J & J Sports Productions, Inc. v. Brown et al

Filing 27

OPINION. Signed by Honorable Judge Myron H. Thompson on 12/30/2011. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
TUCKER BRANTLEY BROWN,
individually and d/b/a
Touchdown’s Pub N Eatery;
and TOUCHDOWN’S PUB N EATERY,
INC. d/b/a Touchdown’s Pub N
Eatery,
Defendants.

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CIVIL ACTION NO.
3:10cv1030-MHT
(WO)

OPINION
Plaintiff J & J Sports Productions, Inc. filed this
lawsuit against defendants Tucker Brantley Brown and
Touchdown’s Pub N Eatery, Inc. asserting violations of 47
U.S.C. § 605, which prohibits the unauthorized use of
communications

(including

satellite

signals),

and

47

U.S.C. § 553, which prohibits the unauthorized reception
of cable services.

J & J Sports also asserts a state-law

claim of conversion.

Jurisdiction is proper under 28

U.S.C. §§ 1331 & 1367 (federal question and supplemental).
The matter is now before the court on J & J Sports’
motion

for

default

judgment.

For

the

reasons

that

follow, the motion will be granted in the sum of $ 4,200.

I.

Background

J & J Sports, a commercial distributor of televised
sporting

events,

owned

the

exclusive

nationwide

distribution rights to “The Dream Match”: Oscar De La
Hoya v. Manny Pacquiao, Welterweight Championship Fight
Program,

broadcast

on

closed-circuit

Saturday, December 6, 2008.

television

on

J & J Sports claims that the

program was shown by the defendants at Touchdown’s Pub N
Eatery in Auburn, Alabama.

The bar had not paid for the

right to televise the event.

Because the defendants

failed to respond to this lawsuit, J & J Sports filed a
motion for entry of default, which this court granted on
October 31, 2011.

2

J & J Sports has now filed a motion for default
judgment.

Initially, J & J Sports merely restated the

counts alleged in the complaint and requested the maximum
statutory damages on count one (§ 605) and count two
(§ 553).

Although seeking the maximum statutory damages

for the unauthorized broadcast of two distinct modes of
communication,

the

motion

was

unaccompanied

by

any

affidavit establishing a factual basis upon which the
court could make a determination of damages.
Sports

declined

to

seek

damages

on

the

J & J

state-law

conversion claim.
Because of these deficiencies, the court could not
award statutory damages. “[J]udgment of default awarding
cash damages c[an] not properly be entered without a
hearing unless the amount claimed is a liquidated sum or
one capable of mathematical calculation.

Damages may be

awarded only if the record adequately reflects the basis
for award via a hearing or a demonstration by detailed
affidavits establishing the necessary facts.”

3

Adolph

Coors Co. v. Movement Against Racism and the Klan, 777
F.2d 1538, 1543-44 (11th Cir. 1985) (internal quotation
marks and citations omitted).
The

court,

therefore,

held

an

on-the-record

conference call with J & J Sports’ counsel and explained
that a detailed affidavit was necessary to establish
statutory damages.

The court also noted that it was

highly unlikely that a single bar would pirate satellite
and cable broadcasts of the same boxing match. See J & J
Sports Prods., Inc. v. Blackwell, 2009 WL 2171897, *2
(M.D. Ala. July 21, 2009) (Thompson, J.) (collecting
cases).

The court requested proof of which type of

broadcast was shown in Touchdown’s Pub N Eatery so as to
determine the appropriate statutory scheme for awarding
damages.
J & J Sports’ counsel has now filed an affidavit
stating that (1) the bar’s seating capacity is between
101-200 people and (2) that the defendants would have
paid a $ 4,200 fee to J & J Sports to purchase lawfully

4

the fight.

The affidavit is accompanied by a flier with

a table of expenses for “The Dream Match” broadcast.

The

table of expenses demonstrates that the fee charged to a
bar with a seating capacity between 101 and 200 people
was $ 4,200.

With this additional information, the court

is now able to calculate a damages award without a
hearing.

II.

Discussion

Despite instructions from the court, J & J Sports has
not

provided

sufficient

information

as

to

whether

Touchdown’s Pub N Eatery pirated a satellite or cable
broadcast of the fight.

While J & J Sports’ counsel

stated during the on-the-record conference call that the
bar used a satellite dish, there is no evidence in the
record to establish this fact.
on this crucial question.

The affidavit is silent

The accompanying flier is

ambiguous as to whether the fight would be purchased by
satellite or cable.

The court finds that, “[b]ecause a

5

cable box is more easily hidden than a satellite dish, it
seems more likely that the defendants violated § 553.”
Id.

The court, therefore, will award damages solely on

count two.
Regardless of whether the defendants violated § 605
(satellite) or § 553 (cable), the damages award would be
the same.

The statutory minimum for a violation of § 605

is $ 2,000, 47 U.S.C. § 605(e)(1), and the statutory
minimum for a violation of § 553 is $ 1,000, 47 U.S.C.
§ 553(b)(1).

The “burden is on [the plaintiff] to

provide justification for why damages in excess of the
DIRECTV, Inc. v. Huynh, 318

minimum should be awarded.”

F. Supp. 2d 1122, 1131-32 (M.D. Ala. 2004) (Thompson,
J.).
Here, the affidavit and flier establish that the
defendants would have paid a $ 4,200 fee for broadcasting
the fight.
award.

This is the starting point for any damages

Although J & J Sports initially requested the

statutory maximum, its counsel’s statements during the

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on-the-record conference call and the affidavit make
clear that it now seeks only compensatory damages.

As

such, the court sees no need to award the statutory
maximum damages.

Cf. J & J Sports Prods., Inc. v.

Guzman, 2009 WL 1034218, *3 (N.D. Cal. Apr. 16, 2009)
(Patel, J.) (noting that in the “absence of unusual or
particularly

egregious

circumstances

under

which

a

defendant broadcast the fight, maximum statutory damages
are inappropriate”) (internal quotation marks omitted).
*

*

*

For the reasons stated above, the court will award
J & J Sports damages for only count two and only in the
amount

of

$

4,200.

The

court

requests for monetary relief.

will

deny

all

other

An appropriate judgment

will be entered.
DONE, this the 30th day of December, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE