Joe Hand Promotions Incorporated v. Pinkhasov
Filing
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ORDER granting 20 plaintiff's Motion for Default Judgment. The Clerk shall enter judgment in favor of plaintiff and against defendant in the amount of $15,000. Signed by Judge Frederick J Martone on 8/23/12.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Joe Hand Promotions, Inc.,
Plaintiff,
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vs.
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Edward Pinkhasov,
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Defendant.
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CV 11-02437-PHX-FJM
ORDER
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We have before us plaintiff's motion for default judgment (doc. 20).
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considering a motion for default judgment we take well-pled allegations regarding liability
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as true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).
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Plaintiff was granted the exclusive distribution rights to "Ultimate Fighting
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Championship 124: Georges St. Pierre v. Josh Koscheck," which was televised on December
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11, 2010 ("the Program"). Defendant owns VIP Hookah Lounge (also known as Bellagio
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Palace Euro Lounges), a Phoenix establishment with a capacity of approximately 400-500
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(with tables and chairs) and 1,000 (without tables and chairs). Defendant displayed the
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Program on four televisions located throughout the facility. Defendant charged a $5 cover
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fee for entry. Three separate head counts on December 11, 2010 indicated that 18, 24, and
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26 people were inside.
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Plaintiff seeks relief for: (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C.
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§ 553; and (3) conversion (doc. 1). The Clerk entered default on April 9, 2012 (doc. 17).
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Defendant has not moved to set aside default, and has not otherwise appeared.
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To prevail on its 47 U.S.C. § 605 claim, plaintiff must show that (1) defendant
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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). The statute
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provides for statutory damages of at least $1,000 and at most $10,000. 47 U.S.C. §
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605(e)(3)(C)(i)(II). Damages may be increased by up to $100,000 if defendant intercepted
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and published the communication "willfully and for purposes of direct or indirect commercial
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advantage or private financial gain." Id. § 605(e)(3)(C)(ii). Courts consider "prior
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infringements, substantial unlawful monetary gains, significant actual damages to the
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plaintiff, the defendant's advertising of the broadcast, and the defendant's charging a cover
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charge or premiums for food and drinks during the broadcast" when deciding whether to
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award enhanced damages. Kingvision Pay-Per-View, Ltd. v. Guzman, CV-07-0963-PHX-
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PGR, 2008 WL 1924988, at *3 (D. Ariz. Apr. 30, 2008). We balance the need for deterrence
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against the harm to defendant's business if significant damages are assessed. See Kingvision
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Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).
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Defendant admits by defaulting that he unlawfully published the Program to his
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customers, and did so "willfully and for purposes of direct or indirect commercial advantage
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or private financial gain." Compl. ¶ 12.1 After considering the goal of deterring cable piracy.
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we conclude that a statutory damages award of $10,000 is appropriate. Plaintiff's request for
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the full $100,000 in enhanced damages, however, is not warranted. There is no evidence that
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defendant is a repeat illegal interceptor of programming, and there is no evidence that
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plaintiff incurred significant damages. There is also no evidence that defendant charged a
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premium for drinks or food. Although defendant did collect a $5 cover charge and display
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the Program on multiple television screens, the Program was displayed to at most 26 people.
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There is no evidence that defendant advertised the Program. We acknowledge, however, that
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Because defendant defaulted, plaintiff cannot determine what type of signal
transmission was used and asks for recovery under 47 U.S.C. § 605.
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a more significant damages award may serve to deter future violations. Under the facts of
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this case, an enhanced damages award of $5,000 is reasonable. The total damages award of
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$15,000 will both compensate plaintiff and act as a deterrent against future violations.
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Plaintiff requests an award of $3,000 on its conversion claim, but does not present
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any argument or evidence to support this request. We decline to award additional damages.
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Plaintiff also requests an award of its costs and attorneys' fees. Plaintiff may file a bill of
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costs in accordance with LRCiv 54.1 and Rule 54(d)(1), Fed. R. Civ. P., and a motion for
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attorneys' fees pursuant to Rule 54(d)(2), Fed. R. Civ. P. We will rule on a motion for
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attorneys' fees if and when one is before us.
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IT IS ORDERED GRANTING plaintiff's motion for default judgment (doc. 20).
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The Clerk shall enter judgment in favor of plaintiff and against defendant in the amount of
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$15,000.
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DATED this 23rd day of August, 2012.
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