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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Jose Diaz, individually and dba Tacos Y) Mariscos El Kora; Tacos Y Mariscos El) ) Kora LLC, ) ) Defendants. ) ) J & J Sports Productions Inc., CV 11-02224-PHX-FJM ORDER 16 17 The court has before it plaintiff's motion for default judgment (doc. 14). When 18 considering a motion for default judgment we take a complaint's well-pled allegations of 19 liability as true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Plaintiff 20 was granted the exclusive nationwide television distribution rights to the "'Firepower': Manny 21 Pacquaio v. Miguel Cotto, WBO Welterweight Championship Fight Program" ("the 22 Program"), which aired on November 14, 2009. Tacos Y Mariscos El Kora ("Tacos Y 23 Mariscos") is a restaurant located in Phoenix, Arizona. On November 14, 2009, the 24 restaurant was displaying the Program on a number of television screens.1 Although the 25 26 27 28 1 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," 1 total capacity of Tacos Y Mariscos is seventy-five to eighty people, on that day three separate 2 head counts revealed that at least 150 patrons were present. Tacos Y Mariscos did not obtain 3 a license from plaintiff to broadcast the Program, and did not require patrons to pay a cover 4 charge. Plaintiff filed this action in November 2011 seeking relief under three counts: (1) 5 violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; and (3) conversion. Entry of 6 default was entered by the Clerk against defendants on January 26, 2012 (doc. 13). 7 Defendants have not moved to set aside default and have not otherwise appeared. 8 To establish a violation of 47 U.S.C. § 605, plaintiff must show (1) defendants 9 intercepted and (2) "divulged or published. . . a communication transmitted by" plaintiff. 10 Nat'l Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). Section 605 11 applies to satellite television signals. DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 12 2008). Under the statute, plaintiff can recover statutory damages "in a sum of not less than 13 $1,000 or more than $10,000" for each violation. 14 Additionally, if the court "finds that the violation was committed willfully and for purposes 15 of direct or indirect commercial advantage or private financial gain," it may exercise 16 discretion and increase the damages award by up to $100,000 per violation. 17 605(e)(3)(C)(ii). By defaulting, defendants admit that they published the Program to their 18 patrons without obtaining a license from plaintiff in violation of 47 U.S.C. § 605, and did so 19 "willfully and for purposes of direct or indirect commercial advantage or private financial 20 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. 21 Plaintiff asks that we award the maximum in statutory damages under § 605 and 22 increase the award by the maximum amount, for a total award of $110,000. Defendants 23 showed the Program on multiple televisions in a restaurant located in an urban setting that 24 25 26 a "32" regular television," a "third 20" flat screen," and "a large 42" flat screen." Id. 2 27 28 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. -2- 1 was packed to approximately twice its capacity. Defendants showed the program without 2 permission willfully and for commercial gain. Based on these facts, we agree that plaintiff 3 is entitled to the maximum statutory damages award of $10,000. 4 The evidence does not support, however, enhancing the damage award by the 5 maximum permitted. Here, there is no evidence of repeated violations by defendants, no 6 evidence that defendants advertised the Program to draw additional crowds, and no evidence 7 that defendants charged extra for food and drinks. Defendants did not charge a cover for 8 entry. See Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F. Supp. 2d 1179, 1185 (D. 9 Colo. 2008) (discussing these factors as reducing the size of an enhanced damages award). 10 However, we are mindful of the deterrent effect that a substantial award can have on 11 preventing future violations. We find based on the facts of this case that an enhanced 12 damages award of $20,000 is reasonable. The total damages award of $30,000 will not only 13 compensate plaintiff, but is substantial enough to deter future violations. 14 Plaintiff also asks for an award of $2,200 for conversion. Under Arizona law, "the 15 measure of conversion damages includes not only the value of the property taken, but also 16 other damage suffered because of the wrongful detention or deprivation of the property." 17 Collins v. First Fin. Servs., Inc., 168 Ariz. 484, 486, 815 P.2d 411, 413 (Ct. App. 1991). If 18 actual damages are not proven, only an award of nominal damages can be made. SWC 19 Baseline & Crimson Investors, LLC v. Augusta Ranch LP, 228 Ariz. 271, __, 265 P.3d 1070, 20 1092 (Ct. App. 2011). Plaintiff argues that it charges a commercial license fee of $2,200 for 21 businesses the size of Tacos Y Mariscos. It did not, however, include any factual support for 22 this assertion, and it is not pled in the complaint.3 Accordingly, we award nominal damages 23 in the amount of $1 for the conversion claim. Finally, plaintiff requests an award of its costs and attorneys' fees. Plaintiff may file 24 25 26 27 28 3 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. -3- 1 a bill of costs in accordance with LRCiv 54.1, and a motion for attorneys' fees pursuant to 2 LRCiv 54.2. We will rule on a motion for attorneys' fees if and when one is before us. 3 IT IS ORDERED GRANTING plaintiff's motion for default judgment (doc. 14). 4 Judgment is entered for plaintiff J & J Sports Productions, Inc. and against defendant Jose 5 Diaz, individually and dba Tacos Y Mariscos El Kora, and defendant Tacos Y Mariscos El 6 Kora LLC in the total amount of $30,001. The Clerk shall enter judgment. 7 DATED this 4th day of April, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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