Joe Hand Promotions Incorporated v. Chilleen et al

Filing 26

ORDER granting 23 Plaintiff's Motion for Summary Judgment to the extent that the plaintiff is awarded the sum of $ 9,000.00 from defendants Donna Jean Chilleen and Kid Chilleen Promotions, Inc. The Clerk shall enter judgment for the plaintiff. The plaintiff shall file its request for attorney'sfees and costs in compliance with this Court's Local Rules. Signed by Senior Judge Paul G Rosenblatt on 5/13/15.(LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Joe Hand Promotions, Inc.,
Plaintiff,

11
12

vs.

13

Donna Jean Chilleen, et al.,

14

Defendants.

15

)
)
)
)
)
)
)
)
)
)
)

No. CV-13-08166-PCT-PGR
ORDER

16

Pending before the Court is Plaintiff’s Motion for Summary Judgment (Doc.

17

23), to which the defendants, who are represented by counsel, have failed to file any

18

response in opposition. Having considered motion in light of the relevant record, the

19

Court finds that there is no genuine dispute as to any material fact and that the

20

plaintiff is entitled to the entry of judgment in its favor as a matter of law pursuant to

21

Fed.R.Civ.P. 56.

22

Background

23

The complaint, filed on July 1, 2013, alleges that defendants Donna Jean

24

Chilleen, individually and d/b/a Kid Chilleen’s Bad Ass BBQ, and Kid Chilleen

25

Promotions, Inc., d/b/a Kid Chilleen’s Bad Ass BBQ showed the pay-per-view

26

program Ultimate Fighting Championship 148: Anderson Silva v. Chael Sonnen (“the

1

Program”), on July 7, 2012, at the defendants’ restaurant located in Black Canyon

2

City, Arizona 85324, without having purchased a commercial license to do so from

3

the plaintiff, which held the exclusive nationwide commercial distribution (closed-

4

circuit) rights to the Program. The complaint alleges three claims: violation of 47

5

U.S.C. § 605 (Count I), violation of 47 U.S.C. § 553 (Count II), and conversion

6

(Count III). The defendants, through counsel, filed their answer to the complaint on

7

September 5, 2013; they also participated in the filing of the Joint Case Management

8

Report on January 13, 2014, but their counsel thereafter failed to appear for the

9

Scheduling Conference.

10

interrogatories on the defendants on January 19, 2014, but the defendants never

11

responded to them; one set of the admissions requests was directed to defendant

12

Chilleen and one set was directed to defendant Kid Chilleen Promotions, Inc. The

13

plaintiff filed its summary judgment motion on September 29, 2014, but the

14

defendants also failed to respond to it in any manner.

15

Discussion

The plaintiff served its requests for admissions and

16

Although the complaint alleges federal claims pursuant to 47 U.S.C. § 553 and

17

§ 605, the plaintiff is only seeking summary judgment damages under § 605.1 The

18

complaint alleges in part in Count I, the § 605 claim, that the defendants “did

19

unlawfully intercept, receive, publish, divulge, and/or exhibit the Program at the time

20

of its transmission” at their commercial establishment, and that they did so “willfully

21

and for purposes of direct and/or indirect commercial advantage and/or private

22

financial gain.” All of the relevant facts necessary to establish the defendants’ liability

23

under § 605 have been conclusively established as a result of their failure to respond

24
25
26

1

The plaintiff also does not seek any damages for its conversion claim.
-2-

1

to the requests for admissions, including that they unlawfully intercepted the

2

Program without the plaintiff’s authorization and that they did so willfully and for

3

financial gain. See Fed.R.Civ.P. 36(a)(3); Conlon v. United States, 474 F.3d 616,

4

621 (9th Cir.2007) (“Unanswered requests for admissions may be relied on as the

5

basis for granting summary judgment.”) The plaintiff is therefore entitled to an award

6

of § 605 damages.

7

Section 605 provides for statutory damages per violation “of not less than

8

$1,000 or more than $10,000, as the court considers just.” § 605(e)(3)(C)(i)(II).

9

Section 605 further permits an additional award of enhanced damages of up to

10

$100,000 if “the court in its discretion” determines that the defendant willfully violated

11

the statute “for purposes of direct or indirect commercial advantage or financial

12

gain.” 47 U.S.C. § 605(e)(3)(C)(ii). The plaintiff seeks an award of $7,800 in

13

statutory damages and $31,200 in enhanced statutory damages, for a total statutory

14

damages award of $ 39,000.

15

The plaintiff’s investigator, Gary W. Turner, states the following facts in his

16

affidavit that are relevant to the issue of § 605 damages: that he spent twenty-three

17

minutes in the defendants’ establishment on the evening of July 7, 2012, that there

18

were approximately forty-five people in the establishment, that the establishment had

19

the capacity to hold between 350-400 people, that the only televisions were located

20

in a separate bar area and there were three televisions in that area, one of which he

21

estimated to have a 48" screen and two smaller sets, that all of the televisions were

22

showing the UFC 148 telecast, that there were approximately twenty people in the

23

bar area, and that the establishment had a satellite dish on the roof.

24

investigator says nothing about having to pay any cover charge or that the Program

25

was advertised in any manner in the establishment, the defendants, through their

26

-3-

While the

1

failure to respond to the requests for admissions, have admitted that they had a

2

cover charge and that they advertised the showing of the Program. The plaintiff has

3

also submitted evidence that it would have cost the defendants $2,600 to purchase

4

a license to legally show the Program.

5

As the plaintiff correctly states, the Court has considerable discretion in

6

awarding § 605 damages. Based on the evidence presented, the Court concludes

7

that statutory damages pursuant to § 605(e)(3)(C)(i)(II) in the amount of $ 4,000 is

8

a just award.

9

The Court further concludes that the plaintiff is entitled to a discretionary

10

award of enhanced damages because the evidence establishes that the defendants

11

showed the Program for commercial advantage or for private financial gain. In light

12

of the defendants’ deemed admissions, and in light of the supporting affidavit of Joe

13

Hand, Jr., the plaintiff’s president, the Court accepts that the defendants must have

14

taken specific wrongful actions in order to intercept the plaintiff’s encrypted program.

15

The plaintiff has also presented other evidence of the defendants’ willfulness in that

16

the establishment advertised the fight, required patrons to pay a cover charge, and

17

had three televisions showing the Program. See Kingvision Pay-Per-View, Ltd. v.

18

Guzman, 2008 WL 1924988, at *3 (D.Ariz. April 30, 2008) (“Courts use a variety of

19

factors in determining whether a defendant’s conduct is subject to enhanced

20

damages for willfulness under § 605, including prior infringements, substantial

21

unlawful monetary gains, significant actual damages to the plaintiff, the defendant’s

22

advertising of the broadcast, and the defendant’s charging a cover charge or

23

premiums for food and drinks during the broadcast.”) In light of the evidence, the

24

Court will award $5,000 in enhanced damages pursuant to § 605(e)(3)(C)(ii).

25

The plaintiff also requests in its complaint and in its summary judgment motion

26

-4-

1

that it be awarded its reasonable attorney’s fees and relevant costs pursuant to §

2

605. The plaintiff is awarded its costs and fees because § 605(e)(3)(B)(iii) provides

3

that the Court “shall direct the recovery of full costs, including awarding reasonable

4

attorneys’ fees to an aggrieved party who prevails.” The plaintiff is directed to comply

5

with LRCiv 54.1 and LRCiv 54.2 in applying for its costs and fees. Therefore,

6

IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 23) is

7

granted pursuant to Fed.R.Civ.P. 56 to the extent that the plaintiff is awarded the

8

sum of $ 9,000.00 from defendants Donna Jean Chilleen and Kid Chilleen

9

Promotions, Inc. pursuant to 47 U.S.C. § 605. The Clerk of the Court shall enter

10

judgment for the plaintiff accordingly.

11
12
13

IT IS FURTHER ORDERED that the plaintiff shall file its request for attorney’s
fees and costs in compliance with this Court’s Local Rules.
DATED this 13th day of May, 2015.

14
15
16
17
18
19
20
21
22
23
24
25
26

-5-