J & J Sports Productions Incorporated v. Rubio

Filing 15

ORDER granting Plaintiff's 13 Motion for Entry of Default Judgment as specified in this order; the Clerk shall enter judgment in favor of Plaintiff and against Defendant Rubio in the amount of $11,000; Plaintiff may move for attorneys' fees as provided in the Civil Local Rules. Signed by Senior Judge James A Teilborg on 3/11/13.(REW)

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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 J & J Sports Productions, Inc., 10 Plaintiff, 11 vs. 12 Everardo Rubio, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-900-PHX-JAT ORDER 15 16 Pending before the Court is Plaintiff’s motion for entry of default judgment. The 17 Clerk of the Court entered default on October 9, 2012. Plaintiff now seeks default judgment 18 in the amount of $112,200.00. 19 Plaintiffs 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); and 3) conversion damages pursuant to Arizona law. Plaintiff seeks 22 $10,000, $100,000, and $2,200, in the respective categories. Declaration of Thomas Riley 23 at ¶ 7. 24 1. Statutory Damages 25 Statutory damages are appropriate when actual damages cannot be easily proven. J 26 & J Sports Productions, Inc. v. Canedo, 2009 WL 4572740, *5 (N.D. Cal. 2009). “Under § 27 605(e)(3)(C)(i)(II), an aggrieved party may recover ‘a sum not less and $1,000 or more than 28 $10,000, as the court considers just’ for each violation.” J & J Sports Productions Inc. v. 1 Miramontes, 2011 WL 892350, * 2 (D. Ariz. March 14, 2011). Further, “[a]n award of 2 damages should deter future conduct but not destroy the business. Kingvision Pay–Per–View 3 v. Lake Alice Bar, 168 F.3d 347, 360 (9th Cir.2009).” Id. 4 In Miramontes, another Judge in this district held: 5 [Defendant] is a commercial establishment with a maximum capacity of 250 people. According to plaintiff's investigator, the establishment had 2 televisions and the total number of patrons at any given time were 8, 9, or 12. Given the relatively small impact of defendants’ actions and the extremely low number of patrons in attendance, maximum statutory damages are not appropriate. If defendants had purchased the rights to show the broadcast it would have paid $1,400 (based on their 250 maximum capacity). Therefore, we find statutory damages in an amount double that, or $2,700, are appropriate. 6 7 8 9 10 Id. 11 In this case, Defendant’s establishment had 30 patrons at the time the boxing match 12 was broadcast, and had a maximum capacity of 30 patrons. Doc. 13-1 at 14. Plaintiff offered 13 no information about what an establishment of 30 people would have had to pay for the 14 program. Further, Plaintiff’s total argument regarding how this Court should calculate 15 damages is, “Plaintiff respectfully requests that this Court award the maximum $10,000 16 permissible under the statute.” Id. at 10 (Plaintiff then cites other courts which awarded the 17 maximum amount). 18 Based on the size of the establishment, and the lack of evidence regarding what 19 purchasing the program would have cost, the Court finds the minimum penalty to be 20 appropriate and will award $1,000.00 under § 605(e)(3)(C)(i)(II). 21 2. 22 “Enhanced damages are awarded upon a showing that defendant acted willfully and 23 for the purpose of direct or indirect commercial advantage or private financial gain. Under 24 § 605(e)(3)(C)(ii), the court may award up to $100,000... .” Miramontes, 2011 WL 892350, 25 *2. In deciding whether to award enhanced damages, 26 27 28 Enhanced Damages Courts generally consider factors such as repeat violations, substantial unlawful monetary gains, significant actual damages to plaintiff, advertising, cover charges, or charging 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 -2- 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). 1 2 3 Id. 4 Here, the is no evidence of substantial unlawful monetary gains, actual damages, 5 advertizing, cover charges, or premium drink or menu prices. See Doc. 13-3, pages 1-6. 6 Plaintiff has submitted evidence that this is the second case brought against this 7 establishment. Further, Plaintiff alleged that Defendant’s showing of the fight was willful 8 and that allegation is accepted as true for purposes of default judgment. Doc. 1 at 4-5. Thus, 9 some measure of enhanced damages is appropriate; however, not the statutory maximum of 10 $100,000 that Plaintiff seeks. 11 Like Miramontes, there is only one aggravating factor in this case; specifically, that 12 Defendant has another violation. See id. Thus, like the Court in Miramontes, this Court 13 finds $10,000.00 in enhanced damages to be appropriate. See also Joe Hand Promotions, 14 Inc. v. Coen, 2012 WL 2919710, *2 (D. Ariz. July 17, 2012) (awarding $10,000 in enhanced 15 damages for deterrence purposes). 16 3. Conversion 17 Plaintiff seeks $2,200.00 in conversion damages. Declaration of Thomas P. Riley at 18 2. In Coen, this Court found that conversion damages might be recoverable. 2012 WL 19 2919710, *2 In J & J Sports Productions Inc. v. Diaz, 2012 WL 1134904, *2 (D. Ariz. April 20 4, 2012) another Court in this District also found that conversion damages might be 21 recoverable. In both of those cases, the Court awarded $1 in nominal damages due to lack 22 of proof on Plaintiff’s part. 23 Here, Plaintiff does not explain how the value of what was converted was $2,200.00.1 24 Further, Plaintiff states that the evidence of conversion is the “Gagliardi Affidavit ¶ 8.” Doc. 25 26 27 28 1 In Diaz, the Court noted $2,200.00 was the price to purchase the program for a commercial establishment the size of the venue in Diaz. Here, the Court has no similar evidence, but because it is the same number, the Court suspects Plaintiff arrived at $2,200.00 for the same reason. -3- 1 13-1 at 19. No such affidavit is in this record. Accordingly, because the Court has no 2 evidence of conversion damages, the request for conversion damages will be denied, 3 including that the Court will not award nominal damages. 4 Based on the foregoing, 5 IT IS ORDERED granting Plaintiff’s motion for entry of default judgment (Doc. 13) 6 as specified above; the Clerk of the Court shall enter judgment in favor of Plaintiff and 7 against Defendant Rubio in the amount of $11,000. Plaintiff may move for attorney’s fee as 8 provided in the Civil Local Rules.2 9 DATED this 11th day of March, 2013. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Statutory and Enhanced Damages arise under Court I of the Complaint. Conversion Damages arise under Count III of the Complaint. Count II of the Complaint seeks $60,000 under 47 U.S.C. § 553. Because the motion for default judgment does not mention this claim at all, the Court deems it to be dismissed with prejudice with Plaintiff to take nothing on Count II. -4-

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