United States District Court, Eastern District of Pennsylvania
September 24, 2014
J & J SPORTS PRODUCTIONS, INC., Plaintiff,
MANUEL E. JAQUEZ, Individually and d/b/a 5 Iris, and 3651 JAQUEZ ENTERPRISES, INC., an unknown business entity d/b/a 5 Iris, Defendants.
Hon. Jan E. DuBois, Judge
AND NOW, this 24th day of September, 2014, upon consideration of plaintiff’s Notice of Application and Application for Default Judgment by the Court (“Application for Default Judgment”) (Document No. 7, filed April 28, 2014) and its attachments; and Fed.R.Evid. 902(11) Affidavit of Plaintiff (Document No. 8, filed May 2, 2014), it appearing that defendants have been duly served with process and have failed to appear or otherwise defend, and that defaults have been entered against them, IT IS ORDERED that plaintiff’s Application for Default Judgment is GRANTED and JUDGMENT IS ENTERED in FAVOR of plaintiff, J&J Sports Productions, Inc., and AGAINST defendants, Manuel E. Jaquez, individually and d/b/a 5 Iris, and 3651 Jaquez Enterprises, Inc., an unknown business entity d/b/a 5 Iris, in the total amount of $10, 000.00, comprising $7, 500.00 in statutory damages and $2, 500.00 in enhanced damages pursuant to 47 U.S.C. § 605.
IT IS FURTHER ORDERED that the Clerk of Court shall MARK this case CLOSED.
Plaintiff, J&J Sports Productions, Inc., is an international distributor of sports and entertainment programming that held the domestic commercial exhibition rights to broadcast a championship boxing match between Miguel Angel Cotto and Antonio Margarito that took place on December 3, 2011. Any domestic commercial establishment wanting to legally broadcast the boxing match was required to enter into a sublicensing agreement with plaintiff.
Plaintiff alleges that defendants, Manuel E. Jaquez and 3651 Jaquez Enterprises, Inc., — neither of which had a sublicensing agreement with plaintiff — unlawfully intercepted and exhibited the Cotto-Margarito boxing match at a bar named 5 Iris, located at 3651 N. 5th Street in Philadelphia, Pennsylvania. Plaintiff’s Complaint alleges three counts: (1) violation of 47 U.S.C. § 553 (unauthorized intercepting, receiving, or assisting in receiving any communication over a cable system); (2) violation of 47 U.S.C. § 605 (unauthorized interception of radio or satellite communications); and (3) conversion under California law.
Defendants were duly served with process and failed to answer or otherwise respond to plaintiff’s Complaint. Thereafter, on March 21, 2014, the Clerk of Court entered defaults against defendants at plaintiff’s request. Presently before the Court is plaintiff’s Application for Default Judgment.
2. GRANTING OF MOTION FOR DEFAULT JUDGMENT
“Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant’s delay is due to culpable conduct.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). With respect to the first factor, if a motion for default judgment is denied, plaintiff will be prejudiced by its inability to recover damages for defendants’ unlawful interception and exhibition of the Cotto-Margarito boxing match. With respect to the second and third factors, the fact that defendants have wholly failed to respond after having been duly served with process in this case leads the Court to conclude that defendants do not have a litigable defense and that their failure to respond is due to their culpable conduct. The Court thus concludes that all three of the Chamberlain factors weigh in favor of entering a default judgment. For all such reasons, plaintiff’s Application for Default Judgment is granted.
3. PLAINTIFF’S ENTITLEMENT TO DAMAGES
Having concluded that a default judgment should be entered in favor of plaintiff, the Court next considers whether to award plaintiff damages and, if so, in what amount. At the outset, the Court notes that defendants’ default is deemed as an admission of all facts alleged in the Complaint, except those relating to damages. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). Thus, defendants have admitted that they unlawfully intercepted and exhibited the Cotto-Margarito boxing match. Although plaintiff is unable to identify the precise means by which defendants did so, i.e. whether it was done via cable or satellite transmission, the Court adopts the view that this is not a bar to plaintiff’s ability to recover damages in this case. Accordingly, the question now before the Court is the amount of damages to award plaintiff. The Court makes this determination on the present state of the record.
4. ASSESSMENT OF DAMAGES
47 U.S.C. § 605 prohibits the interception and transmission of encrypted radio or satellite communications. Pursuant to this statute, an aggrieved party can elect to recover either actual damages or statutory damages for each violation “in a sum of not less than $1, 000 or more than $10, 000, as the [C]ourt considers just.” 47 U.S.C. § 605(e)(3)(C)(i)(II). In addition to actual or statutory damages, § 605 gives the Court discretion to award enhanced damages of not more than $100, 000 “[i]n any case in which the [C]ourt finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain.” Id. § 605(e)(3)(C)(ii).
Plaintiff seeks a total award of $111, 200.00 in damages in this case. Of that sum, $10, 000.00 covers statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II) and $100, 000.00 covers enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff also seeks $1, 200.00 for the tort of conversion under California law. Plaintiff does not seek to recover attorney’s fees or costs.
A private investigator hired by plaintiff, Dustin Villardo, observed the Cotto-Margarito boxing match being played on three flat-screen television sets in defendants’ bar, 5 Iris. Villardo noted that the capacity of 5 Iris was approximately 150 people, and he personally observed between 72–73 patrons who were inside of the bar watching the fight. (Appl. Default J., Decl. of Affiant.) Although a cover charge was not required to enter 5 Iris that evening, patrons purchased food and/or drink while they were inside. (Fed. R. Evid. 902(11) Aff. of Pl. ¶ 11.) Because plaintiff possessed the domestic commercial;exhibition rights to broadcast the Cotto-Margarito fight, defendants could only have broadcast the fight legally had they purchased the program from plaintiff at a cost $1, 200.00, which they did not do in this case. (Id. ¶ 8.)
Based on the foregoing, the Court concludes that plaintiff is entitled to statutory damages under § 605. Plaintiff does not seek actual damages under that statute. The Court further concludes that plaintiff is entitled to enhanced damages because defendants’ unlawful interception and exhibition of the fight was done “willfully and for purposes of direct or indirect commercial advantage or private financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). On this issue, the Court finds that, as a result of the unlawful interception and exhibition of the Cotto-Margarito fight, defendants benefited from increased food and drink sales and thus obtained a direct or indirect commercial advantage or private financial gain.
Based on all of the evidence presented, and after surveying cases in this District awarding damages for violations of §§ 553 and 605 in the default judgment context, the Court finds that an award of $7, 500.00 in statutory damages and $2, 500.00 in enhanced damages is appropriate. This award is proportionate to those imposed in this District,  and is sufficient to compensate plaintiff and to deter similar misconduct in the future.
The Court declines to award additional damages for the tort of conversion. See J & J Sports Prods., Inc. v. Moody, No. 08-CV-5225, 2009 WL 1515749, at *2 (E.D. Pa. May 28, 2009) (“As to plaintiff’s claim for conversion, we find that these damage[s] are not appropriate given the statutory damages awarded under Title 47.”).