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J & J Sports Productions, Inc. v. Palomares

United States District Court, D. Nebraska

October 15, 2018

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
JOSE M. PALOMARES and TERESA C. PALOMARES, individually and d/b/a PALETERIA Y RESTAURANT SAN LUIS a/k/a RESTAURANT SAN LUIS, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Motion for Default Judgment, ECF No. 14, filed by Plaintiff J & J Sports Productions, Inc. (J&J). For the reasons stated below, the Motion will be granted.

         BACKGROUND

         The following facts are those alleged in the Complaint, ECF No. 1, and unchallenged by the Defendants.

         On April 23, 2015, J&J entered into a contract with Mayweather Promotions, LLC, and Top Rank, Inc., for the exclusive commercial, closed-circuit distribution rights to “‘The Fight of the Century' Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program” (the Program) in the United States on May 2, 2015. J&J then contractually sublicensed the right to exhibit the Program publicly to various commercial establishments throughout the United States. On May 2, 2015, the day the Program aired live on television, Defendants Jose and Teresa Palomares intercepted and broadcasted, or directed or permitted their employees to intercept and broadcast, the Program at their restaurant, Paleteria y Restaurant San Luis a/k/a Restaurant San Luis (the Restaurant). Attached to the Complaint is an affidavit wherein the affiant states he observed a portion of the Program being televised at the Restaurant. ECF No. 14-3, Page ID 57.

         On April 27, 2018, J&J filed its Complaint alleging the Defendants willfully violated 47 U.S.C. §§ 553[1] and 605[2]. The Defendants did not answer or otherwise respond to the Complaint and on July 26, 2018, the Clerk entered default against the Defendants under Fed.R.Civ.P. 55(a). Under Fed.R.Civ.P. 55(b), J&J moved for default judgment requesting damages in the amount of $60, 000, plus costs and attorney fees.

         DISCUSSION

         It is “appropriate for a district court to enter a default judgment when a party fails to appropriately respond in a timely manner.” Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010) (citing Inman v. Am Home Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997)). “[W]hen a default judgment is entered, facts alleged in the complaint may not be later contested.” Marshall, 616 F.3d at 852 (citing Thomson v. Wooster, 114 U.S. 104 (1885)). It is, however, “incumbent upon the district court to ensure that ‘the unchallenged facts constitute a legitimate cause of action' prior to entering final judgment.” Marshall, 616 F.3d at 852-53 (quoting Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010)).

         J&J's Complaint asserted claims under both 47 U.S.C. §§ 553 and 605, alternatively, but its Motion seeks a default judgment and damages under § 605 exclusively. See Joe Hand Promotions, Inc. v. Peterson, No. 8:12CV241, 2014 WL 824119, *4 (D. Neb. March 3, 2014) (explaining § 553 applies to cable transmissions, § 605 applies to radio and satellite transmissions, and that the two sections are mutually exclusive for purposes of recovery). According to the unchallenged facts, Defendants displayed the Program via satellite television in the Restaurant on May 2, 2015, without authorization or approval from J&J, and they personally supervised, controlled, and financially benefitted from the Restaurant. Joe Hand Promotions, Inc. v. Moore, No. 4:15-cv-4082, 2017 WL 741009, at *2 (W.D. Ark. Feb. 24, 2017) (citing Joe Hand Promotions, Inc. v. Shepard, No. 4:12CV1728 SNLJ, 2015 WL 1976342, at *8 (E.D. Mo. April 30, 2015) (explaining that to prove a § 605 violation, plaintiffs must show that the event or program at issue was exhibited in the defendant's establishment without authorization); See Comcast of Illinois X v. Multi-Vision Elecs., Inc., 491 F.3d 938, 947 (8th Cir. 2007) (discussing an individual's personal liability under § 553). As such, the Court finds that the unchallenged facts constitute a legitimate cause of action under 47 U.S.C. § 605.[3] The Court must, therefore, determine the appropriate amount of damages to which J&J is entitled thereunder.

         J&J seeks statutory damages, “enhanced” damages, and its costs and attorney fees. The Court will address each in turn.

         I. Statutory Damages

         Section 605(e)(3)(C)(i) provides:

Damages awarded by any court under this section shall be computed, at the election of the aggrieved party, in accordance with either of the following subclauses;
(I) the party aggrieved may recover the actual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his ...

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