United States District Court, E.D. Pennsylvania
J & J SPORTS PRODUCTIONS, INC.
RAHIM HENDERSON, et al.
R. SANCHEZ, C.J.
J & J Sports Productions, Inc. (J & J) moves pursuant
to Federal Rule of Civil Procedure 59(e) to alter or amend a
default judgment entered against Defendants Rahim Henderson,
individually and d/b/a Atmosphere Bar & Lounge, LLC, and
Atmosphere Bar & Lounge, LLC (Atmosphere) on August 28,
2019. The default judgment awarded J & J damages for
Defendants' violation of the Cable Communications Policy
Act of 1934, 47 U.S.C. § 605, in the total amount of
$15, 900, and held Henderson jointly and severally liable for
$3, 000 of the award. J & J asks this Court to increase
the damages award and to hold Henderson individually liable
for the entire award, arguing these changes are necessary to
correct clear errors of law in the original default judgment.
For the reasons stated below, the Court will deny J &
J's motion. However, because upon further review, it
appears the Court improperly held Henderson individually
liable, the Court will alter its August 28, 2019, judgment to
reflect that Henderson is not individually liable for any
portion of the damages award.
J sued Defendants for intercepting and broadcasting at
Atmosphere a professional boxing match (the Program) to which
J & J owned the exclusive rights, alleging
Defendants' conduct violated the Cable Communications
Policy Act. After Defendants failed to respond to the
Complaint, J & J obtained entry of their
defaults and filed an application for default judgment. On
August 28, 2019, after a default judgment hearing, this Court
entered an Order granting J & J's application and
entering a default judgment against Defendants. See
Order, Aug. 28, 2019, RCF No. 23. The Order awarded J & J
$15, 900 in damages, comprised of $3, 975 in statutory
damages and $11, 925 in enhanced damages. The Order also
provided Henderson was jointly and severally liable for $3,
000 of the award-the amount of the licensing fee Defendants
would have had to pay to show the Program lawfully.
J thereafter filed the instant motion to alter or amend
judgment pursuant to Federal Rule of Civil Procedure 59(e) on
September 26, 2019. J & J argues relief is warranted
because the Court committed clear error by (1) calculating
statutory damages as an "estimation of actual
damages" and (2) holding Henderson jointly and severally
liable for only $3, 000 of the damages award. J & J asks
the Court to amend its August 28, 2019, Order to increase the
award of statutory damages to $10, 000 and to hold Henderson
jointly and severally liable for the entire award.
moving to alter or amend a judgment pursuant to Federal Rule
of Civil Procedure 59(e) must demonstrate one of three
grounds: "(1) an intervening change in the controlling
law; (2) the availability of new evidence not available
previously; or (3) the need to correct clear error of law or
prevent manifest injustice." N. River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)
(internal quotation marks and citations omitted). In this
case, J & J invokes the third ground, arguing it has
established this Court committed clear error in calculating
statutory damages and determining the extent of
Henderson's individual liability. "A finding of
clear error requires a definite and firm conviction that a
mistake has been committed." United States v.
Jasin, 292 F.Supp.2d 670, 676 (E.D. Pa. 2003) (citations
and quotation marks omitted).
threshold matter, Rule 59(e) motions are granted sparingly,
and they cannot be used merely to have a court "rethink
a decision already made." Jarzyna v. Home
Properties, L.P., 185 F.Supp.3d 612, 622 (E.D. Pa. 2016)
(citations omitted). Many of the arguments J & J makes in
this motion are identical to arguments made in its
application for default judgment. See generally App.
for Default J., ECF No. 14-1. The Court considered those
arguments in ruling on J & J's application for
default judgment but found them unpersuasive. Because
however, the Court did not specifically address J &
J's arguments in its August 28, 2019, Memorandum, the
Court will discuss those arguments herein.
J first argues the Court committed clear error in calculating
statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II).
Under § 605(e)(3)(c)(i), a plaintiff may elect to have
damages calculated under one of two provisions-the actual
damages provision or the statutory damages provision. The
actual damages provision permits a plaintiff to "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." 47 U.S.C.
§ 605(e)(3)(C)(i)(I). In determining profits under the
actual damages provision, the plaintiff is required to prove
the violator's gross revenue, and the violator is
required to prove any deductible expenses and any profit not
attributable to the violation. See id.
statutory damages provision, in contrast, permits a plaintiff
to "recover an award of statutory damages for each
violation ... in a sum of not less than $1, 000 or more than
$10, 000, as the court considers just." Id.
§ 605(e)(3)(C)(i)(II). Unlike the actual damages
provision, the statutory damages provision is silent as to
how the amount of statutory damages is to be determined.
See Id. The statutory damages provision gives the
Court discretion to award the amount it "considers
just." See id.
the Third Circuit has not addressed the issue, most of the
district courts within the Third Circuit, including this
Court, have concluded that statutory damages are merely an
alternative to actual damages, and as such, should be
determined by estimating, rather than calculating, actual
damages for a violation. See, e.g., J& J Sports
Prods., Inc. v. Cruz, No. 14-2496, 2015 WL 2376051, at
*4-5 (E.D. Pa. May 18, 2015); Joe Hand Promotions, Inc.
v. Yakubets, 3 F.Supp.3d 261, 274 (E.D. Pa. 2014)
(estimating actual damages to award statutory damages under
similar provision 47 U.S.C. § 553); J & J Sports
Prods., Inc. v. Tibiri-Tabara, LLC, No. 18-8819, 2019 WL
3402494, at *4 (D.N.J. July 26, 2019) ("[A]n award of
statutory damages pursuant to § 605 should approximate
actual damages."); Joe Hand Promotions, Inc. v.
Tickle, No. 12-1874, 2016 WL 393797, at *6-7 (M.D. Pa.
Feb. 2, 2016) (applying Yakubets approach to award
statutory damages under 47 U.S.C. § 553); Kingvision
Pay-Per-View, LTD. v. Lardo, No. 10-0059, 2010 WL
3463316, at *3 (W.D. Pa. Sept. 1, 2010) (awarding a flat sum
for a violation to compensate plaintiff for licensing fee and
defendants' estimated profits). This method typically
results in a damages award that includes the cost to license
the show legally and an estimate of the defendant's
profits from the violation. See Yakubets, 3
F.Supp.3d at 282.
calculating statutory damages in this case, the Court
followed the widely accepted approach of estimating actual
damages and Defendants' profits from the violation. As a
result, the Court awarded J & J statutory damages of $3,
000 for the fee Defendants would have paid to broadcast the
Program lawfully. The Court awarded J & J an additional
$975 in statutory damages by estimating Defendants'
profits. Finally, the Court awarded enhanced
damages by applying a multiplier of three because the
violation was made for the purpose of commercial advantage.
The Court entered judgment against Defendants for a total of
& J's first claim, J & J makes four arguments
regarding the Court's damages award. J & J first
argues the Court's estimation of actual damages under the
statutory damages provision of 47 U.S.C. § 605 is a
clear error of law because it conflates the provision with
the actual damages provision in § 605, rendering the
statutory damages provision superfluous. Second, J & J
argues the Court's consideration of Defendants'
profits in the context of statutory damages was a clear error
of law because the statutory damages provision does not
mention profits. Third, J & J argues the Court committed
clear error by improperly placing the entire burden on the
plaintiff to establish profits under the statutory damages
provision even though the actual damages provision does not
require as much. Finally, even if the Court's estimation
of actual damages is correct, any estimation of actual
damages is not per se only the licensing fee for broadcasting
the Program legally. The Court addresses each argument in
J first argues the Court's methodology conflates the
actual damages and statutory damages provisions because the
estimation of actual damages under the statutory
damages provision and the computation of damages under the
actual damages provision are "effectively the
same." Mot. to Alter J. 10-11. J & J argues Congress
"would not have bothered to make separate provisions for
actual and statutory damages if statutory ...