United States District Court, D. Nevada
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT [ECF No.
P. GORDON UNITED STATES DISTRICT JUDGE
J&J Sports Productions, Inc. moves for default judgment
against defendant Soken Chea. Chea has not appeared in the
case or opposed the motion for default judgment.
a default judgment under Federal Rule of Civil Procedure 55
is a two-step process. See Eitel v. McCooL 782 F.2d
1470, 1471 (9th Cir. 1986). First, "[w]hen 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 default
is entered, a party may seek entry of default judgment under
entry of default, I take as true the factual allegations in
the non-defaulting party's complaint, except those
related to the amount of damages. Fed.R.Civ.P. 8(b)(6);
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (quotation omitted). Nonetheless,
"[e]ntry of default does not entitle the non-defaulting
party to a default judgment as a matter of right."
Warner Bros. Entm't Inc. v. Caridi, 346
F.Supp.2d 1068, 1071 (CD. Cal. 2004) (citation omitted). The
"general rule [is] that default judgments are ordinarily
disfavored. Cases should be decided upon their merits
whenever reasonably possible." Eitel, 782 F.2d
at 1472 (citing Peno v. Seguros La Comervial, S.A.,
770 F.2d 811, 814 (9th Cir. 1985)). Whether to grant a
default judgment lies within the district court's
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 plaintiffs substantive
claims; (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 Federal Rules of Civil Procedure favoring
decisions on the merits. Eitel, 782 F.2d at 1471-72.
has satisfied the procedural requirements for default
judgment. The clerk has entered default against Chea. ECF No.
10. Chea has not appeared in this case. Thus, there is no
procedural impediment to entering a default judgment.
first Eitel factor considers whether J&J will
suffer prejudice if a default judgment is not entered.
See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d
1172, 1177 (CD. Cal. 2002); Next Gaming, LLC v. Glob.
Gaming Grp., Inc., `&o. 214-CV-00071-MMD-CWH, 2016
WL 3750651, at *3 (D. Nev. July 13, 2016). Chea has failed to
defend the lawsuit. If default judgment is not entered,
J&J will be unable to pursue its claims against Chea.
This factor weighs in favor of entry of default judgment.
second and third Eitel factors favor a default
judgment when the "plaintiff state[s] a claim on which
the plaintiff may recover." Banning v. Lavine,
572 F.2d 1386, 1389 (9th Cir. 1978); see also Fed.
R. Civ. P. 8. J&J's complaint sufficiently pleads
that Chea improperly intercepted and displayed J&J's
showing of the Floyd Mayweather v. Marcos Rene Maidana
championship boxing match on March 3, 2014 (the
"Program"). ECF No. 1. Thus, the second and third
Eitel factors weigh in favor of entry of default
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. § 6O5(e)(3)(C)(i)(II) and (2) $30, 000.00
under 47 U.S.C. § 6O5(e)(3)(C)(ii). These amounts are
justified under the fourth Eitel factor.
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. §
6O5(e)(3)(c)(ii). Thus, the fifth Eitel factor
weighs in favor of entry of default judgment.
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 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
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
THEREFORE ORDERED that the plaintiffs 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, ...