that the failure to respond is due to excusable neglect. See United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (holding that it was "perfectly appropriate" for the district court to enter default judgment against a corporation that failed to appear in the action). Given the time period during which Chea had notice of this action yet
*4 failed to appear, it is unlikely that Chea failed to respond due to excusable neglect. Thus, the sixth Eitel factor weighs in favor of entry of default judgment.
Finally, the seventh Eitel factor takes into account the policy favoring a decision on the merits. "Cases should be decided on their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. But Chea's failure to respond to the complaint "makes a decision on the merits impractical, if not impossible." PepsiCo, Inc., 238 F. Supp. 2d at 1177. Thus, while this final Eitel factor always weighs against an entry of default judgment, it does not preclude me from entering a default judgment. A decision on the merits is desirable, but under these circumstances, default judgment is warranted.
IT IS THEREFORE ORDERED that the plaintiff's motion for default judgment against defendant Soken Chea (ECF No. 16) is GRANTED. The clerk of court shall enter judgment in favor of plaintiff J&;J Sports Productions, Inc. and against defendant Soken Chea in the following amounts: a. For the Violation of Title 47 U.S.C. b. For the Violation of Title 47 U.S.C.
IT IS FURTHER ORDERED that J&;J may file a motion for attorneys' fees by June 12, 2019 .
DATED this 28th day of May, 2019.
NOTES
J&;J could request up to under that statutory section.