J & J Sports Productions Incorporated v. Guzman et al

Filing 16

ORDER granting 15 plaintiff's Motion for Default Judgment. The Clerk shall enter judgment in favor of plaintiff and against defendants in the amount of $17,500. Signed by Judge Frederick J Martone on 7/30/12.(TLJ)

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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. ) ) Luis Alberto Guzman; Mariscos Culiacan) ) LLC, ) ) Defendants. ) ) ) J & J Sports Productions Inc., CV 12-00525-PHX-FJM ORDER 16 17 We have before us plaintiff's motion for default judgment (doc. 15). When 18 considering a motion for default judgment we take a complaint's well-pled allegations 19 regarding liability as true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). 20 Plaintiff possessed the exclusive commercial distribution rights to "'The Event': The 21 Manny Pacquiao v. Joshua Clottey WBO Welterweight Championship," which was televised 22 on March 13, 2010 ("the Program"). Defendants own Mariscos Culiacan, a Phoenix 23 restaurant that can hold approximately 75 people. On March 13, 2010, defendants displayed 24 the Program on four television sets located throughout the building. There was no cover 25 charge to enter, and the Program was not advertised. Three separate head counts confirmed 26 that 45, 54, and 59 patrons were inside. Default was recently entered against Luis Guzman 27 in another action involving commercial piracy of the Program. Riley Supplemental Decl. 28 (doc. 15-4). 1 Plaintiff seeks relief under three counts: (1) violation of 47 U.S.C. § 605; (2) violation 2 of 47 U.S.C. § 553; and (3) conversion (doc. 1). The Clerk entered default against both 3 defendants on July 2, 2012 (doc. 14). Defendants have not moved to set aside default, and 4 have not otherwise appeared. 5 To recover under 47 U.S.C. § 605, plaintiff must show that (1) defendants intercepted 6 and (2) "divulged or published. . . a communication transmitted by" plaintiff. Nat'l 7 Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). A successful 8 plaintiff can recover statutory damages of at least $1,000 and at most $10,000. 47 U.S.C. § 9 605(e)(3)(C)(i)(II). These damages may be increased by up to $100,000 if a communication 10 was intercepted and published "willfully and for purposes of direct or indirect commercial 11 advantage or private financial gain." Id. § 605(e)(3)(C)(ii). Courts consider numerous 12 factors when assessing whether enhanced damages are appropriate, including "prior 13 infringements, substantial unlawful monetary gains, significant actual damages to the 14 plaintiff, the defendant's advertising of the broadcast, and the defendant's charging a cover 15 charge or premiums for food and drinks during the broadcast." Kingvision Pay-Per-View, 16 Ltd. v. Guzman, CV-07-0963-PHX-PGR, 2008 WL 1924988, at *3 (D. Ariz. Apr. 30, 2008). 17 The need for deterrence is balanced against the harm to the defendant's business if significant 18 damages are assessed. See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 19 350 (9th Cir. 1999). 20 Because defendants defaulted, they admit that they published the Program to their 21 customers without a license, and did so "willfully and for purposes of direct and/or indirect 22 commercial advantage and/or private financial gain." Compl. ¶ 20.1 Keeping in mind the 23 goal of deterring piracy, we conclude that a statutory damages award of $10,000 is 24 appropriate. 25 An enhanced damages award of $100,000, however, is unwarranted. Plaintiff has not 26 27 28 1 Because defendants defaulted, plaintiff cannot determine what type of signal transmission was used, and asks for recovery under 47 U.S.C. § 605. -2- 1 presented evidence that it incurred significant damages. Defendants did not collect a cover 2 charge, and there is no evidence that defendants charged a premium for food or drinks, or 3 advertised the Program. The Program was displayed on multiple televisions to at most 59 4 people. Plaintiff argues that Luis Guzman is a repeat offender because he recently defaulted 5 in a commercial piracy action concerning another Mariscos Culiacan restaurant. The other 6 action, however, also alleges an interception of the Program on March 13, 2010. See Compl., 7 J & J Sports Prods. Inc. v. Guzman, CV-12-00527-PHX-SRB (doc. 1). Because both actions 8 allege an illegal interception of the same Program on the same night, the evidence is 9 insufficient to classify Guzman as a true repeat offender. It could be that his March 13, 2010 10 interception of the Program, albeit in two locations, was his first. Nevertheless, we recognize 11 that a substantial damages award may aid in deterring future violations by these defendants. 12 We conclude that under the facts of this case, an enhanced damages award of $7,500 is 13 reasonable. The total damages award of $17,500 will both compensate plaintiff and act as 14 a deterrent against future violations. 15 Plaintiff requests an award of $1,800 on its conversion claim. However, it presents 16 no argument or evidence to support this request. Accordingly, we will not award additional 17 damages. 18 Finally, plaintiff requests an award of its costs and attorneys' fees. Plaintiff may file 19 a bill of costs in accordance with LRCiv 54.1 and Rule 54(d)(1), Fed. R. Civ. P., and a 20 motion for attorneys' fees pursuant to Rule 54(d)(2), Fed. R. Civ. P. 21 IT IS ORDERED GRANTING plaintiff's motion for default judgment (doc. 15). 22 The Clerk shall enter judgment in favor of plaintiff and against defendants in the amount of 23 $17,500. 24 DATED this 30th day of July, 2012. 25 26 27 28 -3-

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