J & J Sports Productions Incorporated v. Youssef et al

Filing 33

AMENDED ORDER and DEFAULT JUDGMENT - Plaintiff's motion for default judgment (Doc. 29 ) is granted. Default judgment is entered in favor of Plaintiff and against Defendants Antone Fayez Youssef a/k/a Tony Yousseff, d/b/a Cleopatra, and Cleopatra Restaurant Incorporated, for violation of 47 U.S.C. § 605, in the amount of $60,000. Plaintiff may file a motion for attorneys' fees within 14 days of this order. Signed by Judge David G Campbell on 1/30/17.(KGM)

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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, Inc.,

No. CV16-01102 PHX DGC

Plaintiff,

AMENDED ORDER AND
DEFAULT JUDGMENT

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v.
Anotone Fayez Youssej a/k/a Tony
Youssej, et al.,

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Defendants.

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Plaintiff has filed a motion for default judgment. Doc. 29. The Court held a

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hearing on January 26, 2017, and will grant the motion.

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I.

Background.

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Plaintiff owned the exclusive nationwide commercial distribution rights to a

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program entitled “The Fight of the Century”: Floyd Mayweather, Jr. v. Manny Pacquiao

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Championship Fight Program. The program aired on May 2, 2015. Id. Plaintiff claims

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that Defendants intercepted the program and displayed it to the public at Cleopatra, a bar

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or restaurant.

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Communications Act of 1934 (47 U.S.C. § 605 et seq.) and the Cable and Television

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Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553 et seq.). Doc. 1.

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Plaintiff served Defendants, who have not answered or otherwise responded to the

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complaint.

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Doc. 21. Plaintiff filed the motion for default judgment. Doc. 29. No response to the

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motion has been filed.

Plaintiff filed suit seeking relief for Defendants’ violations of the

On September 1, 2016, the Clerk entered default against Defendants.

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II.

The Motion for Default Judgment.

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Once a party’s default has been entered, the district court has discretion to grant

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default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616

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F.2d 1089, 1092 (9th Cir. 1980). Factors the court may consider in deciding whether to

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grant default judgment include (1) the possibility of prejudice to the plaintiff, (2) the

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merits of the claim, (3) the sufficiency of the complaint, (4) the amount of money at

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stake, (5) the possibility of a dispute concerning material facts, (6) whether default was

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due to excusable neglect, and (7) the policy favoring a decision on the merits. Eitel v.

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McCool, 782 F.2d 1470, 1471-72. In applying the Eitel factors, “the factual allegations

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of the complaint, except those relating to the amount of damages, will be taken as true.”

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Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977).

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A.

Possible Prejudice to Plaintiff.

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The first Eitel factor weighs in favor of granting Plaintiff’s motion. Plaintiff

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served process on Defendants on July 13 and 14, and August 4, 2016. Docs. 11, 12, 17.

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Defendants have not answered the complaint or otherwise appeared in this action. If

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Plaintiff’s motion for default judgment is not granted, Plaintiff “will likely be without

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other recourse for recovery.” PepsiCo, Inc. v. Cal. Security Cans, 238 F. Supp. 2d 1172,

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1177 (C.D. Cal. 2002).

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B.

The Merits of Plaintiff’s Claims and the Sufficiency of the Complaint.

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The second and third Eitel factors favor a default judgment where the complaint

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sufficiently states a claim for relief. See PepsiCo, Inc., 238 F. Supp. 2d at 1175. Plaintiff

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seeks relief under 47 U.S.C. § 605. “[T]o be held liable for a violation of section 605, a

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defendant must be shown to have (1) intercepted or aided the interception of, and (2)

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divulged or published, or aided the divulging or publishing of, a communication

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transmitted by the plaintiff.” Nat’l Subscription Television v. S & H TV, 644 F.2d 820,

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826 (9th Cir. 1981). Section 605 applies to satellite television signals. DirecTV, Inc. v.

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Webb, 545 F.3d 837, 844 (9th Cir. 2008). Plaintiff has alleged that Defendants willfully

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intercepted and displayed the licensed program on May 2, 2015. Plaintiff’s allegations
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are supported by the affidavits of two investigators who visited Cleopatra and saw the

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program being displayed on television screens. Doc. 29-3. One of these investigators

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noted approximately 200 patrons watching the program on five television screens. The

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investigator also found flyers in the restaurant advertising the fight. Plaintiff has stated a

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claim for a willful violation of section 605. The second and third factors favor a default

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judgment.

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C.

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Under the fourth Eitel factor, the Court considers the amount of money at stake in

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relation to the seriousness of the defendants’ conduct. Plaintiff seeks $10,000 in statutory

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damages and $50,000 in enhanced statutory damages. Doc. 29 at 10. Defendant’s

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violation was serious. They displayed the program to some 200 patrons, advertised to

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attract the business, and assessed a $20 cover charge. The violation clearly appears to

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have been willful.

The Amount of Money at Stake.

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D.

Possible Dispute Concerning Material Facts.

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Given the sufficiency of the complaint and Defendant’s default, “no genuine

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dispute of material facts would preclude granting [Plaintiff’s] motion.” PepsiCo, Inc.,

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238 F. Supp. 2d at 1177.

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E.

Whether Default Was Due to Excusable Neglect.

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Plaintiff properly served Defendants with the summons and complaint. Docs. 11,

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12, 17. It therefore is unlikely that Defendants’ failure to answer and the resulting default

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were the result of excusable neglect. Gemmel v. Systemhouse, Inc., No. CIV 04-187-

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TUC-CKJ, 2008 WL 65604, at *5 (D. Ariz. Jan. 3, 2008).

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F.

The Policy Favoring a Decision on the Merits.

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“Cases should be decided upon their merits whenever reasonably possible.” Eitel,

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782 F.2d at 1472. But the mere existence of Rule 55(b) “indicates that this preference,

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standing alone, is not dispositive.” PepsiCo, Inc., 238 F. Supp. 2d at 1177 (quotation

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marks and citation omitted). Moreover, Defendants’ failure to answer or otherwise

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respond to the complaint “makes a decision on the merits impractical, if not impossible.”
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Id.

The Court therefore is not precluded from entering default judgment against

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Defendants. See id.; Gemmel, 2008 WL 65604, at *5.

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G.

Conclusion

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Six of the seven Eitel factors favor default judgment, and one factor is neutral.

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The Court concludes that default judgment is appropriate.

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III.

Damages.

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“The general rule of law is that upon default the factual allegations of the

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complaint, except those relating to the amount of damages, will be taken as true.”

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Geddes, 559 F.2d at 560. “A default judgment may be entered without a hearing on

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damages when the amount claimed is capable of ascertainment from definite figures

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contained in the documentary evidence or in detailed affidavits.” Taylor Made Golf Co.

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v. Carsten Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal. 1997).

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Plaintiff does not seek actual damages, but rather statutory damages under 47

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U.S.C. § 605. Under this statute, “the party aggrieved may recover an award of statutory

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damages for each violation of subsection (a) of this section involved in the action in a

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sum of not less than $1,000 or more than $10,000, as the court considers just[.]” Id.

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§ 605(e)(3)(C)(i)(II). The statute further states that when a violation “was committed

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willfully and for purposes of direct or indirect commercial advantage or private financial

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gain, the court in its discretion may increase the award of damages, whether actual or

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statutory, by an amount of not more than $100,000 for each violation.”

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§ 605(e)(3)(C)(ii). In assessing statutory damages, the Court is mindful of the need to

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deter piracy of licensed shows, as well as the importance of not putting restaurants or bars

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out of business for a single violation. See Kingvision Pay-Per-View Ltd. v. Lake Alice

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Bar, 168 F.3d 347, 350 (9th Cir. 1999)

Id.

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Plaintiff requests $10,000 in statutory damages and $50,000 in enhanced statutory

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damages. The requested damages are reasonable. Defendants pirated the program and

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displayed it to approximately 200 patrons. Doc. 18-3 at 8. This was not an accidental

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showing.

The flyer found in Defendants’ restaurant shows that they deliberately
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advertised the fight to attract patrons. The assessed a $20 cover charge for all who

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attended, reflecting an intent to make money off the fight. The Court finds the requested

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damages reasonable given this conduct. See Joe Hand Promotions, Inc. v. Wing Spot

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Chicken & Waffles, Inc., 920 F. Supp. 2d 659, 667-69 (E.D. Va. 2013) (awarding $4,000

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in statutory damages and $27,000 in enhanced damages for displaying a pirated show for

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approximately 40 patrons); J & J Sports Prods., Inc. v. McCausland, No. 1:10-CV-

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01564-TWP, 2012 WL 113786, at *3-4 (S.D. Ind. Jan. 13, 2012) (awarding $10,000 in

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statutory damages and $30,000 in enhanced damages for displaying a pirated show for

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approximately 15 patrons).

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IT IS ORDERED:

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Plaintiff’s motion for default judgment (Doc. 29) is granted.

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2.

Default judgment is entered in favor of Plaintiff and against Defendants

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Antone Fayez Youssef a/k/a Tony Yousseff, d/b/a Cleopatra, and Cleopatra

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Restaurant Incorporated, for violation of 47 U.S.C. § 605, in the amount of

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$60,000.

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3.

Plaintiff may file a motion for attorneys’ fees within 14 days of this order.

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Dated this 30th day of January, 2017.

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