United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
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.
following facts are those alleged in the Complaint, ECF No.
1, and unchallenged by the Defendants.
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.
April 27, 2018, J&J filed its Complaint alleging the
Defendants willfully violated 47 U.S.C. §§
and 605. 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.
“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)).
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. The Court must, therefore,
determine the appropriate amount of damages to which J&J
is entitled thereunder.
seeks statutory damages, “enhanced” damages, and
its costs and attorney fees. The Court will address each in
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 ...