J & J Sports Productions Incorporated v. Diaz et al

Filing 15

ORDER granting 14 plaintiff's motion for default judgment. Judgment is entered for plaintiff J & J Sports Productions, Inc. and against defendant Jose Diaz, individually and dba Tacos Y Mariscos El Kora, and defendant Tacos Y Mariscos El Kora LLC in the total amount of $30,001. The Clerk shall enter judgment. Signed by Judge Frederick J Martone on 4/4/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Jose Diaz, individually and dba Tacos Y)
Mariscos El Kora; Tacos Y Mariscos El)
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Kora LLC,
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Defendants.
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J & J Sports Productions Inc.,

CV 11-02224-PHX-FJM
ORDER

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The court has before it plaintiff's motion for default judgment (doc. 14). When

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considering a motion for default judgment we take a complaint's well-pled allegations of

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liability as true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Plaintiff

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was granted the exclusive nationwide television distribution rights to the "'Firepower': Manny

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Pacquaio v. Miguel Cotto, WBO Welterweight Championship Fight Program" ("the

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Program"), which aired on November 14, 2009. Tacos Y Mariscos El Kora ("Tacos Y

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Mariscos") is a restaurant located in Phoenix, Arizona. On November 14, 2009, the

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restaurant was displaying the Program on a number of television screens.1 Although the

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An affidavit of an investigator who visited Tacos Y Mariscos on November 14, 2009
contains conflicting information concerning the number of televisions. The investigator
states that he "observed four (6) televisions located inside" the restaurant. Mot., ex. 3 at 2.
He describes the locations and characteristics of five televisions: "2 - 20" flat screen sets,"

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total capacity of Tacos Y Mariscos is seventy-five to eighty people, on that day three separate

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head counts revealed that at least 150 patrons were present. Tacos Y Mariscos did not obtain

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a license from plaintiff to broadcast the Program, and did not require patrons to pay a cover

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charge. Plaintiff filed this action in November 2011 seeking relief under three counts: (1)

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violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; and (3) conversion. Entry of

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default was entered by the Clerk against defendants on January 26, 2012 (doc. 13).

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Defendants have not moved to set aside default and have not otherwise appeared.

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To establish a violation of 47 U.S.C. § 605, plaintiff must show (1) defendants

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intercepted and (2) "divulged or published. . . a communication transmitted by" plaintiff.

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Nat'l Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). Section 605

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applies to satellite television signals. DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir.

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2008). Under the statute, plaintiff can recover statutory damages "in a sum of not less than

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$1,000 or more than $10,000" for each violation.

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Additionally, if the court "finds that the violation was committed willfully and for purposes

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of direct or indirect commercial advantage or private financial gain," it may exercise

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discretion and increase the damages award by up to $100,000 per violation.

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605(e)(3)(C)(ii). By defaulting, defendants admit that they published the Program to their

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patrons without obtaining a license from plaintiff in violation of 47 U.S.C. § 605, and did so

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"willfully and for purposes of direct or indirect commercial advantage or private financial

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gain." Compl. at ¶ 12 (doc. 1).2

47 U.S.C. § 605(e)(3)(C)(i)(II).

Id. §

See Combs, 285 F.3d at 906.

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Plaintiff asks that we award the maximum in statutory damages under § 605 and

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increase the award by the maximum amount, for a total award of $110,000. Defendants

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showed the Program on multiple televisions in a restaurant located in an urban setting that

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a "32" regular television," a "third 20" flat screen," and "a large 42" flat screen." Id.
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Plaintiff's complaint also sought relief pursuant to 47 U.S.C. § 553. Plaintiff states
that it cannot determine what type of signal transmission defendants used, and asks for
recovery under § 605.
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was packed to approximately twice its capacity. Defendants showed the program without

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permission willfully and for commercial gain. Based on these facts, we agree that plaintiff

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is entitled to the maximum statutory damages award of $10,000.

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The evidence does not support, however, enhancing the damage award by the

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maximum permitted. Here, there is no evidence of repeated violations by defendants, no

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evidence that defendants advertised the Program to draw additional crowds, and no evidence

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that defendants charged extra for food and drinks. Defendants did not charge a cover for

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entry. See Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F. Supp. 2d 1179, 1185 (D.

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Colo. 2008) (discussing these factors as reducing the size of an enhanced damages award).

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However, we are mindful of the deterrent effect that a substantial award can have on

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preventing future violations. We find based on the facts of this case that an enhanced

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damages award of $20,000 is reasonable. The total damages award of $30,000 will not only

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compensate plaintiff, but is substantial enough to deter future violations.

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Plaintiff also asks for an award of $2,200 for conversion. Under Arizona law, "the

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measure of conversion damages includes not only the value of the property taken, but also

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other damage suffered because of the wrongful detention or deprivation of the property."

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Collins v. First Fin. Servs., Inc., 168 Ariz. 484, 486, 815 P.2d 411, 413 (Ct. App. 1991). If

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actual damages are not proven, only an award of nominal damages can be made. SWC

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Baseline & Crimson Investors, LLC v. Augusta Ranch LP, 228 Ariz. 271, __, 265 P.3d 1070,

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1092 (Ct. App. 2011). Plaintiff argues that it charges a commercial license fee of $2,200 for

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businesses the size of Tacos Y Mariscos. It did not, however, include any factual support for

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this assertion, and it is not pled in the complaint.3 Accordingly, we award nominal damages

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in the amount of $1 for the conversion claim.
Finally, plaintiff requests an award of its costs and attorneys' fees. Plaintiff may file

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Although plaintiff refers us to plaintiff's affidavit attached as Exhibit 1, see Mot. at
14 n.5, we were not provided with a copy of an affidavit from plaintiff. The only affidavits
attached are from plaintiff's counsel and the investigator. Nether of these affidavits confirm
the licensing fee.
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a bill of costs in accordance with LRCiv 54.1, and a motion for attorneys' fees pursuant to

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LRCiv 54.2. We will rule on a motion for attorneys' fees if and when one is before us.

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IT IS ORDERED GRANTING plaintiff's motion for default judgment (doc. 14).

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Judgment is entered for plaintiff J & J Sports Productions, Inc. and against defendant Jose

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Diaz, individually and dba Tacos Y Mariscos El Kora, and defendant Tacos Y Mariscos El

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Kora LLC in the total amount of $30,001. The Clerk shall enter judgment.

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DATED this 4th day of April, 2012.

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