J & J Sports Productions Incorporated v. Jacamo

Filing 15

ORDER granting Plaintiff's 14 Motion for Default Judgment; the Clerk shall enter judgment in favor of plaintiff and against defendant in the amount of $12,500. Signed by Judge Frederick J Martone on 7/19/12.(REW)

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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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Gustavo Jacamo, individually and dba)
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Cardinal Pizza,
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Defendant.
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J & J Sports Productions Inc.,

CV 12-00521-PHX-FJM
ORDER

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We have before us 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
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regarding liability 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 commercial distribution rights to "'The Event': The
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Manny Pacquiao v. Joshua Clottey WBO Welterweight Championship," which was televised
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on March 13, 2010 ("the Program"). Defendant owns Cardinal Pizza, a Phoenix restaurant
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with a capacity of approximately 25 people. Cardinal Pizza displayed the Program on one
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thirty-two inch television located in the corner of the dining room. There was no cover
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charge to enter. Three separate head counts on March 13, 2010 revealed that 23 patrons
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were inside.
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Plaintiff's complaint seeks relief under three counts: (1) violation of 47 U.S.C. § 605;
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(2) violation of 47 U.S.C. § 553; and (3) conversion (doc. 1). Default was entered by the
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Clerk on June 21, 2012 (doc. 13). Defendant has not moved to set aside default, and has not

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otherwise appeared.

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Under 47 U.S.C. § 605, plaintiff must show that (1) defendant intercepted and (2)

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"divulged or published. . . a communication transmitted by" plaintiff. Nat'l Subscription

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Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). If successful, plaintiff can

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recover statutory damages of at least $1,000 and at most $10,000.

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605(e)(3)(C)(i)(II). Damages may be increased by up to $100,000 per violation if defendant

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intercepted and published the communication "willfully and for purposes of direct or indirect

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commercial advantage or private financial gain." Id. § 605(e)(3)(C)(ii). When deciding

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whether to award enhanced damages, courts consider a multitude of factors, including "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." Kingvision Pay-Per-View,

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Ltd. v. Guzman, CV-07-0963-PHX-PGR, 2008 WL 1924988, at *3 (D.Ariz. Apr. 30, 2008).

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We balance the need to deter future illegal conduct against the harm that will result to the

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defendant's business if significant damages are assessed. See Kingvision Pay-Per-View Ltd.

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v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).

47 U.S.C. §

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Defendant admits by defaulting that he published the Program to his customers

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without a license, and did so "willfully and for purposes of direct and/or indirect commercial

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advantage and/or private financial gain." Compl. ¶ 20.1 We conclude that under these facts,

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considering the goal of deterring piracy, a statutory damages award of $10,000 is appropriate.

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We do not agree with plaintiff, however, that an award of $100,000 in enhanced

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damages is warranted in this case. There is no evidence that defendant is a repeat illegal

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interceptor of programming, and there is no evidence that plaintiff incurred significant

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damages. Defendant did not collect a cover charge upon entry, and there is no indication 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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he charged a premium for food or drinks that night. The Program was displayed to at most

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23 people, and on one relatively small television. There is no evidence that defendant

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advertised a broadcast of the Program. However, a substantial damages award may play a

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more successful role in deterring future violations. We conclude that under the facts of this

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case, an enhanced damages award of $2,500 is reasonable. The total damages award of

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$12,500 will both compensate plaintiff and act as a deterrent against future violations.

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Plaintiff requests an award of $1,800 on its conversion claim. However, it presents

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no argument or evidence to support this request. We decline to award any additional

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damages on the conversion claim.

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Finally, plaintiff requests an award of its costs and attorneys' fees. Plaintiff may file

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a bill of costs in accordance with LRCiv 54.1 and Rule 54(d)(1), Fed. R. Civ. P., and a

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motion for attorneys' fees pursuant to Rule 54(d)(2), Fed. R. Civ. P. We will rule on a

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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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The Clerk shall enter judgment in favor of plaintiff and against defendant in the amount of

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$12,500.

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DATED this 19th day of July, 2012.

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