J & J Sports Productions Incorporated v. Guzman et al
Filing
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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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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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Luis Alberto Guzman; Mariscos Culiacan)
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LLC,
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Defendants.
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J & J Sports Productions Inc.,
CV 12-00525-PHX-FJM
ORDER
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We have before us plaintiff's motion for default judgment (doc. 15).
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 possessed 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"). Defendants own Mariscos Culiacan, a Phoenix
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restaurant that can hold approximately 75 people. On March 13, 2010, defendants displayed
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the Program on four television sets located throughout the building. There was no cover
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charge to enter, and the Program was not advertised. Three separate head counts confirmed
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that 45, 54, and 59 patrons were inside. Default was recently entered against Luis Guzman
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in another action involving commercial piracy of the Program. Riley Supplemental Decl.
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(doc. 15-4).
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Plaintiff seeks relief under three counts: (1) violation of 47 U.S.C. § 605; (2) violation
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of 47 U.S.C. § 553; and (3) conversion (doc. 1). The Clerk entered default against both
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defendants on July 2, 2012 (doc. 14). Defendants have not moved to set aside default, and
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have not otherwise appeared.
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To recover under 47 U.S.C. § 605, plaintiff must show that (1) defendants intercepted
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and (2) "divulged or published. . . a communication transmitted by" plaintiff. Nat'l
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Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). A successful
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plaintiff can recover 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). These damages may be increased by up to $100,000 if a communication
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was intercepted and published "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 numerous
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factors when assessing whether enhanced damages are appropriate, 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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The need for deterrence is balanced against the harm to the defendant's business if significant
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damages are assessed. See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347,
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350 (9th Cir. 1999).
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Because defendants defaulted, they admit that they published the Program to their
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customers without a license, and did so "willfully and for purposes of direct and/or indirect
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commercial advantage and/or private financial gain." Compl. ¶ 20.1 Keeping in mind the
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goal of deterring piracy, we conclude that a statutory damages award of $10,000 is
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appropriate.
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An enhanced damages award of $100,000, however, is unwarranted. Plaintiff has not
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Because defendants 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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presented evidence that it incurred significant damages. Defendants did not collect a cover
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charge, and there is no evidence that defendants charged a premium for food or drinks, or
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advertised the Program. The Program was displayed on multiple televisions to at most 59
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people. Plaintiff argues that Luis Guzman is a repeat offender because he recently defaulted
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in a commercial piracy action concerning another Mariscos Culiacan restaurant. The other
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action, however, also alleges an interception of the Program on March 13, 2010. See Compl.,
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J & J Sports Prods. Inc. v. Guzman, CV-12-00527-PHX-SRB (doc. 1). Because both actions
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allege an illegal interception of the same Program on the same night, the evidence is
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insufficient to classify Guzman as a true repeat offender. It could be that his March 13, 2010
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interception of the Program, albeit in two locations, was his first. Nevertheless, we recognize
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that a substantial damages award may aid in deterring future violations by these defendants.
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We conclude that under the facts of this case, an enhanced damages award of $7,500 is
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reasonable. The total damages award of $17,500 will both compensate plaintiff and act as
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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. Accordingly, we will not award additional
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damages.
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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.
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IT IS ORDERED GRANTING plaintiff's motion for default judgment (doc. 15).
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The Clerk shall enter judgment in favor of plaintiff and against defendants in the amount of
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$17,500.
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DATED this 30th day of July, 2012.
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