IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DIRECTV, LLC, a California

limited liability company,

Plaintiff,

v.

KIMANH HOANG and LONG TRUONG,

individually and d/b/a

BLUEFIN SUSHI BAR & FINE

JAPANESE RESTAURANT, a/k/a

BLUEFIN SUSHI BAR,

Defendants.

3:13-CV-00712-BR

 

OPINION AND ORDER

MICHAEL A. COX

7420 S.W. Bridgeport Road

Suite 101

Tigard, OR 97224

(503) 443-2100 

WAYNE D. LONSTEIN

80 North Main Street

P.O. Box 351

Ellenville, NY 12428

(845) 647-8500 

Attorneys for Plaintiff

1 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 1 of 14
BROWN, Judge.

This matter comes before the Court on Plaintiff DIRECTV,

LLC's Amended Motion (#18) for Default Judgment. For the reasons

that follow, the Court GRANTS Defendant's Motion and DIRECTS

Plaintiff to submit a form of Judgment that conforms with this

Order no later than November 18, 2013.

BACKGROUND

Plaintiff is a distributor of satellite programming doing

business throughout the United States. Plaintiff provides

interstate direct broadcast satellite programming to subscribers

with specialized satellite-receiving equipment so that

subscribers can watch programs on their televisions and/or listen

to audio programs communicated electronically by Plaintiff via

satellite.

Plaintiff holds proprietary rights to the satellite

programming it transmits and is the owner of and/or a lawfully

designated distribution agent for that satellite programming.

Defendants Kimanh Hong and Long Truong are principals of

Bluefin Sushi Bar & Fine Japanese Restaurant in two separate

locations: 12450 S.E. 82nd Avenue, Happy Valley, OR 97086, and

4138 N.E. Broadway Street, Portland, OR 97232.

In order to combat commercial misuse of Plaintiff's

programming signals, Plaintiff engages investigators and auditors

2 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 2 of 14
who identify establishments that unlawfully show Plaintiff's

residential programming in commercial settings.

On April 5, 2012, at 12:15 p.m., auditor Glen Rust observed

one television set that was showing DIRECTV satellite programming

for public viewing at the Defendants' establishment located at

12450 S.E. 82nd Avenue. Although Rust testifies in his Affidavit

that the fire-code capacity of the establishment at 12450 S.E.

82nd Avenue is 50-100 people, he does not testify as to the

actual number of patrons in the establishment at the time he

observed Plaintiff's programming. Photographs attached to Rust's

Affidavit show approximately five patrons and a number of empty

tables in the establishment. Defendants did not have a

commercial account with Plaintiff for this location. 

Also on April 5, 2012, but at 1:00 p.m., Rust observed two

television sets that were showing DIRECTV satellite programming

for public viewing at the Defendants' establishment located at

4138 N.E. Broadway. Rust testifies in his Affidavit that the

fire-code capacity of the establishment at 4138 N.E. Broadway is

50-100 people, but he does not testify as to the actual number of

patrons in the establishment at the time he observed Plaintiff's

programming. Photographs attached to Rust's Affidavit show one

or possibly two patrons and a number of empty tables in the

establishment. Defendants did not have a commercial account with

Plaintiff for this location. 

3 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 3 of 14
On April 29, 2013, Plaintiff filed a Complaint in this Court

against Defendants alleging Defendants' displays of Plaintiff's

satellite programming for public viewing on April 5, 2012,

violated the Cable Communications Policy Act (CCPA), 47 U.S.C. 

§ 605(e)(3(C) and 18 U.S.C. § 2511 and constituted civil

conversion. Defendants failed to file any responsive pleading

after being properly served by Plaintiff. Accordingly, on 

July 10, 2013, Plaintiff filed a Motion for Entry of Default. On 

July 26, 2013, the Court granted Plaintiff's Motion and entered

an Order of Default in this matter.

On August 6, 2013, Plaintiff filed a Motion for Default

Judgment in which Plaintiff requests statutory damages as to its

claim for violation of § 605 of the CCPA, but Plaintiff did not

address the issue of damages for the alleged violation of 18

U.S.C. § 2511 or damages for civil conversion. As noted,

Defendants are in default and did not file a response.

On September 9, 2013, the Court entered an Order in which it

denied Plaintiff's Motion for Default Judgment on the ground that

Plaintiff did not make any showing of damages as to its claims

for civil conversion and violation of 18 U.S.C. § 2511 and 

did not provide any basis for the Court to enter a partial

judgment. The Court granted Plaintiff leave to file a renewed

motion for default judgment to address the deficiencies set out

in the Court's Order.

4 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 4 of 14
On September 20, 2013, Plaintiff filed a Motion to Dismiss

Count II and Count III of Plaintiff's Complaint. Also on

September 20, 2013, Plaintiff filed an Amended Motion for Default

Judgment in which it seeks entry of default judgment only as to

its claim for violation of § 605 of the CCPA. 

On October 31, 2013, the Court entered an Order granting

Plaintiff's Motion to Dismiss Count II and III of Plaintiff's

Complaint and dismissing Plaintiff's claims for civil conversion

and violation of 18 U.S.C. § 2511 with prejudice and without

costs. 

DISCUSSION

Federal Rule of Civil Procedure 55(b)(2) authorizes the

Court to enter a default judgment after default has been entered

by the Clerk of Court. After the Clerk has entered a default

pursuant to Rule 55(a), the factual allegations of Plaintiff's

Complaint are taken as true and allegations as to damages must be

proven. DirecTV Inc. v. Mina Chau, No. 11cv1821 WQH (BGS), 2012

WL 5967113, at *3 (S.D. Cal. Nov. 27, 2012)(citing TeleVideo

Systems, Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir.

1987)). Thus, Plaintiff's Complaint establishes Defendants

unlawfully showed Plaintiff's residential programming in two

commercial settings on April 5, 2012, in violation of § 605 of

the CCPA. Plaintiff, therefore, is entitled to damages,

5 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 5 of 14
attorneys' fees, and costs.

I. Damages

Under 47 U.S.C. § 605(a) a "person" is prohibited from

intercepting and distributing a television broadcast outside of

"authorized" channels. "'If a plaintiff proves a violation of

section 605(a), a court may award compensatory damages, or, if

the plaintiff requests, between $1,000 and $10,000 in statutory

damages.'" Mina Chau, 2012 WL 5967113, at *4 (quoting Universal

Sports Network, Inc. v. Jimenez, C–02–2768–SC, 2002 WL 31109707,

at *1 (N.D. Cal. Sept. 18, 2002). See also 47 U.S.C. 

§ 605(e)(3)(C)(i)(II). If a person commits a violation

“willfully and for purposes of direct or indirect commercial

advantage or private financial gain, the court in its discretion

may increase the award of damages, whether actual or statutory,

by an amount of not more than $100,000.” 47 U.S.C. 

§ 605(e)(3)(C)(ii).

"The district court has 'wide discretion in determining the

amount of statutory damages to be awarded.'" DIRECTV Inc. v. Le,

267 F. App'x 636 (9th Cir. 2008)(quoting Harris v. Emus Records

Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)). When determining

damages, courts generally evaluate the extent to which a

plaintiff demonstrated a defendant's intent to profit from the

rebroadcast, the extent of the rebroadcast, and the number of

patrons viewing the rebroadcast. See, e.g., Mina Chau, 2012 WL

6 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 6 of 14
5967113, at *4; Jiminez, 2002 WL 31109707, at *2. 

When "'events were broadcast on a single occasion to a small

audience, and plaintiff produces little or no evidence of

financial gain, courts typically have awarded only the $1,000

statutory minimum.'" Id. (quoting Jiminez, 2002 WL 31109707, at

*2). See also Kingvision Pay–Per–View, Ltd. v. Chavez, C 00–2270

CRB, 2000 WL 1847644, at *3 (N.D. Cal. Dec. 11, 2000)("In

accordance with other default judgments involving similar facts,

this Court imposes $1,000 in damages for the second violation. 

For the first violation, however, in which the defendants appear

to have enjoyed a greater and more direct financial gain (because

of both the cover charge and the greater number of patrons), the

Court will assess $1,000 in damages and a $5,000 enhancement.").

Plaintiff alleges in its Complaint that Defendants'

violations were willful and carried out “for purposes of direct

or indirect commercial advantage or private financial gain.” 

Compl. at ¶ 19. Plaintiff seeks statutory damages of 

$10,000 from Hoang and $10,000 from Truong pursuant to 

§ 605(e)(3)(C)(i)(II); enhanced damages from both Defendants "up

to" $100,000 pursuant to § 605(e)(3)(C)(ii); attorneys' fees; and

costs. 

Plaintiff does not allege in its Complaint that Defendants

repeatedly violated § 605 or that Defendants had violated § 605

on prior occasions. Plaintiff also does not allege in its

7 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 7 of 14
Complaint that Defendants set a cover charge for their customers

to view the broadcasts. Moreover, the evidence in the record

does not reflect the number of individuals who viewed the 

April 5, 2012, broadcasts, and, as noted, the photographs of the

broadcasts show between one and five patrons in the

establishments at the time of the broadcasts. 

On this record the Court concludes minimum statutory damages

under 47 U.S.C. § 605 are appropriate and awards Plaintiff

$1,000.00 in statutory damages against Hoang and $1,000 in

statutory damages against Truong. The Court declines to award

Plaintiff enhanced statutory damages against either Defendant

under § 605(e)(3)(C)(ii) because the record does not reflect a

substantive basis to do so.

II. Attorneys' Fees

"The court shall direct the recovery of full costs,

including awarding reasonable attorneys' fees to an aggrieved

party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). 

Plaintiff is the prevailing party in this matter and,

therefore, is entitled to attorneys' fees and costs.

A. Standards

The Supreme Court recently reiterated under federal

fee-shifting statutes such as the CCPA that "the lodestar

approach" is "the guiding light" in determining a reasonable fee. 

Perdue v. Kenny A., 130 S. Ct. 1662, 1671-73 (2010)(internal

8 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 8 of 14
quotation omitted). Under the lodestar method the court first

determines the appropriate hourly rate for the work performed and

then multiplies that amount by the number of hours properly

expended in doing the work. Id. Although "in extraordinary

circumstances" the amount produced by the lodestar calculation

may be increased, "there is a strong presumption that the

lodestar is sufficient." Id. at 1669. The party seeking an

award of fees bears "the burden of documenting the appropriate

hours expended in the litigation, and [is] required to submit

evidence in support of those hours worked." United Steelworkers

of Am. v. Retirement Income Plan For Hourly-rated Emps. Of

Asarco, Inc., 512 F.3d 555, 565 (9th Cir. 2008)(quotations

omitted). When "determining the appropriate number of hours to

be included in a lodestar calculation, the district court should

exclude hours 'that are excessive, redundant, or otherwise

unnecessary.'" McCown v. City of Fontana, 565 F.3d 1097, 1102

(9th Cir. 2009)(quoting Hensley v. Eckerhart, 461 U.S. 424, 434 

(1983)).

To determine the lodestar amount, the court may

consider the following factors: 

(1) the time and labor required; (2) the novelty

and difficulty of the questions involved; (3) the

skill requisite to perform the legal service

properly; (4) the preclusion of other employment

by the attorney due to acceptance of the case; 

(5) the customary fee; (6) whether the fee is

fixed or contingent; (7) any time limitations

imposed by the client or the circumstances; 

9 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 9 of 14
(8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the

attorneys; (10) the undesirability of the case;

(11) the nature and length of the professional

relationship with the client; and (12) awards in

similar cases.

Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997,

1007 n.7 (9th Cir. 2002)(quotation omitted). A rote recitation

of the relevant factors is unnecessary as long as the court

adequately explains the basis for the award of attorneys' fees. 

McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th

Cir. 1995).

The lodestar amount is presumed to be the reasonable

fee, and, therefore, "'a multiplier may be used to adjust the

lodestar amount upward or downward only in rare and exceptional

cases, supported by both specific evidence on the record and

detailed findings by the lower courts.'" Summers v. Carvist

Corp., 323 F. App'x 581, 582 (9th Cir. 2009)(quoting Van Gerwen

v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000)).

 "Adjustments [to the lodestar amount] must be carefully tailored

. . . and [made] only to the extent a factor has not been

subsumed within the lodestar calculation." Rouse v. Law Offices

of Rory Clark, 603 F.3d 699, 704 (9th Cir. 2009)(citing Camacho

v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)).

B. Hourly Rates for Plaintiff's Counsel

Plaintiff requests fees for 6.32 hours of work on this

matter performed by three attorneys: Lonstein, Dawn Conklin, and

10 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 10 of 14
Michael Cox. To determine the reasonable hourly rate this Court

uses the most recent Oregon State Bar Economic Survey published

in 2012 (Oregon 2012 Survey) as its initial benchmark. Attorneys

may argue for higher rates based on inflation, specialty, or any

number of other factors. 

Lonstein had more than 30 years of experience during

the course of this action and requests a rate of $250 per hour. 

According to the Oregon 2012 Survey, Portland attorneys with

Lonstein's level of experience bill on average at a rate of $326

per hour. The Court, therefore, concludes the requested rate of

$250 per hour is a reasonable rate for Lonstein's services.

Conklin had 16 years of experience with five years of

federal-practice experience during the course of this action and

requests a rate of $250 per hour. According to the Oregon 2012

Survey, Portland attorneys with Conklin's level of experience

bill on average at a rate of $256 per hour. The Court,

therefore, concludes the requested rate of $250 per hour is a

reasonable rate for Conklin's services.

Cox had more than ten years of federal-practice

experience during the course of this action and requests a rate

of $250 per hour. According to the Oregon 2012 Survey, Portland

attorneys with Cox's level of experience bill on average at a

rate of $280 per hour. The 75th percentile of Portland attorneys

with his level of experience bill at an average hourly rate of

11 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 11 of 14
$300. Cox has established his work in this matter is more

similar to attorneys in the 75th percentile. The Court,

therefore, concludes the requested rate of $250 per hour is a

reasonable rate for Cox's services.

C. Paralegal hours.

Plaintiff requests 4.6 hours of paralegal time at $95

per hour. Plaintiff points to a number of cases in which courts

have held $75 is a reasonable rate for paralegal work on cases

similar to this matter. Plaintiff does not point to any evidence

to support a rate higher than $75 for paralegal work on cases

such as this one. Accordingly, the Court reduces the rate for

paralegal work to $75 per hour.

In summary the Court awards attorneys' fees to Plaintiff in

the amount of $1,925.00.

III. Costs

Plaintiff seeks costs in the amount of $750 comprised of the

fee to file this action and the cost to serve the summons and

Complaint on Defendants.

A. Standards

Absent a showing of circumstances not relevant here, an

award of costs is governed by federal law. See Champion Produce,

Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir.

2003).

28 U.S.C. § 1920 allows a federal court to tax specific

12 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 12 of 14
items as costs against a losing party pursuant to Federal Rule of

Civil Procedure 54(d)(1). Section 1920 provides:

A judge or clerk of any court of the United States

may tax as costs the following:

(1) Fees of the clerk and marshal; 

(2) Fees of the court reporter for all or any part

of the stenographic transcript necessarily

obtained for use in the case; 

(3)Fees and disbursements for printing and

witnesses; 

(4)Fees for exemplification and copies of papers

necessarily obtained for use in the case; 

(5)Docket fees under section 1923 of this title; 

(6)Compensation for court-appointed experts,

compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation

services under § 1828 of this title.

 

A bill of costs shall be filed in the case and,

upon allowance, included in the judgment or

decree.

As noted, costs generally are awarded to the prevailing

party in a civil action as a matter of course unless the court

directs otherwise. Fed. R. Civ. P. 54(d). The court must limit

an award of costs to those defined in 28 U.S.C. § 1920 unless

otherwise provided for by statute. Grove v. Wells Fargo Fin.

Ca., Inc., 606 F.3d 577, 579-80 (9th Cir. 2010). See also

Haagen-Dazs Co., Inc. v. Double Rainbow Gourmet Ice Creams, Inc.,

920 F.2d 587, 588 (9th Cir. 1990)(citing Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)). 

B. Analysis

Plaintiff seeks $350 for the cost of filing this

action. The cost of filing an action is specifically allowed

13 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 13 of 14
under § 1920. Accordingly, the Court awards Plaintiff $350 for

filing fees.

Plaintiff seeks $400 for process service. The Ninth

Circuit has concluded the costs for private service of process

are taxable costs under § 1920(1). The Court, therefore, awards

Plaintiff $400 for the cost of process service. 

Accordingly, the Court awards costs to Plaintiff in the

amount of $750.00.

CONCLUSION

For these reasons, the Court GRANTS Plaintiff's Amended

Motion (#18) for Default Judgment, AWARDS Plaintiff damages in

the amount of $1,000 against Defendant Huong and $1,000 against

Defendant Truong, AWARDS attorneys' fees to Plaintiff in the

amount of $1,925.00 and costs in the amount of $750.00, and

DIRECTS Plaintiff to submit a form of Judgment that conforms with

this Order no later than November 18, 2013.

IT IS SO ORDERED.

DATED this 4th day of November, 2013.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

14 - OPINION AND ORDER

Case 3:13-cv-00712-BR Document 25 Filed 11/04/13 Page 14 of 14