J & J Sports Productions Incorporated v. Stone et al

Filing 17

DEFAULT JUDGMENT ORDER (as to Defendant Damien Stone, individually, and d/b/a Stone Hard Boxing; and Stonehard Boxing, LLC, an unknown business entity d/b/a Stone Hard Boxing) - IT IS HEREBY ORDERED granting the Motion for Default Judgment (Doc. 14 ) in the amount of $38,600.00. (See document for further details). Signed by Judge G Murray Snow on 9/13/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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J & J Sports Productions, Incorporated,
Plaintiff,

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No. CV-13-00936-PHX-GMS
DEFAULT JUDGMENT ORDER

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v.

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Damien Stone, individually and dba Stone
Hard Boxing; James G. Bennitt, Jr.,
individually and dba Stone Hard Boxing;
and Stonehard Boxing, LLC, an unknown
business entity dba Stone Hard Boxing,

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Defendants.

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Pending before the Court is Plaintiff’s Motion for Default Judgment as to

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Defendant Damien Stone, individually, and d/b/a Stone Hard Boxing; and Stonehard

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Boxing, LLC, an unknown business entity d/b/a Stone Hard Boxing (hereinafter

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“Defendant Stone”) (Doc.14).

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memorandum of points and authorities in support of its application of default judgment.

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It further files a Declaration of Thomas E. Riley; an Affidavit of Michael Conrad; and an

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Affidavit of Joseph M. Gagliardi, President of Plaintiff J & J Sports Productions, Inc.

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In conjunction with the motion, Plaintiff filed a

BACKGROUND
Plaintiff filed its Complaint on May 6, 2011. The relevant allegations in the
Complaint are contained in ¶ 24 which alleges that:

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With full knowledge that the Program was not to be
intercepted, received published, divulged, displayed, and/or
exhibited by commercial entities unauthorized to do so, each
and every one of the above named Defendants, either through
direct action or through actions of employees or agents

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directly imputable to Defendants (as outlined in paragraphs 719 above, did unlawfully intercept, receive, publish, divulge,
display, and/or exhibit the Program at the time of its
transmission at their commercial establishment in Chandler,
Arizona located at 2775 N. Arizona Avenue, Chandler,
Arizona 85225.

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The Complaint further alleged Defendant Stone knowingly violated 47 U.S.C.
§ 605 (see Complaint ¶¶ 27-29). The Court thus treats that allegation as true for purposes

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of the entry of default judgment. According to 47 U.S.C. § 605(e)(c)(1)(2), Plaintiff can

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receive not less than $1,000.00, no more than $10,000.00 in statutory damages.

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Nevertheless, pursuant to 47 U.S.C. § 605(e)(c)(2) the statutory award of damages can be

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increased to an amount of not more than $100,000.00 for each violation of the statute

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because Defendant Stone committed the interception willfully and for purposes of direct

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or indirect commercial and private financial gain. The Court therefore considers the

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action cap on the damages awarded to be $100,000.00. J & J Sports Productions v.

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Ferreyera, 2008 WL 4104315 (E.D.CA. 2008). Plaintiff sets forth in its memorandum of

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points and authorities cases which consider a number of factors in determining the

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damages to be awarded within the $100,000.00 statutory range. Those factors include:

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(1) the size of the offending establishment; (2) the number
and size of screens displaying the pirated broadcast; (3) any
evidence of advertising the pirated broadcast to attract
customers; (4) any cover change made to patrons of the
establishment broadcasting the pirated transmission; (5) any
premium for any food and drink charged for any pirated
transmission; (6) the need to deter future violations; (7) the
difficulty in detecting the unlawful acquisition of the
broadcast; and (8) the widespread loss that occurs through
pirating license transmissions.

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In his Affidavit attached to the motion, Michael Conrad avows that on the date in

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question he entered the bar for approximately thirty (30) minutes and observed “the
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decision being given for the bout between Alfonso Lopez and Kelly Pavlik.”

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broadcast was on two 36” inch televisions stationed inside the establishment. Mr. Conrad

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“counted the number of patrons at three separate times. The head counts were 20, 23,

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and 25” people in the establishment and noted that he paid a $10.00 cover charge to enter

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the establishment during the fight. In his Affidavit, Mr. Joseph Gagliardi, President of

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Plaintiff indicates that his broadcast could not have been presented by Defendant Stone

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through a legitimate means. He further indicates that the pirating of J & J Sports’

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broadcasts cost his corporation what he believes to be several millions of dollars. He

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further states that he believes that some of the traditional factors considered by Courts,

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such as whether or not additional fees are charged by a pirating entity are not appropriate

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considerations in calculating a damage amount.

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After having considered and balanced the difficulty in detecting those who pirate

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criminal broadcasts, the need to deter future illegitimate pirating of broadcasts and the

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widespread loss caused in the industry balanced against the four screens on which the

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broadcast was displayed, or to demonstrate that Defendant Stone profited significantly by

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the illegal broadcast, the Court arrives at the conclusion that the appropriate statutory

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damages in this case authorized by 47 U.S.C. § 605(e)(3)(c)(ii) is $35,000.00. To that the

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Court awards $3,600.00 based on account of conversion.

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IT IS HEREBY ORDERED granting the Motion for Default Judgment (Doc. 14)
in the amount of $38,600.00.

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Dated this 13th day of September, 2013.

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