United States District Court, E.D. Louisiana
J&J SPORTS PRODUCTIONS, INC.
EL RANCHO SPORTS BAR & GRILL, LLC., ET. AL.
ORDER AND REASONS
the Court is Plaintiff's motion for entry of default
judgment against Defendants El Rancho Sports Bar & Grill,
LLC, ("El Rancho"), Virgilio Pena
("Pena"), and Felix Martinez
("Martinez"). Rec. Doc. 9. Plaintiff supplemented
the record with a memorandum and an affidavit. Rec. Doc. 9-2;
9-3. For the reasons discussed below, IT IS ORDERED that the
Motion (Rec. Doc. 29) is GRANTED in part and DENIED in part,
subject to reconsideration of damages.
ORDERED that no later than July 30, 2018, Plaintiff shall
submit supplemental documentation on the issue of damages,
detailing reason for amounts being requested here, including
prior similar awards that Plaintiff received in related
actions elsewhere; Plaintiff shall serve Defendants with that
is a distributor of closed circuit pay-per view boxing and
special events in the United States. Rec. Doc. 1 ¶ 12.
In order to view a closed-circuit event, the customer must
pay a set fee to Plaintiff. Id. Plaintiff alleges
that Defendants did not pay the requisite fee, but unlawfully
intercepted and broadcasted the "Program"
(Middleweight Championship Fight; hereinafter
"Program") on its premises on March 8, 2014 for
commercial advantage, increased profits, and private
financial gain. See id. ¶ 16-19; Rec. Doc.
29-1. Plaintiff further alleges that Defendants violated the
Communications Act of 1934 under 47 U.S.C. § 605 (a),
(e)(3)(a), (e)(4), and 18 U.S.C. § 2511 (1) (a), (5) in
conjunction with § 2520 (a). Rec. Doc. 1 at 2. Next,
Plaintiff alleges Defendants violated the Cable &
Television Consumer Protection and Competition Act of 1992
under 47 U.S.C. § 553. See Id. Regarding the
Communications Act of 1934, Plaintiff seeks $110, 000 in
statutory damages from each defendant, along with fees and
costs. See id. at 12-13. Further, under the Cable
& Television Consumer Protection and Competition Act of
1992, Plaintiff seeks $60, 000 in statutory damages from each
defendant, along with fees and costs. Id.
El Rancho was served on April 2, 2017, with the original
complaint (Rec. Doc. 1), making its answer due on April 23,
2017. Rec. Doc. 6. Defendant Pena was served on December 14,
2017, making his answer due on January 4, 2018. Rec. Doc. 26.
To date, neither El Rancho or Pena has filed an answer or
responsive pleadings, nor have they been in communication
with opposing counsel. See Rec. Doc. 2 9 ¶ 8.
Defendant Martinez has not been served. Rec. Doc. 25.
Plaintiff's motion for entry of default, as to El Rancho,
was granted by the Clerk of Court on June 26, 2017, over a
month after its response was due to Plaintiff's
complaint. Rec. Doc. 10. Plaintiff later moved for entry of
default on Defendant Pena, and the Clerk of Court granted the
entry on January 12, 2018, eight days after a responsive
pleading was due. Rec. Doc. 28. Plaintiff submitted a
memorandum in support of default judgment. See Rec. Doc. 2
Rule of Civil Procedure 5 5 governs the entry of defaults and
default judgments. When a plaintiff believes that a defendant
is in default, it must first seek an entry of default under
Rule 55(a). See N.Y. Life Ins. Co. v. Brown, 84 F.3d
137, 141 (5th Cir. 1996). If the Clerk of Court enters a
default, the plaintiff may then seek entry of default
judgment under Rule 55(b). Id. Entry of default
judgment is discretionary; "a party is not entitled to a
default judgment as a matter of right, even where the
defendant is technically in default. In fact, default
judgments are a drastic remedy, not favored by the Federal
Rules and resorted to by courts only in extreme
situations" Lewis v. Lynn, 236 F.3d 766, 767
(5th Cir. 2001) (internal quotation marks and citations
determining whether to enter default judgment against El
Rancho and Pena, the Court must confirm it has jurisdiction
over the parties and the case. A federal district court has
original jurisdiction over all civil actions arising under
the Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. Plaintiff claims this Court has
jurisdiction through federal question under 28 U.S.C. §
1331. See Rec. Doc. 23 ¶ VII. Plaintiff alleges the
Communications Act of 1934 (47 U.S.C. § 605 et seq.}, 18
U.S.C. §§ 2511(1) (a), (5), and 2520(a), and the
Cable and Television Consumer Protection and Competition Act
of 1992 (47 U.S.C. § 553 et seq.) were violated by
Defendants. Rec. Doc. 1 at 2. It follows that the Court has
jurisdiction over this matter. See 28 U.S.C. § 1331.
Plaintiff's alleged claims do not arise under 28 U.S.C.
§ 1331, the Court would obtain jurisdiction through
diversity jurisdiction. See Rec. Doc. 1 at 2. Diversity
jurisdiction exists when all plaintiffs are diverse from all
defendants and the amount in controversy exceeds $75, 000.
See 28 U.S.C. § 1332. Plaintiff is a corporation under
the laws of the State of California with its principal place
of business in California. Rec. Doc. 1. Defendant El Rancho
is a Louisiana limited liability company with its registered
office in Jefferson Parish, Louisiana. See id,
Defendant Pena is a resident and domiciled in Harvey,
Jefferson Parish, Louisiana. Rec. Doc. 23 ¶ IV.
Defendant Martinez is a resident and domiciled in Harvey,
Jefferson Parish, Louisiana. Id. at ¶ V.
Plaintiff asserts the amount in controversy exceeds $75, 000.
Rec. Doc. 1 at 12-13. Therefore, the Court would have
the question of personal jurisdiction must be addressed.
"Serving a summons establishes personal jurisdiction
over a defendant who is subject to the jurisdiction of a
court of general jurisdiction in the state where the district
court is located." Fed.R.Civ.P. 4 (k) (1) (A) . As
previously stated, Defendants are residents and domiciled in
Jefferson Parish, Louisiana. See Rec. Doc. 1; 23. Defendants
are therefore subject to general jurisdiction to the State of
Louisiana. More specifically, the United States District
Court of the Eastern District of Louisiana is the proper
venue for these defendants because "a civil action may
be brought in a judicial district in which any defendant
resides, if all defendants are residents of the State in
which the district is located." 28 U.S.C. §
1391(b)(1). It follows that this Court has personal
jurisdiction over the Defendants.
order for this Court to enter a default judgment it must
confirm that the defendants were properly served. "An
individual may be served ... by leaving a copy of [the
summons and complaint] at the individual's dwelling . . .
with someone of suitable age and discretion who resides there
[, ] or delivering a copy of each to an agent authorized by
appointment or by law to receive service of process."
Fed.R.Civ.P. 4(e)(2). Plaintiff served El Rancho through its
authorized agent, Virgilio Pena, on February 22, 2017. Rec.
Doc. 6. Plaintiff served Defendant Pena at his residence,
leaving the summons with his wife. Rec. Doc. 26. Plaintiff
unsuccessfully executed service upon Defendant Martinez
because his latest address is unknown. Rec. Doc. 25.
Defendants El Rancho and Pena appeared to have received
proper service under Fed.R.Civ.P. 4(e)(2) and are presumably
aware of the pending action. See Rec. Doc. 6; 26.
However, Defendant Martinez has not been served with process
(Rec. Doc. 25) and therefore cannot be held liable or have a
default judgment entered against him. Until Martinez is
properly served, Plaintiff cannot obtain a default judgment
against him. See Broadcast Music, Inc. v. M.T.S.
Enterprises, Inc., 811 F.2d 278, 282 (5th Cir. 1987) .
It follows that El Rancho and Pena can have a default
judgment entered against them if Plaintiff's allegations
are well-pleaded. See Nishimatsu Const. Co., Ltd. v.
Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Plaintiff's motion for default judgment, it argues that
Defendants unlawfully and willfully intercepted, published
and/or broadcasted the "Program" on El Rancho's
premises. See Rec. Doc. 1. Plaintiff asserts that it keeps
accurate records of all entities who purchase a license to
televise an event, and that Defendants did not pay to receive
a license for the Program. Rec. Doc. 29-1. Plaintiff
submitted an affidavit that provides detailed observations of
the Program, El Rancho, and the number of persons present.
See Rec. Doc. 29-7. Plaintiff further alleges that
broadcasting this fight illegally led to the possibility of
increased profits, private financial gain, and commercial
advantage for Defendants. See Rec. Doc. 29-1.
Plaintiff has pled sufficient facts, the Court must still
evaluate whether a default judgment is appropriate. The