Innovative Sports Management Incorporated v. Antar et al

Filing 20

ORDER that Plaintiff's 18 Application for Default Judgment is granted as set forth herein. The Clerk of the Court shall enter judgment in favor of Plaintiff and against Defendant in the amount of 13,000.00. Plaintiff may move for attorney's fees as provided in the Local Rules of Civil Procedure. Signed by Senior Judge James A Teilborg on 3/27/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Innovative Sports Management
Incorporated,

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No. CV-12-00677-PHX-JAT
ORDER

Plaintiff,

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v.

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Alan Antar,

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Defendant.

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Pending before the Court is Plaintiff’s Application for Default Judgment (Doc.

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18). The Clerk of the Court entered default on July 17, 2012 (Doc. 15). Plaintiff now

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seeks default judgment in the amount of $111,750,000.

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Plaintiff’s damages are broken down into three categories: 1) statutory damages

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pursuant to 47 U.S.C. ' 605(e)(3)(C)(i)(II); 2) enhanced damages pursuant to 47 U.S.C. '

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605(e)(3)(C)(ii);1 and 3) conversion damages pursuant to Arizona law. Plaintiff seeks

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$10,000, $100,000, and $1,750, in the respective categories.

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Statutory and Enhanced Damages arise under Count I of the Complaint.
Conversion Damages arise under Count III of the Complaint. Count II of the Complaint
alleges violations of 47 U.S.C. ' 553. However, Plaintiff contends that it only seeks
liability and damages on its claim under 47 U.S.C. section 605 and its claim for
conversion and does not seek damages for its claim under 47 U.S.C. § 553. (Doc. 18-1 at
3). Accordingly, the Court will award Plaintiff no damages on Count II of its Complaint.

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I.

STATUTORY DAMAGES

Statutory damages are appropriate pursuant to 47 U.S.C. section 605 when actual
damages cannot be easily proven. J & J Sports Productions, Inc. v. Canedo, No. C 0901488 PJH, 2009 WL 4572740, at *5 (N.D. Cal. 2009). “Under § 605(e)(3)(C)(i)(II), an
aggrieved party may recover ‘a sum not less than $1,000 or more than $10,000, as the
court considers just’ for each violation.” J & J Sports Productions Inc. v. Miramontes,
No. CV-10-02345-PHX-FJM, 2011 WL 892350, at * 2 (D. Ariz. March 14, 2011)
(internal citation omitted). Further, “[a]n award of damages should deter future conduct
but not destroy the business.” Id. (quoting Kingvision Pay–Per–View v. Lake Alice Bar,
168 F.3d 347, 360 (9th Cir. 2009)).
In awarding statutory damages pursuant to 47 U.S.C. section 605, courts in this
district have considered factors such as the maximum capacity of the commercial
establishment, the total number of patrons present at the time of the unauthorized
showing, and the amount defendant would have paid if it had purchased the rights to
show the broadcast. See, e.g., id.
In this case, Plaintiff has presented evidence that the Program was broadcast on 32
televisions to between 45 and 51 patrons, and the capacity of the sports bar was
approximately 404 patrons. Plaintiff offered no information about what an establishment
with a capacity of 404 patrons would have had to pay for the program. Based on the size
of the establishment and number of patrons present, the Court finds a $3,000 penalty to
be appropriate and will award $3,000 under § 605(e)(3)(C)(i)(II).
Further, “[e]nhanced damages are awarded upon a showing that defendant acted
willfully and for the purpose of direct or indirect commercial advantage or private
financial gain. Under § 605(e)(3)(C)(ii), the court may award up to $100,000 . . .”
Miramontes, 2011 WL 892350, *2. In deciding whether to award enhanced damages,

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Courts generally consider factors such as repeat violations,
substantial unlawful monetary gains, significant actual
damages to plaintiff, advertising, cover charges, or charging
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premium menu and drink prices. See Kingvision Pay–Per–
View v. Gutierrez, 544 F.Supp.2d 1179, 1185 (D. Colo.
2008). Some courts find the mere unauthorized showing of a
program sufficient to award enhanced damages because given
the low probability of accidentally showing it, it must have
been done willfully and for profit. See Entertainment By J &
J, Inc. v. Al–Waha Enter., Inc., 219 F.Supp.2d 769, 776 (S.D.
Tex. 2002).

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Id.

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Here, there is evidence of 2 other violations,2 and there is evidence there was no

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cover charge. There is no evidence that there were substantial unlawful monetary gains,

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advertising, or premium drink or menu prices. Further, Plaintiff alleged that Defendant’s

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showing of the fight was willful and that allegation is accepted as true for purposes of

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default judgment. See J & J Sports Productions, Inc. v. Marcaida, No. 10-5125 SC, 2011

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WL 2149923, at *2 (N.D. Cal. May 31, 2011) (noting that it is extremely unlikely that the

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signal to display the fight is acquired inadvertently and, thus, without evidence of the

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absence of willfulness, the Court can assume that Defendant acted willfully and for the

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purposes of commercial advantage warranting enhanced damages). Because Plaintiff has

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presented some evidence of repeat violations, the Court finds that $10,000 in enhanced

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damages to be appropriate. See Joe Hand Promotions, Inc. v. Coen, No. CV 11-2531-

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PHX-JAT, 2012 WL 2919710, *2 (D. Ariz. July 17, 2012) (awarding $10,000 in

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enhanced damages for deterrence purposes).

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II.

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Plaintiff also seeks $1,750 in conversion damages. “Conversion is any act of

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dominion wrongfully asserted over another’s personal property in denial of or

DAMAGES FOR CONVERSION

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Although Plaintiff contends that it has presented evidence of six other
violations, this Court does not consider the simple filing of a complaint to be evidence of
an actual violation. Plaintiff has presented evidence that two other Courts entered default
judgment against Defendant, and, thus, the Court finds that there is evidence that
Defendant violated the statute two other times.
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inconsistent with his rights therein.”

Scott v. Allstate Ins. Co., 553 P.2d 1221,

1225 (Ariz. Ct. App. 1976). Under Arizona law, “the measure of conversion damages
includes not only the value of the property taken, but also other damage suffered because
of the wrongful detention or deprivation of the property.” Collins v. First Fin. Servs.,
Inc., 815 P.2d 411, 413 (Ariz. Ct. App. 1991).
Plaintiff seeks $1,750 in conversion damages, but does not explain how the value
of what was converted was $1,750.

Further, Plaintiff states that the evidence of

conversion is in the Gagliardi Affidavit at ¶ 8. Doc. 18-1 at 14. No such affidavit is in
this record. Accordingly, because the Court has no evidence of conversion damages, the
request for conversion damages will be denied, including that the Court will not award
nominal damages.
III.

CONCLUSION

Based on the foregoing,
IT IS ORDERED that Plaintiff’s Application for Default Judgment (Doc. 18) is
granted as set forth herein. The Clerk of the Court shall enter judgment in favor of
Plaintiff and against Defendant in the amount of 13,000.00. Plaintiff may move for
attorney’s fees as provided in the Local Rules of Civil Procedure.
Dated this 27th day of March, 2013.

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