Joe Hand Promotions Inc v. Be et al

Filing 24

First MOTION for Default Judgment by the Court as to filed by Joe Hand Promotions Inc. Motion Hearing set for 9/22/2011 01:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 10/6/2011. Replies due by 10/13/2011. (Attachments: # 1 Supplement Memorandum, # 2 Proposed Order, # 3 Declaration)(Davoli, David) (Filed on 8/17/2011)

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David J. Davoli, Esq. (DD-9073)
DAVOLI LAW FIRM
207 West 25th Street, Suite 400
New York, NY 10001
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
----------------------------------------------------x
JOE HAND PROMOTIONS, INC.,
Plaintiff,
Case No.: CDC-01333-LHK
vs.

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PETE BE, Individually, and as an officer,
director, shareholder, and/or principal of
DA KINE CAFÉ, INC. d/b/a
DA KINE CAFÉ
153 E. Fremont Avenue
Sunnyvale, CA 94087,

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MEMORANDUM OF
POINTS AND AUTHORITIES
IN SUPPORT OF PLAINTIFF’S
APPLICATION FOR DEFAULT

Defendants.
----------------------------------------------------x

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Plaintiff, Joe Hand Promotions, by and through its attorney of record, David J. Davoli,

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Esq., files the instant Memorandum of Points and Authorities in support of Plaintiff‟s

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Application for Default Judgment against Defendants, Pete Be and Da Kine Cafe, Inc. d/b/a Da

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Kine Café, (“Defendants”), and in support thereof avers as follows:
A. INTRODUCTION

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This is an “Anti-Piracy” case involving the Federal Communications Act of 1934, as

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amended (the “Communications Act”). The Communications Act protects against the piracy of

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radio and television signals. See 47 U.S.C. §§ 5531 and 605.2 In the case sub judice, the

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47 U.S.C. § 553 provides, inter alia, that:
No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system,
unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.
MEMORANDUM OF POINTS AND AUTHORITIES – 1

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averments that Defendants, Pete Be and Da Kine Cafe, Inc. d/b/a Da Kine Cafe (“Defendants”),

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illegally intercepted the closed-circuit telecast of “UFC 119: Mir v. Cro Cop” Broadcast,

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including all undercard bouts and the entire television broadcast, scheduled for September 25,

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2010, (hereinafter referred to as the “Broadcast”), and exhibited the Event in Defendants‟

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Establishment, “Da Kine Café” (the “Establishment”), without paying the licensing fee to

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Plaintiff, are deemed admitted.

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B. PROCEDURAL HISTORY

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This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 47 U.S.C. §§ 553 and 605

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and venue is proper pursuant to 28 U.S.C. § 1391(b). On March 21, 2011, Plaintiff filed the

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Complaint against Defendant. 3 For service on Defendants, Plaintiff refers the Court to Doc.

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Nos. 5, 6 and 7. Defendants‟ answer or other responsive pleadings were due before April 6,

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2011. No response of any kind was filed by Defendants in this matter.
Plaintiff filed a Request for Entry of Default on Defendant on June 13, 2011. Thereafter,

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on June 17, 2011 the Court entered a Default. Plaintiff now files the instant Application for
Default Judgment.

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47 U.S.C. § 605 provides, inter alia, that:
[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence,
contents, substance, purport, effect or meaning of such intercepted communication to any person. No person not being entitled
thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any
information therein contained) for his own benefit or for the benefit of another not entitled thereto.
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Unless otherwise noted, Plaintiff requests that the Court take judicial notice of the matters set out in this Procedural History
section, pursuant to FED. R. EVID. 201. See Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 (5th Cir. 1978) (“Courts are
particularly apt to take notice of material in court files.”) (citing WEINSTEIN & BERGER, WEINSTEIN’S EVIDENCE 48
(Supp. 1977)); Walker v. Blackwell, 360 F.2d 66, 71 (5th Cir. 1966) (Coleman, J., dissenting) (“It is elemental that we are
entitled to take judicial notice of our own records and files.”); Huddleston v. Nelson Bunker Hunt Trust Estate, 102 B.R. 71, 73
(N.D. Tex. 1989) (noting that district court may judicially notice its own files and records) (citing Aloe Crème Laboratories, Inc.
v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970)); Thomas v. Esquivel, 959 F. Supp. 396, 398 (N.D. Tex. 1997) (Fish, J.)
(stating that the court can take judicial notice of its own records); accord Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th
Cir. 2000) (“[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of
public record.”).
MEMORANDUM OF POINTS AND AUTHORITIES – 2

C. UNDISPUTED EVIDENCE

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Plaintiff provides the following evidence to support a Final Default Judgment against

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Defendant:

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Exhibit “A”: Attached as Exhibit “A” is the Affidavit of Joe Hand, Jr., President of Joe

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Hand Promotions, Inc., forming the basis for an award of statutory damages under the

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Communications Act. Additionally, the Affidavit includes the following exhibits:

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1. A copy of the Distributorship Agreement (redacted) between Plaintiff and the
promoter of the Event, providing Plaintiff with the exclusive right to license
the exhibition of the Event to commercial establishments such as Defendant‟s
Establishment;

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2. A copy of the Affidavit of Tad Whitaker (“Plaintiff‟s Investigator”) an eyewitness, who after viewing an advertisement of the Event, entered into
Defendant‟s Establishment on the night of the Event and observed the Event
being exhibited to approximately thirty two (32) patrons at Defendant‟s
Establishment on 3 large screen televisions; and

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3. Rate Card for the Event

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Exhibit “B”: Attached as Exhibit “B” is the Affidavit of David J. Davoli establishing

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the reasonable and necessary attorneys‟ fees for prosecution of this action, as well as

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contingent awards of attorney‟s fees for post-trial, appellate, and collection legal services.

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D. UNDISPUTED FACTS

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Pursuant to Plaintiff’s Original Complaint4 and the evidence presented, the following

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facts are established:

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By Defendant’s default, the Court should accept the well pleaded allegations of facts in the Complaint. See e.g., Nishimatsu
Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200 (5th Cir. 1975); Kingvision Pay-Per-View, Ltd. v. Guerra, 2007 U.S. Dist.
LEXIS 98667 at *3 (S.D. Tex. Oct. 12, 2007) (Miller, J.) (“Given the defendant's failure to answer the complaint in a timely
manner, the court has the authority to accept all well-pleaded facts in plaintiff's complaint as true and to award the relief sought
by the plaintiff in this action.”); See also, J&J Sports Prods. v. Alvarez, 2009 U.S. Dist. LEXIS 89602 at * 3, f n. 1 (S.D.N.Y.
Sept. 10, 2009) (Allegations in the complaint on liability “must be taken as true.”).
MEMORANDUM OF POINTS AND AUTHORITIES – 3

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1. Defendant operated the Establishment on the night of the Event. See Plaintiff‟s
Original Complaint (Doc. 1) at ¶ 4- ¶14.

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2. Plaintiff is in the business of marketing and licensing commercial exhibitions of payper-view prizefight events. See Exhibit “A” at ¶3.
3. Plaintiff possessed the proprietary rights to exhibit and sublicense the right to exhibit
the Event. See id.
4. Through a licensing agreement with the promoter of the Event, Plaintiff was licensed
to exhibit the Event at closed circuit locations, such as theaters, arenas, clubs,
lounges, restaurants and other commercial establishments throughout the State of
California. See Exhibit “A-1”.

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5. In California, the Event was legally available to commercial establishments only
through an agreement with Plaintiff. See Exhibit “A” at ¶3.
6. In order to safeguard against the unauthorized interception or receipt of the Event, the
interstate satellite transmission of the Event was electronically coded or scrambled
and was not available to or intended for the use of the general public. If a commercial
establishment was authorized by Plaintiff to receive the respective Event, the
establishment was provided with the electronic decoding equipment and the satellite
coordinates necessary to receive the signal or the establishment‟s cable or satellite
provider would be notified to unscramble the reception, depending upon the
establishment‟s equipment and provider. See id. at ¶9.
7. Authorized commercial establishments which contracted with Plaintiff were required
to pay to Plaintiff a sublicense fee to receive the Event. This sublicense fee is
typically based on the capacity of the establishment. Here, Defendants‟ Establishment
had an occupancy code of approximately 90 people, which based on the rate card
results in a fee of $1,100.00 See id. at ¶8

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8. On the date of the Event, without authorization, Defendant intercepted and received
or assisted in the interception and receipt of the transmission of the Event, and
broadcast or assisted in the broadcast of the Event to the patrons of the Defendant‟s
Establishment. On the night of the Event, Plaintiff‟s Investigator, who observed the
Event being telecast to at least 38 patrons at Defendant‟s Establishment on five large
screen televisions. See id.; Exhibit “A-2”.
9. Defendant could not have obtained the transmission of the Event had Defendant not
undertaken specific wrongful actions to intercept, receive and/or exhibit the telecast
of the Event. See Exhibit “A” at ¶9.

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MEMORANDUM OF POINTS AND AUTHORITIES – 4

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E. ARGUMENTS & AUTHORITIES
1. THE COMMUNICATIONS ACT
The unauthorized interception and broadcast of either satellite or cable transmissions

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violate both 47 U.S.C. §§ 553 and 605.5. Accordingly, all acts of unlawful interception, receipt

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and broadcast of the signal of the Event were a blatant violation of the Federal Communications

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Act. An opinion from the Southern District of Texas outlines the Congressional intent to protect

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against unauthorized telecasts5:

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As an amendment and supplement to the Federal Communications Act, „Congress

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enacted the Cable Communications Policy Act of 1984 to address „a problem

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which is increasingly plaguing the cable industry—the theft of cable service.‟ The

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legislative history associated with section 553 and the amendments to section 605

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reveals [sic] that one of Congress‟s principal objectives was to discourage theft of

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cable services. Thus, Congress enacted a variety of penalties and remedies to

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„protect the revenue of television cable companies from unauthorized reception of

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their transmissions.‟

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Garden City Boxing Club, Inc. v. Al-Waha Enterprises, Inc., 219 F. Supp. 2d 769,

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773 (S.D. Tex. 2002) (citations omitted).

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See, e.g.:
• International Cablevision, Inc. v. Sykes, 75 F.3d 123, 131-33 (2d Cir.), cert. denied, 519 U.S. 929 (1996) (holding that
claims of unauthorized broadcasts of cable television transmissions may be brought under both 47 U.S.C. §§ 553 and 605);
• KingVision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d 438, 442 (S.D.N.Y. 2001) (“[C]ourts in this
district have regularly recognized that the telecasts licensed by the plaintiff are covered by the provisions of Section 605”);
• Entertainment by J & J, Inc. v. Nina‟s Rest. & Catering, 2002 U.S. Dist. LEXIS 8908, 2002 WL 1000286, at *2-3 (S.D.N.Y.
May 9, 2002) (determining that defendant‟s unauthorized interception and broadcast of a boxing match violated Sections 553 and
605 of the Federal Communications Act);
• KingVision Pay-Per-View, Ltd v. 2182 La Caridad Rest., Inc., 2002 U.S. Dist. LEXIS 6934, at *8 (S.D.N.Y. April 18, 2002)
(holding that defendant‟s unauthorized interception and broadcast of a boxing match violated Sections 553 and 605 of the Federal
Communications Act);
• Time Warner Cable of N.Y. City v. Taco Rapido Rest., 988 F. Supp. 107, 110 (E.D.N.Y. 1997) (determining that both
provisions applied when Defendants illegally intercepted and broadcast a pay-per-view boxing event); and
• Home Box Office v. Gee-Co, Inc., 838 F. Supp. 436, 439 (E.D. Mo. 1993) (finding that defendant's unauthorized interception of
cable communications services violated Section 553 and its unauthorized display of a satellite broadcast boxing event violated
Section 605, where both violations were committed through the use of a satellite receiver with a “pirate chip” installed).
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In an effort to deter the unlawful and unauthorized telecasts of events such as that in the

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instant matter, Congress specifically drafted the Communications Act to provide “both
prosecutor[s] and civil plaintiffs [with] the legal tools they need to bring piracy under control.”

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See TRADEMARK & SATELLITE ACTS, Pub.L. No. 100-667, 1988 U.S.C.C.A.N. (102 Stat.),

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5577, 5658; see also United States v. Scott, 783 F. Supp. 280, 281 (N.D. Miss. 1992). As a

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result, the Communications Act provides for severe penalties, both civil and criminal,6 for those

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who intercept, receive and/or broadcast protected communications. See Scott, 783 F. Supp. at

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281. Moreover, Congress has equated a violation of the Communications Act to theft of service.

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See TRADEMARK & SATELLITE ACTS, supra at 5642-43. In 1988, in an effort to further

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deter theft, Congress amended the Communications Act to provide for more severe penalties for

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violations. See id. at 5657.
Accordingly, a party aggrieved under the Communications Act7 may recover for violation

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of Section 605.8 See 47 U.S.C. § 553(c)(3)(A)(ii) and 47 U.S.C. § 605(e)(3)(C)(i)(II).
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Moreover, if the Court finds that the violation of the Communications Act was committed

“willfully and for purposes of direct or indirect commercial advantage or private financial
gain...,” the Court may award additional damages of up to $100,000.00 for each violation under

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47 U.S.C. § 605(e)(3)(C)(ii) and $50,000.00 under § 553(c)(3)(B). Furthermore, pursuant to 47

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U.S.C. § 605(e)(3)(B)(iii), a Court shall award full costs, including reasonably attorneys‟ fees.

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Defendants owned and managed the Establishment and therefore could not have obtained

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the transmission of the Event absent specific wrongful actions to intercept and/or receive and

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The criminal penalties include fines and imprisonment. See 47 U.S.C. §§ 553(b)(1) and (2); 47 U.S.C. § 605(e)(1) and (2).
See 47 U.S.C. § 553(C)(1) and 47 U.S.C § 605(D)(6) (both statutes permit any person aggrieved by a violation of the statute to
bring a civil action to recover damages).
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Spencer Promotions, Inc. v. 5th Quarter Enterprises, Inc., No. C 94-0988 CW, 1996 U.S. Dist. LEXIS 8686, at *19 (N.D. Ca.
Feb. 21, 1996) (Section 553 not meant to disturb the remedies under Section 605); See also Don King Productions/KingVision v.
Maldonado, No. C-97-3550 WHO MED, 1998 U.S. Dist. LEXIS 20165, at *4-6 (N.D. Ca. Dec. 11, 1998); HBO v. Gee-Co., Inc.,
838 F. Supp. 436 (E.D. Mo. 1993). Case 4:09-cv-03734 Document 10 Filed in TXSD on 03/19/10 Page 8 of 22
MEMORANDUM OF POINTS AND AUTHORITIES – 6

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broadcast the telecast. In order for an unauthorized commercial establishment to receive a

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broadcast such as the Event, there must be some wrongful action, such as using an unauthorized

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decoder, obtaining cable or satellite service and illegally altering the cable or satellite service to

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bring the signal of the Event into the establishment or moving an unauthorized decoder or

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satellite card from its authorized location to the establishment. See Exhibit “B” the Affidavit of

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David J. Davoli at ¶¶ 7 and 10; See Exhibit “A” Affidavit of Joe Hand Jr., at ¶ 9; See also, e.g.,

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KingVision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d 438, 442 (S.D.N.Y. 2001) (In

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order to access the telecast, it would have been necessary to use an unauthorized decoder, to

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illegally divert cable service or improperly relocate an authorized decoder. “In any of the these

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scenarios, the illegality of the action would have been apparent to the perpetrator”); see also

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Time Warner Cable v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999)

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(when finding willfulness the court stated, “There can be no doubt that the violations were

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willful and committed for purposes of commercial advantage and private gain. Signals do not

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descramble spontaneously, nor do television sets connect themselves to cable distribution

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systems”).

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To establish liability, all Plaintiff must show is that the Event was shown in Defendants‟

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Establishment and that such exhibition was not authorized by Plaintiff. See KingVision Pay-Per-

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View, Ltd. v. Lake Alice Bar, 168 F.3d 347, 349 (9th Cir. 1999) (A finding that the bar showed a

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portion of an event was “the only finding that matters. It compels judgments in favor of

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KingVision”). Given the deemed admission of Plaintiff‟s Complaint allegations, coupled with

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the evidence of the broadcast, it is clear that Plaintiff has met its burden with respect to liability
in this matter.

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MEMORANDUM OF POINTS AND AUTHORITIES – 7

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2. STATUTORY DAMAGES UNDER 47 U.S.C. § 605(E)(3)(C)(I)(II)
As its first basis for relief, Plaintiff requests statutory damages pursuant to 47 U.S.C. §
605(e)(3)(C)(i)(II). See Cable/Home Communication Corp. v. Network Productions, Inc., 902
F.2d 829, 850 (11th Cir. 1990).9 Pursuant to the Communications Act, the amount of statutory
damages to which Plaintiff is entitled for the violation shall be not less than $1,000.00 and not

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more than $10,000.00. For the reasons set forth herein, Plaintiff seeks statutory damages

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pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) against Defendant in the amount of $10,000.00 for

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Defendant‟s violation of the Communications Act.
As stated above, and supported by the Affidavits attached hereto, on date of the Event,
Defendants or Defendants‟ agents, servants and/or employees intercepted and received or

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assisted in the interception and receipt of the live telecast of the Event. Defendants then

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broadcast or assisted in the broadcast of the Event to the patrons at Defendants‟ Establishment

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for viewing therein. The patrons at Defendant‟s Establishment purchased meals and/or drinks

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while viewing the Event. See the Affidavit of Tad Whitaker, Exhibit “A-2”. The Defendants

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broadcast the Event to the patrons at Defendants‟ Establishment without paying any sublicense

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fees to Plaintiff.
Statutory damages are appropriate where actual damages are difficult to prove. See
Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 519 F. Supp. 730, 732 (S.D.N.Y. 1981);

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Lottie Jonlin Thomas Trust v. Crown Publishers, Inc., 592 F.2d 651, 657 (2d Cir. 1978). The

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lack of adequate proof of any particular element causes the Court to rely, within its discretion, on

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the statutory limitations. See F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233
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It is in the Plaintiff‟s discretion whether to elect to receive actual or statutory damages. Id. See also, Garden City
Boxing Club, Inc. v. Al-Waha Enterprises, Inc., Civil Action No. H-01-2514, 2002 U.S. Dist. LEXIS 16247, at *17 (S.D. Tex.
July 24, 2002) (“A majority of the courts that have dealt with a violation of both sections of the FCA award damages only under
Section 605 because that provision allows for greater recovery for plaintiffs.”) (citations omitted).
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(1952). In the instant case, as more fully discussed below, it would be impossible to determine

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the full extent of the profits lost by Plaintiff and the additional damages sustained by Plaintiff as

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a result of Defendant‟s unlawful actions. Accordingly, Plaintiff elects to receive statutory
damages.
As indicated above, the amount of statutory damages to which Plaintiff is entitled for

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each violation of this section shall be no less than $1,000.00 nor more than $10,000.00 for each

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violation. Id. Plaintiff respectfully requests that this Court award up to the maximum $10,000.00

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permissible under the statute.
Before addressing cases that have awarded damages under this section, it is important to
note the specific facts of this case. As noted by the uncontroverted Affidavit of Tad Whitaker,

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Defendant broadcasted the Event on 3 large screen televisions. See Exhibit “A-2.” The capacity

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of Defendant‟s establishment was approximately 75 people, and three separate head counts

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while Mr. Whitaker was present revealed the total number of patrons (at various times) to be

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approximately 32 people. Da Kine Café did not require a cover charge to enter the establishment.

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Id. Even in such cases of commercial signal piracy where there has been no egregious

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circumstances noted, the court has the discretion to award significant damages.
For instance, in the case of Joe Hand Promotions, Inc. v. Tidmarsh, 2009 WL 1845090
(E.D.Cal. 2009) the Court awarded damages under both sections 605 and 553. While Plaintiff

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agrees that the Tidmarsh Court did not undertake an analysis of the viability of awarding

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damages under both sections, Plaintiff does however request that, to the extent possible, this

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Court look to the award made under section 605 in that case to take into account the aggregate

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award as representative of an appropriate punishment (While bearing in mind of course, that this

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Court may not award more than $10,000.00 per statutory violation). In Tidmarsh:

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MEMORANDUM OF POINTS AND AUTHORITIES – 9

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Id. at *3.

[T]he summons and complaint were properly served upon
Defendant, her default was properly entered, and the complaint is
sufficiently well-pled. By her default, Defendant has admitted to
willfully violating the referenced statutes for purposes of
commercial advantage. Although deterrence of future violations
are important objectives of the statutes, the facts before the Court
indicate that Defendant's establishment was not large, with a
maximum capacity of approximately 50 people. . . . Plaintiff's
investigator . . . noted it contained . . . a large television on one
side of the establishment and a second, much smaller, television on
the opposite side. [He] conducted three head counts while he was
present: 23/27/29. He viewed the program on one television, a 55″
screen located in the right corner of the establishment. Given the
relatively small impact of Defendant's actions, the Court finds that
the amount of requested damages should be reduced.

Even though the Tidmarsh court found a “small impact,” it nonetheless awarded the
$10,000.00 maximum allowed under section 605(e)(3)(c)(i)(II). Id. The Tidmarsh Court also
awarded an additional $10,000.00 in enhanced damages (the Court did not specify a division of

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this award between sections 605 and 553). Id.
A similar analysis, leading to a similar result, was utilized in J & J Sports Productions,
Inc. v. Esquivel, 2008 WL 4657741 (E.D.Cal. 2008), where the district court found:
Here, the summons and complaint were properly served upon
Defendant, her default was properly entered, and the complaint is
sufficiently well-pled. By her default, Defendant has admitted to
willfully violating the referenced statutes for purposes of
commercial advantage. Although deterrence of future violations
are important objectives of the statutes, the facts before the Court
indicate that Defendant's establishment was not large, with a
maximum capacity of 75 people. . . . Plaintiff's investigator . . .
conducted three head counts while he was there, which were
35/35/35. He viewed the program on one television, a 27″ screen
located on a wall of the restaurant. Given the relatively small
impact of Defendant's actions, the Court finds that the amount of
requested damages should be reduced.
Id. at 3 (emphasis added).

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MEMORANDUM OF POINTS AND AUTHORITIES – 10

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Like Tidmarsh, the Esquivel court awarded total damages of $30,000.00, $10,000.00
under both sections 553 and 605 and an additional $10,000.00 in enhanced damages (the Court
did not specify a division among the statutes). Id.
Another case in which a “minor” violation led to a maximum statutory damages award
was J & J Sports Productions, Inc. v. Flores, 2009 WL 1860520, *2 (E.D.Cal. 2009). In Flores,

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there was no cover charge, no proof that the Defendants profited from their actions, and the three

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head counts were 35/35/35. Once again, this is comparable to the situation involving Plaintiff

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herein (no cover charge and three head counts of 35, 37 and 39); see also J & J Sports

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Productions, Inc. v. George, 2008 WL 4224616 (E.D.Cal. 2008) (Maximum statutory damages

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awarded where establishment had thirty person capacity and no more than 20 people watching

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event at any given time; event was broadcast on one 27” television, and there was no cover

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charge).

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Other district courts in the United States have awarded the statutory maximum under

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section 605 without regard to the underlying facts, but simply because of the unlawful

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interception and the need for significant deterrence. For example, in Kingvision Pay-Per-View,

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Ltd. v. Dosani, 2006 WL 3316988 (S.D.Tex. 2006), the court held:

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Id. at 2.2

Several factors present in this case favor granting the maximum
statutory damages of $10,000.00, as requested. The record
establishes that defendant broadcast the event and failed to appear
in this suit. The record establishes the use of an unlawful device,
making the violations willful. These factors, the difficulty in
detecting unlawful interception, the widespread problem of piracy,
the projected loss to plaintiff, and the need for an award sufficient
to deter future piracy by defendant and others, weigh in favor of
granting maximum statutory damages. Plaintiff has shown the
basis for an award of $10,000.00 in damages under section
605(e)(3)(C)(i)(II).

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The same factors that led the Dosani Court to award $10,000.00 in statutory damages are

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present here. See also J & J Sports Productions, Inc. v. Lopez, 2008 WL 2915109, *4 (E.D.Cal.

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2008) (“The Court also recognizes that deterrence of future violations is a significant objective of

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§§ 553 and 605. Accordingly, the Court will recommend that Plaintiff's application be granted

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and that damages in the sum of $30,000.00 be awarded to Plaintiff.”); J & J Sports Productions,

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Inc. v. Rubio, 2008 WL 4360883, *2 (S.D.Tex. 2008) (“Several factors . . . the difficulty in

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detecting unlawful interception, the widespread problem of piracy, the projected loss to Plaintiff,

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and the need for an award sufficient to deter future piracy by Defendant and others, weigh in

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favor of granting maximum statutory damages. The Plaintiff has shown the basis for an award of

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$10,000.00 in damages under section 605(e)(3)(C)(i)(II)”); Kingvision Pay-Per-View Ltd. v.

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Gadson, 2007 WL 2746780, *2-3 (M.D.N.C. 2007) (Awarding $10,000.00 in statutory damages

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and $10,000.00 in enhanced damages against a commercial establishment with a seating capacity

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of 40, 27 patrons viewing the event on 1 large screen television, and a five dollar cover charge.).

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In Kingvision, the “establishment contained seating for approximately 200 people,
approximately 34 people were present, and each paid a cover charge of $3.00.” Id. at 2. These
factors, however, were not relevant to the Court‟s award of statutory damages but, rather, as
discussed below, the award of enhanced damages.”
The above cases establish that even where the violations do not appear particularly

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egregious, maximum statutory damages may be awarded. Plaintiff respectfully requests that this

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Court consider these cases when determining whether to award Plaintiff up to the maximum

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permissible under statute.

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MEMORANDUM OF POINTS AND AUTHORITIES – 12

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3. “ENHANCED DAMAGES” UNDER 47 U.S.C. § 605(E)(3)(C)(II)
Next, Plaintiff respectfully and additionally requests enhanced damages pursuant to
section 605(e)(3)(C)(ii). Section 605(e)(3)(C)(ii) permits this Court, in its discretion, to award up

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to $100,000.00 in additional damages where “the violation was committed willfully and for the

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purposes of direct or indirect commercial advantage or private financial gain . . . .” 47 U.S.C. §

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8

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605(e)(3)(C)(ii).
The conclusion that the actions of defendant in cases such as these are “willful” has been
clearly established. See Entertainment By J & J, Inc. v. Al-Waha Enterprises, Inc., 219

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F.Supp.2d 769, 776 (S.D. Tex. 2002) (“Based on the limited methods of intercepting closed-

13

circuit broadcasting of pay-per-view events and the low probability that a commercial

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establishment could intercept such a broadcast merely by chance” courts have held the

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unauthorized display of such an event willful); see also Garden City Boxing Club, Inc. v.

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Paquita's Café, Inc., 2007 WL 2783190 at *5 (S.D.N.Y. 2007); J & J Sports Productions, Inc. v.

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Garcia, 2009 WL 2567891, *4 (S.D.Tex. 2009) (“The Defendant must have engaged in a

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deliberate act since signals do not descramble spontaneously, nor do television sets connect

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themselves to cable distribution systems.‟”) quoting Time-Warner Cable of N.Y. v. Googies

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Luncheonette, Inc., 77 F.Supp.2d 485, 490 (S.D.N.Y. 1999); Joe Hand Promotions, Inc. v.

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Martinez, 2008 WL 4619855, *6 (S.D.N.Y. 2008) (“The acquisition of an encrypted signal by

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defendant undoubtedly required some affirmative action that imply both a degree of technical

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sophistication and a desire to obtain a benefit to which defendant was not entitled.”).

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In addition, the fact that such an interception is done for commercial advantage is also

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firmly decided. “A defendant who intercepts signals and broadcasts programming without

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authorization, in a place of business where certain events are shown to the public‟ is generally

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MEMORANDUM OF POINTS AND AUTHORITIES – 13

1

held to have acted willfully and for purposes of commercial advantage.” Garden City Boxing

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Club, Inc. v. Batista, 2007 WL 4276836, *5 (E.D.N.Y. 2007); citing Am. Cablevision of Queens

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v. McGinn, 817 F.Supp. 317, 320 (E.D.N.Y. 1993) (further citation omitted); see also Joe Hand

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Promotions, Inc. v. Garcia, 546 F.Supp.2d 383, 386 (W.D.Tex. 2008) (“Because of the extreme

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unlikelihood that Defendant could inadvertently have acquired the signal to display the fight,

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coupled with its failure to file an answer denying Plaintiff's allegations on this issue, the Court

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finds that Defendant [acted] willfully and for purposes of direct or indirect commercial

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advantage.”) (statutory citation omitted).
Finally, “the court may draw an inference of willfulness from a defendant's failure to
appear and defend an action in which the plaintiff demands increased statutory damages based on

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allegations of willful conduct.” Garden City Boxing Club, Inc. v. Frezza, 476 F.Supp.2d 135,

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138 (D. Conn. 2007); quoting J & J Sports Productions, Inc. v. Drake, 2006 WL 2927163, *5

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(E.D.N.Y. 2006).

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With respect to the proper amount of enhanced damages, the case of Joe Hand
Promotions, Inc. v. Haddock, 2009 WL 2136117 (E.D.Cal. 2009) is instructive. In Haddock, the
district court awarded a total of $50,000.00 in damages to Plaintiff. Id. at 2. The court awarded

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$25,000.00 under both sections 553 and 605; while not specifically broken down, at a minimum,

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the enhanced damages must have been $15,000.00. See 47 U.S.C. § 605(e)(3)(c)(i)(II) (setting

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maximum statutory award at $10,000). In Haddock, the Court found that because the television

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was broadcast on five televisions and because the establishment was located in a “relatively

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urban city” with a population in excess of 100,000, the impact was more than minimal. Id. Here,

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the Event was being displayed on two 50 inch televisions when Martin Dante, Plaintiff‟s

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investigator, was present.

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MEMORANDUM OF POINTS AND AUTHORITIES – 14

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Next, the case of Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F.Supp.2d 1179
(D.Colo. 2008), also provides a good analogy. In Gutierrez there were 24 patrons in the
establishment and the court awarded $5,000.00 in statutory damages under section

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605(e)(3)(c)(i)(II). Id. at 1184. In determining the appropriate enhanced damages award, the

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district court noted that the actions of defendant were willful, the problems of piracy were

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pervasive, and that the award needed to serve as a deterrent. Id. at 1185. The Court, however,

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also found certain factors did not support a substantial damages award. Id. (emphasis added).

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The Court observed that, “Plaintiff presents no evidence of prior violations; Plaintiff provides no

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evidence of significant earnings by Defendant that night; Plaintiff's loss of revenue for one

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establishment is not significant; there is no evidence of advertising to entice a larger crowd; the

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restaurant did not have a cover charge; and there is no evidence that the restaurant charged a

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premium for food and drinks that night.” Id. After taking all of these factors that militate against

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enhanced damages into account, the court still awarded an additional $15,000.00. Id.

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In Garden City Boxing Club, Inc. v. Frezza, 476 F.Supp.2d 135 (D. Conn. 2007), the
district court noted that the violations were not particularly egregious. There was only one illegal
interception, only 33 people were present in the establishment and only a minimal profit was
made by the defendant. Id. at 139. In addition, it was not established that defendant had ample
financial resources. Id. Even under these circumstances, however, the court noted:

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plaintiff has established knowing and willful violation, for
commercial advantage and/or private financial gain, and explains
the loss in revenue and detrimental effect upon lawful residential
and commercial cable customers as a result of signal piracy, which
interest and concomitant need for deterrence other courts have
recognized . . . Accordingly, taking into account awards granted by
other courts in this district under similar circumstances, the Court
will award $5,000 in statutory damages, plus an additional $10,000
for the willful nature of defendant‟s violation, done for
commercial advantage and/or private financial gain.
MEMORANDUM OF POINTS AND AUTHORITIES – 15

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Id. at 139-40 (emphasis added) (internal citation omitted).
In Kingvision Pay-Per-View, Ltd. v. Dosani, supra, with respect to enhanced damages
under section 605(e)(3)(C)(ii) (called “punitive damages” by the court) the court noted:
The record shows that defendant showed the Event for the purpose of increasing
the business, customers, and sales revenue. The record does not indicate the
amount of profit, if any, defendant derived from unlawfully broadcasting the
Event. The record does show that the defendant‟s establishment contained seating
for approximately 200 people, approximately 34 people were present, and each
paid a cover charge of $3.00. Based on the affidavit showing an intentional
violation, this court finds that the record supports a finding of a willful violation
an award of $25,000.00 additional damages beyond the $10,000.00.
Id. at *2 (emphasis added).
Dosani is also similar to the case herein. While the Defendant did not charge a cover, and

15

the establishment in Dosani was equivalent, the number of people present was comparable and it

16

is clear that in both cases the event was shown for the purpose of increasing business, customers

17

and sales revenue.

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Other cases that awarded substantial enhanced damages in a default situation have
included KingVision Pay-Per-View, Ltd. v. Guerra, 2007 WL 3001659 (S.D. Tex. 2007)
(awarding statutory damages of $10,000.00 and enhanced damages of $50,000.00)3; Joe Hand

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Promotions Inc. v. Chapa, 2009 WL 2215124 (S.D.Tex. 2009) (finding requested damages of

24

$10,000.00 under section (i)(II) and $50,000.00 under section (ii) to be reasonable)4; Rubio,

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supra, (awarding $25,000.00 in enhanced damages under section 605(e)(3)(C)(ii)). The Guerra

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Court did not address the underlying specific facts of the case.

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Chapa was not a default case. The defendants originally had Answered and the case was
conditionally dismissed while the parties worked on a settlement. Id. at *1. When the parties

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MEMORANDUM OF POINTS AND AUTHORITIES – 16

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were unable to reach an agreement, Plaintiff moved to reinstate the case. Id. The Defendants took

2

no further action and, ultimately, summary judgment was granted in Plaintiff‟s favor. Id.

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4

In Innovative Sports Marketing v. Medeles, 2008 WL 1758886 (S.D.Tex. 2008), with respect to

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enhanced damages under section 605(e)(3)(C)(ii) the court noted that, “Because the defendant

6

has not contested the allegations of willfulness, and default judgment has been granted, the court

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8

considers the defendant‟s actions to be willful and for the purpose of commercial advantage.” Id.

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at 2. The court awarded an increase in damages of $50,000.00, “because the defendant is

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considered to have admitted willfulness, and to deter future violations of § 605(a).” Id.; citing

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Al-Waha, 219 F.Supp.2d at 716 for (“The deterrence of future violations ... is one of the

13

objectives of the statute.”); see also Garden City Boxing Club, Inc. v. Batista, 2007 WL

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4276836, 4 (E.D.N.Y. 2007) (“In exercising [its] discretion [to award enhanced damages], courts

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should be mindful of the difficulty in detecting such violations and the widespread problem of

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piracy . . . . The court should therefore grant damages in an amount which achieves the deterrent

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purposes of the statute.”).
Next, while it may be rare, district courts have awarded the statutory maximums in piracy
cases. In fact, a district court in California also has awarded the “maximum” under section 605.

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See J & J Sports Productions, Inc. v. Ferreyra, 2008 WL 4104315 (E.D.Cal. 2008). Plaintiff

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calls attention to the fact that Ferreyra involved a repeat offender and that the district court took

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that fact into account in making its award. See id. In that regard, this case is similar given the

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continued advertisement of the UFC events.

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Plaintiff respectfully requests that this Court consider the foregoing cases when
determining an appropriate enhanced award to Plaintiff.

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MEMORANDUM OF POINTS AND AUTHORITIES – 17

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4. NOMINAL DAMAGES HAVE PROVEN INSUFFICIENT TO COMBAT PIRACY
Finally, Plaintiff would like to address those cases that have awarded more nominal
damages. See e.g. J & J Sports Productions, Inc. v. Medinarios, 2008 WL 4412240 (N.D.Cal.

5

2008) (Awarding $1,000.00 in statutory damages and $5,000.00 in enhanced statutory damages);

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J & J Sports Productions, Inc. v. Manzano, 2008 WL 4542962 (N.D.Cal. 2008) (Awarding $250

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8

in total damages); J & J Sports Productions, Inc. v. Man Thi Doan, 2008 WL 4911223 (N.D.Cal.

9

2008) (Awarding $2,500.00 in total damages). As the Court is aware, and as a simple Lexis or

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Westlaw search reveals, there are hundreds of these types of cases throughout the nation.
Plaintiff respectfully submits that those cases that award nominal damages are a major
reason why there have been little to no decrease in piracy.
As noted in J & J Sports Productions, Inc. v. Castrillon, 2009 WL 1033364, *3 (E.D.N.Y.

16

2009), “Absent substantial financial penalties, the defendant will likely continue to illegally

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display the plaintiff's programming and other such establishments will follow suit. The plaintiff

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cannot practicably investigate all these infractions, nor should they be expected to do so.” Id.

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(internal citation omitted). “In order to preserve the plaintiff's livelihood, the Defendant must be

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held accountable for an amount significant enough to deter such conduct. Absent such a

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deterrent, the defendant and other potential infringers will be encouraged to violate the law, as

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infringement would be more cost effective than contracting with the plaintiff.” Id.

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As willful violators of the applicable statutes, the Defendants must be held accountable
for a substantial amount above the market value of the sublicense fee to broadcast the Event.
Otherwise, other commercial establishments “would be encouraged to violate the law knowing
the full extent of their liability would not exceed what they would have to pay for a license on

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MEMORANDUM OF POINTS AND AUTHORITIES – 18

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the open market.” Fallaci v. New Gazette Literary Corp., 568 F.Supp. 1172, 1174 (S.D.N.Y.

2

1983).

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5. DAMAGES FOR CONVERSION
Finally, with respect to the conversion claim, damages for conversion are based on the
value of the property at the time of the conversion (plus interest). Cal. Civ. Code § 3336; see

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Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 215, 193 Cal.Rptr. 322. In addition, the

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plaintiff in a conversion action is entitled to, “A fair compensation for the time and money

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properly expended in pursuit of the property.” Cal. Civ. Code § 3336. In this case, Plaintiff seeks

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$1,800.00 in conversion damages, the amount Defendant would have been required to pay had

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he ordered the Event from Plaintiff.

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6. ATTORNEYS FEES AND COSTS
Plaintiff requests an award of attorneys‟ fees and costs pursuant to 47 U.S.C. §§
553(c)(2)(C) and 605(e)(3)(B)(iii). Under Sections 553(c)(2)(C) and 605(e)(3)(B)(iii), the award

19

of attorney‟s fees is mandatory. According to Section 605(e)(3)(B)(iii), “[t]he Court... shall

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direct the recovery of full costs, including awarding reasonable attorneys‟ fees...”

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Plaintiff seeks an award of attorneys fees in the amount of Three Thousand Nine Hundred

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Sixty Two Dollars and Fifty Cents ($3,962.50) for the prosecution of this action through the final

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Judgment requested. See Exhibit “B” the Affidavit of David J. Davoli. In addition, Plaintiff also

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seeks a contingent award of attorney‟s fees in the event certain post-trial, pre-appeal and

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appellate services are rendered and do not lead to the a reversal of the Judgment as provided in

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the Affidavit of David J. Davoli.
Plaintiff is also entitled under the applicable statute to his costs. In the instant matter,
Plaintiff has incurred the following costs:

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MEMORANDUM OF POINTS AND AUTHORITIES – 19

1

1.

Investigator:

$500.00

2

2.

Filing of Complaint:

$350.00

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3.

Process Server:

$188.98

4

_______________________________________

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TOTAL

$1038.98

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7

Plaintiff is entitled to recover his full costs pursuant to the applicable statutes, and respectfully

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requests an award reflecting same.

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F. CONCLUSION

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Plaintiff respectfully requests that the Court sign and cause to be entered a judgment for
Plaintiff against Defendant awarding Plaintiff:

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(1)

Statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) from Defendant in

the amount of $10,000.00;
(2)

Additional damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii) from Defendant in

the amount of $100,000.00;
(3)

Attorneys‟ fees from Defendant, in the amount of Three Thousand Nine Hundred

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Sixty Two Dollars and Fifty Cents ($3,962.50) a breakdown of which is presented in the

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Affidavit of David J. Davoli (for prosecution of this case through default judgment); along with

23

attorney‟s fees for post-trial and appellate services;

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(4)

Costs relating to the prosecution of this matter in the amount of $1,038.98;

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(5)

A permanent injunction that enjoins Defendant from ever intercepting or

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exhibiting an unauthorized program in violation of the Federal Communications Act;
(6)

Costs and post-judgment interest at the highest lawful rate; and

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MEMORANDUM OF POINTS AND AUTHORITIES – 20

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(7)

Such other and further relief to which Plaintiff is entitled.
Respectfully submitted,

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/s/ David J. Davoli

5

__________________________________
David J. Davoli, Esq. (DD-9073)
DAVOLI LAW FIRM
207 West 25th Street, Suite 400
New York, NY 10001
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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Attorney for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES – 21

EXHIBIT “A”

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
----------------------------------------------------x
JOE HAND PROMOTIONS, INC.,
Plaintiff,
Case No.: CDC-01333-LHK
vs.
PETE BE, Individually, and as an officer,
director, shareholder, and/or principal of
DA KINE CAFÉ, INC. d/b/a
DA KINE CAFÉ
153 E. Fremont Avenue
Sunnyvale, CA 94087,

AFFIDAVIT OF JOE HAND

Defendants.
----------------------------------------------------x
PLAINTIFF’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S APPLICATION FOR
DEFAULT JUDGMENT BY THE COURT

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STATE OF PENNSYLVANIA

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COUNTY OF BUCKS

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)
) ss:
)

I, JOE HAND, JR., being duly sworn, depose and state the following:
1.

I am the President of Plaintiff, JOE HAND PROMOTIONS, INC., and as such I

am fully familiar with the facts, circumstances, and proceedings heretofore had herein.
2.

I make this affidavit in support of Plaintiff’s request to recover statutory damages,

22

including attorneys’ fees, investigative costs, and interest in the within request for judgment by

23

default.

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3.

Our company, JOE HAND PROMOTIONS, INC., is a closed circuit distributor

of sports and entertainment programming. Our company purchased and retains the commercial

27

exhibition rights to the “UFC 119: Mir v. Cro Cop” Broadcast, including all undercard bouts and

28

the entire television broadcast, scheduled for September 25, 2010, (hereinafter referred to as the

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1

1

“Broadcast”) . Our company thereafter marketed the sub-licensing (commercial exhibition)

2

rights in the Program to our company’s commercial customers (i.e., casinos, racetracks, bars,

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4
5
6

restaurants, and nightclubs). A true and correct copy of the Agreement is attached to Plaintiff’s
Motion for Default as Exhibit “A-1”.
4.

Simultaneously with the advent of pay-per-view programming, we began to

7

experience serious erosion in the sales of our own proprietary programming to our commercial

8

customers throughout the United States of America. To protect ourselves, we endeavored to find

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out what was the basis for the erosion and determined from our customers that the cause of the
erosion of our customer base was the rampant piracy of our broadcasts by unauthorized and
unlicensed establishments (signal pirates).
5.

In response, we embarked upon a nationwide program to police our signals for the

purpose of identifying and prosecuting commercial establishments which pirate our
programming (including the Mir and Cro Cop event, the subject programs involved in this
lawsuit).
6.

Specifically, JOE HAND PROMOTIONS, INC. retained, at considerable

19

expense, auditors and law enforcement personnel to detect and identify signal pirates. To ensure

20

that only illegal locations were visited by the auditors, our company compiled our confidential

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list of customers (authorized and legal locations) who paid the required license fee to broadcast
the Program, and this list was distributed to participating auditing and law enforcement agencies
in strict confidence.
7.

The above-referenced Broadcast contained several televised under-card bouts and

color commentary, along with the main event prizefight between Mir and Cro Cop. As set forth
within the sworn Affidavit of Tad Whitaker, it was the undercard fight between Serra and Lytle

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2

1

which Mr. Whitaker observed as being unlawfully exhibited by the establishment doing business

2

as “Da Kine Café” on Saturday, September 25, 2010 (as at no time did this establishment ever

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6

lawfully license the Program from our company for such a purpose). A true and correct copy of
the Affidavit of Tad Whitaker is attached Hereto as exhibit “A-2.”
8.

Domestic commercial establishments, which contract with us, were required to

7

pay my company a commercial sublicense fee to broadcast the Program. This sublicense fee for

8

the Program was based on the capacity of the establishment and varies for each event. For

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example, for this particular event, if a commercial establishment had a maximum fire code
occupancy of 75 persons, the commercial sublicense fee would have been $1,100.00 A true and
correct copy of the Rate Card is attached hereto as Exhibit “A-3.”
9.

It is essential that I communicate to the Court that to the best of my knowledge

our programming is not and cannot be mistakenly, innocently, or accidentally intercepted. Some
methods that a signal pirate can unlawfully intercept and broadcast our programming are as
follows without limitation:
A.

The use of a “blackbox,” “hotbox,” or “pancake box” which is purchased

19

for a fee and when installed on a cable TV line will allow for the descrambled reception of a pay-

20

per-view broadcast, or

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B.

The use of a “smartcard” or “test card” or “programming card” which is

purchased for a fee and when installed on a DSS satellite receiver line will allow for the
descrambled reception of a pay-per-view broadcast, or
C.

The purposeful misrepresentation of a commercial establishment as a

residential property to allow the fraudulent purchase of a pay-per-view (or prohibited)
programming at the residential rate, or

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3

D.

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4

The use of illegal cable drop or splice from an apartment or home adjacent

to the commercial establishment premises (which would purchase the broadcast at a residential
price and divert the program to the commercial establishment), and/or
E.

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The purchase of other illegal unencryption devices, and the purchase of

6

illegal satellite authorization codes which are readily available on the internet, in trade

7

publications, and through “word of mouth.”

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10.

Turning these facts to the matter before the Court I have been advised by counsel

that the Court has wide discretion in the awarding of statutory damages for nefarious, illegal and
debilitating activities of signal pirates which are injurious to our company and our lawful

12

customers.

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11.

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It is respectfully submitted to this Honorable Court that the unchecked activity of

signal piracy not only has resulted in our company’s loss of several millions of dollars of
revenue, but also has a detrimental effect upon lawful residential and commercial customers of
cable and satellite broadcasting whose costs of service are increased significantly by these illegal

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activities, including the depravation of tax revenue to the communities where our potential

19

customers reside, and the denial of benefits such tax revenue would provide the residents of such

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communities.

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12.

We, at JOE HAND PROMOTIONS, INC., believe that the persistent signal

piracy of our programming costs our company, our customers, and their communities millions of

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dollars annually resulting in part, from the perceived lack of consequences (including nominal or

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minimal damage awards by the Courts who hear our cases).

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13.

For these reasons I ask this Honorable Court to grant a substantial allowance for

statutory damages due to the fact that such actions are per se intentional and do not and cannot

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occur without the willful and intentional modification of electronic equipment, the willful and

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fraudulent misrepresentation of a commercial establishment as a residential one, the removal of

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cable traps or devices designed to prevent such unauthorized exhibits, or other willful and/or
international acts purposely designed to obtain our programming unlawfully.
14.

I am also troubled by the fact that the Courts have placed undue weight upon

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whether the promotion of programming by the signal pirates (rather than the exhibition of the

8

programming itself) was done willfully and/or for commercial benefit. I would ask the Court to

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recognize that the willful and purposeful acts necessary to intercept and exhibit the programming
precede whatever steps are, or are not taken, by the pirate establishment to promote our
programming to their customers.
15.

I would also ask the Court to recognize that the pirates do not generally advertise

the fact that they intend to exhibit our programming unlawfully to the public for the practical
reason that they wish to avoid the unessential risk of detection. This of course does not preclude
the very real possibility fact that the unlawful exhibition may well have been promoted by word

18

of mouth or advertising that went undetected by the auditors, to their own customers to increase

19

their financial gain on the night our programs are broadcast at their establishment.

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16.

In addition, it is extremely unlikely that a pirate establishment would increase the

costs of food or drink on the evening they are broadcasting one of our programs unlawfully. In
my personal experience gained through many years in the promotion industry, it is most

24

uncommon that even our legal locations would employ such a method to recover some of our

25

commercial license fee back from their own customers. I would point out however that since our

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auditors do not benchmark the prices charged for food or drink at the pirate locations subsequent

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to conducting the field surveillance on the evening our programming is broadcast, it is

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undetermined whether the prices paid by an auditor at a pirate location on fight night are in fact

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less than or equal to the normal prices charged by the pirate establishments.

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17.

I also believe it particularly important that the Court understand that the

overwhelming majority of pirate establishments do not, and likely will not, ever charge a cover

6

or door charge to their customers on the evening our programming is exhibited. To do so would

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defeat the very purpose of pirating on programming in the first place: to lure or retain patrons

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who seek to be entertained by our programming. If the pirate demanded a cover charge of its

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patrons then the competitive advantage he or she held over our lawful customers (who regularly
impose a cover charge) would dissipate and the pirate’s patrons would be faced with a choice of

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viewing our programming at the pirate establishment or at our lawful customer’s locations where

13

the broadcast environment may be much more attractive (i.e., more monitors, bigger monitors,

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no risk of interference or interception, etc.).

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16
17

18.

Clearly, this establishment with multiple television monitors, and a physical

established location, had no justification to steal our programming and exhibit it for its own

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financial benefit, except to deny our company the commercial license fee to which was rightfully

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entitled.

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WHEREFORE I respectfully request that this Court grant our request for enhanced
statutory damages and our prayer for actual damages, plus our legal costs along with the
attorneys’ fees counsel has requested, and that such amounts be awarded against the Defendants
named in this action and in our favor.
Respectfully submitted,

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31

6

1
2
3
4
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7

EXHIBIT “A-1”

EXHIBIT “A-2”

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2
3
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8

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17

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David J. Davoli, Esq. (DD-9073)
DAVOLI LAW FIRM
207 West 25th Street, Suite 400
New York, NY 10001
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
----------------------------------------------------x
JOE HAND PROMOTIONS, INC.,
Plaintiff,
Case No.: CDC-01333-LHK
vs.
PETE BE, Individually, and as an officer,
director, shareholder, and/or principal of
DA KINE CAFÉ, INC. d/b/a
DA KINE CAFÉ
153 E. Fremont Avenue
Sunnyvale, CA 94087,
Defendants.
----------------------------------------------------x
TO THE CLERK OF THE COURT:
A true and correct copy of the Declaration of Affiant is attached hereto and made part hereof.

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DECLARATION OF AFFIANT
IN SUPPORT OF PLAINTIFF’S
APPLICATION FOR DEFAULT
JUDGMENT

Respectfully submitted,
Dated: August 17, 2011
/s/ David J. Davoli
______________________________
DAVOLI LAW FIRM
David J. Davoli, Esq.
Attorney for the Plaintiff

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32
DECLARATION OF AFFIANT IN SUPPORT- 1

EXHIBIT “A-3”

EXHIBIT “B”

5

David J. Davoli, Esq. (DD-9073)
DAVOLI LAW FIRM
207 West 25th Street, Suite 400
New York, NY 10001
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

6

Attorneys for Plaintiff

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2
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4

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
----------------------------------------------------x
JOE HAND PROMOTIONS, INC.,
Plaintiff,

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vs.
PETE BE, Individually, and as an officer,
director, shareholder, and/or principal of
DA KINE CAFÉ, INC. d/b/a
DA KINE CAFÉ
153 E. Fremont Avenue
Sunnyvale, CA 94087,

Case No.: CDC-01333-LHK
DECLARATION OF PLAINTIFF’S
COUNSEL RE ATTORNEYS FEES

Defendants.
----------------------------------------------------x
I, David J. Davoli, declare as follows:

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1. I am counsel of record for Plaintiff, Joe Hand Promotions, Inc., in this action. I have

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personal knowledge of the following facts except those stated on information and belief, and as

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to those facts, I believe them to be true.

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2. On March 21, 2011, Plaintiff filed suit against Defendants Pete Be and Da Kine Cafe,

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Inc. d/b/a Da Kine Cafe (“Defendants”), in the United States District Court. The cost of filing

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the Complaint in the above-entitled action was Three Hundred Fifty Dollars ($350.00).

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DECLARATION OF PLAINTIFF’S COUNSEL RE ATTORNEYS FEES - 1

1

3. The cost of serving the named defendants with initiating suit papers was two hundred ten

2

dollars ($188.98). A true and correct copy of the relevant proofs of service are attached hereto as

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4
5
6
7

Exhibit “B-1”.
4. Prior to the filing of the lawsuit, Plaintiff incurred Five Hundred Dollars ($500.00) in
investigative costs in this matter prior to the institution of suit.

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5. I am a member in good standing of both the New York and California State Bars; The

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Southern, Central, Northern and Eastern Districts of California; and the United States Supreme

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11

Court.

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6. In conjunction with myself, an associate attorney and a paralegal have performed work

13

on this matter. My firm routinely handles the civil prosecution of commercial signal piracy

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claims on behalf of Joe Hand Promotions. This particular case has required the involvement of

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myself, an associate attorney, one (1) paralegal, and an administrative assistant.

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7. My billable rate for attorneys in matters such as the instant litigation is three hundred

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dollars ($300.00) per hour. We bill administrative assistant time at ($75.00) per hour and

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paralegal time at ($150.00) per hour.

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8. We do not use computerized time sheets or electronic legal billing software. Billable

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hours for legal services rendered are reconstructed by way of a thorough review of the files

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themselves. In light of our routine handling of these types of matters, we are extremely capable

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of reconstructing an accurate outline of our billable time on this file. Our rates for legal,

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administrative, and paralegal time are well within the guidelines of the prevailing market rates

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within Los Angeles County and the United States. A true and correct copy of Laffey Matrix

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Salary Information is attached hereto as Exhibit “B-2”.

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DECLARATION OF PLAINTIFF’S COUNSEL RE ATTORNEYS FEES - 2

1

9. A complete outline of the billable time spent on this case is set forth below. Unless

2

otherwise designated, the legal services rendered referencing more than one staff member means

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4

both members of the staff participated on the legal task jointly or participated in completing the

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task independently for the same amount of billable hours referenced.

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Item
1
2

Date
10/22/2010
10/22/2010

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3

10/31/2010

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4
5

2/7/2011
2/7/2011
3/21/2011

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6
7

4/28/2011
6/2/2011

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8

6/13/2011

9

6/17/2011

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11

6/18/2011
8/11/2011

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8/15/2011

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8/16/2011

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9

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Legal Services Rendered
Initial File Review and File preparation
Preparation and service of initial
demand letter to Defendant Christopher
J. Trimble
Review certified mail receipt indicating
return of service
Preparation of second demand letter
Preparation of draft Complaint
Preparation, Filing, and Service of
Initiating Suit Papers (Complaint,
Summons, Certification as to Interested
Parties, Civil Cover Sheet)
Review Clerk’s Notice
Preparation and filing of Notice of
Change of Address for Attorney
Preparation, filing and Service of
Request for Default
Preparation and Filing of Motion to
Amend/Correct Request for Default
Review Court’s Entry of Default
Preparation, Filing, and Service of
Application for Default Judgment by the
Court (including Memorandum of Law,
Declaration of Affiant, Declaration of
Plaintiff’s Counsel, and Proposed
Order)
Preparation, Filing, and Service of
Plaintiff’s Affidavit in Support of
Plaintiff’s Application for Default
Judgment
Preparation of Declaration of Plaintiff’s
Counsel re: Attorneys’ Fees and Costs

Billable Hours Staff
0.300
Attorney
0.200
Attorney
0.100
0.200
0.900
0.800

0.100
N/C
0.400

Paralegal
Admin.
Assistant
Attorney

N/C

Attorney

0.200
6.000

Attorney
Attorney

0.300

Paralegal

1.5

Attorney

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Admin.
Assistant
Attorney
Paralegal
Paralegal

DECLARATION OF PLAINTIFF’S COUNSEL RE ATTORNEYS FEES - 3

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10. As such, Plaintiff’s total costs in this matter to date, amount to One Thousand Thirty

2

Eight Dollars and Thirty Eight Cents ($1038.98) ($500.00 (investigative costs) + $350.00

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4

(complaint filing fee) + $188.98 (service of process charges)).
11. Plaintiff’s billable attorneys’ fees in this matter to date amount Three Thousand Nine

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Hundred Sixty Two Dollars and Fifty Cents ($3,962.50). The breakdown is as follows:

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a.

Attorney =

8.8 hours at $300.00 per hour = $2640.00

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b.

Paralegal =

2.1 hours at $150.00 per hour = $315.00

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c.

Administrative Assistant = 0.1 hours at $75.00 per hour = $7.50

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12. It is also my opinion that the following attorneys’ fees are reasonable for each of the
following:1

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a.

Ten Thousand Dollars ($10,000.00) in the event Defendant files a motion to
vacate, Rule 60 motion, motion for new trial, motion for reconsideration or other
post-judgment, pre-appeal motion that does not result in a reversal of the
Judgment obtained in this action;

b.

Fifteen Thousand Dollars ($15,000.00) in the event Defendant files an appeal to
the Fifth Circuit Court of Appeals that does not result in a reversal of the
Judgment obtained in this action;

c.

Five Thousand Dollars ($5,000.00) for making and/or responding to a petition for
certiorari to the U.S. Supreme Court that does not result in a reversal of the
Judgment obtained in this action;

d.

Ten Thousand Dollars ($10,000.00) for an appeal to the United States Supreme
Court in the event a petition for certiorari review is granted and does not result in
a reversal of the Judgment obtained in this action; and

e.

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Two Thousand Five Hundred Dollars ($2,500.00) for collection of the Judgment

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1

The Court may award fees for appellate work on a contingent basis. See Lyn-Lea Travel Corp.
v. American Airlines, Inc., Civil Action No. 3:96-CV-2068, 2000 U.S. Dist. LEXIS 14487, at * 33 (N.D.
Tex. September 29, 2000) (vacated on other grounds, 283 F.2d 282 (5th Cir. 2002) citing Norris v.
Hartmax Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990) (“A long and consistent line of Fifth
Circuit precedent allows awards of attorney’s fees for both trial and appellate work.”) (citations omitted).
DECLARATION OF PLAINTIFF’S COUNSEL RE ATTORNEYS FEES - 4

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rendered in this case, should Plaintiff obtain a writ of execution, writ of
garnishment, writ of attachment or other process.”
I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Dated: August 17, 2011

/s/ David J. Davoli
By: _________________________________
David J. Davoli, Esq., State Bar No.: 264144
DAVOLI LAW FIRM
207 West 25th Street, Suite 400
New York, NY 10001
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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DECLARATION OF PLAINTIFF’S COUNSEL RE ATTORNEYS FEES - 5

EXHIBIT “B-1”

EXHIBIT “B-2”

LAFFEY MATRIX 2003-2010
(2009-10 rates are unchanged from 2008-09 rates)

Years (Rate for June 1 - May 31, based on prior year's CPI-U)

Experience

03-04

04-05

05-06

06-07

0708

0809

0910

1011

20+ years

380

390

405

425

440

465

465

475

11-19 years

335

345

360

375

390

410

410

420

8-10 years

270

280

290

305

315

330

330

335

4-7 years

220

225

235

245

255

270

270

275

1-3 years

180

185

195

205

215

225

225

230

Paralegals &
Law Clerks

105

110

115

120

125

130

130

135