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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Innovative Sports Management Incorporated, 10 No. CV-12-00677-PHX-JAT ORDER Plaintiff, 11 12 v. 13 Alan Antar, 14 Defendant. 15 16 Pending before the Court is Plaintiff’s Application for Default Judgment (Doc. 17 18). The Clerk of the Court entered default on July 17, 2012 (Doc. 15). Plaintiff now 18 seeks default judgment in the amount of $111,750,000. 19 Plaintiff’s damages are broken down into three categories: 1) statutory damages 20 pursuant to 47 U.S.C. ' 605(e)(3)(C)(i)(II); 2) enhanced damages pursuant to 47 U.S.C. ' 21 605(e)(3)(C)(ii);1 and 3) conversion damages pursuant to Arizona law. Plaintiff seeks 22 $10,000, $100,000, and $1,750, in the respective categories. 23 24 25 26 27 28 1 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. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, 26 27 28 Courts generally consider factors such as repeat violations, substantial unlawful monetary gains, significant actual damages to plaintiff, advertising, cover charges, or charging -2- 1 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). 2 3 4 5 6 7 Id. 8 Here, there is evidence of 2 other violations,2 and there is evidence there was no 9 cover charge. There is no evidence that there were substantial unlawful monetary gains, 10 advertising, or premium drink or menu prices. Further, Plaintiff alleged that Defendant’s 11 showing of the fight was willful and that allegation is accepted as true for purposes of 12 default judgment. See J & J Sports Productions, Inc. v. Marcaida, No. 10-5125 SC, 2011 13 WL 2149923, at *2 (N.D. Cal. May 31, 2011) (noting that it is extremely unlikely that the 14 signal to display the fight is acquired inadvertently and, thus, without evidence of the 15 absence of willfulness, the Court can assume that Defendant acted willfully and for the 16 purposes of commercial advantage warranting enhanced damages). Because Plaintiff has 17 presented some evidence of repeat violations, the Court finds that $10,000 in enhanced 18 damages to be appropriate. See Joe Hand Promotions, Inc. v. Coen, No. CV 11-2531- 19 PHX-JAT, 2012 WL 2919710, *2 (D. Ariz. July 17, 2012) (awarding $10,000 in 20 enhanced damages for deterrence purposes). 21 II. 22 Plaintiff also seeks $1,750 in conversion damages. “Conversion is any act of 23 dominion wrongfully asserted over another’s personal property in denial of or DAMAGES FOR CONVERSION 24 25 26 27 28 2 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. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 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. 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?