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]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
San Jose Division
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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,

(PROPOSED) ORDER

Defendants.
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Upon consideration of Plaintiff’s Motion for Final Default Judgment (“Motion”), the
accompanying Memorandum of Points and Authorities in Support thereof and evidence, the
pleadings on file and the relevant authorities, the Court concludes that Plaintiff has established

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that it is an aggrieved party under the Federal Communications Act, 47 U.S.C. §§ 553 and 605
and recognizes Plaintiff’s election to seek statutory damages. The Court also concludes that it
has jurisdiction over the subject matter and parties to this action; that Defendants, Pete Be and

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Da Kine Cafe, Inc. d/b/a Da Kine Café, (“Defendants”), failed to answer or otherwise defend as

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provided by the Federal Rule s of Civil Procedure following proper service; that the allegations

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in Plaintiff’s Original Complaint are deemed admitted against Defendants; that Defendants
exhibited the closed circuit “UFC 119: Mir v. Cro Cop” Broadcast, including all undercard bouts
(PROPOSED) ORDER - 1

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

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the “Broadcast”) without authorization from Plaintiff; and that Defendants’ actions were willful

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and for purposes of direct or indirect commercial advantage or private financial gain. Therefore,
additional damages are warranted in this action.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:

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1.

That Judgment by default be entered in favor of Plaintiff and against Defendant.

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2.

That Plaintiff recover statutory damages pursuant to 47 U.S.C. §
605(e)(3)(C)(i)(II) from Defendant in the amount of $10,000.00.

3.

That Plaintiff recover additional damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii)
from Defendant in the amount of $100,000.00.

4.

That Plaintiff recover attorneys’ fees from Defendant in the amount of Three
Thousand Nine Hundred Sixty Two Dollars and Fifty Cents ($3,962.50); along
with attorney’s fees for post-trial and appellate services.

5.

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

6.

That Plaintiff recover the following conditional awards of attorney’s fees from
Defendant in the following circumstances:

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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

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(PROPOSED) ORDER - 2

e.

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Two Thousand Five Hundred Dollars ($2,500.00) for collection of the
Judgment rendered in this case, should Plaintiff obtain a writ of execution,
writ of garnishment, writ of attachment or other process.

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7.

The Court also enjoins Defendant from ever intercepting or exhibiting an
unauthorized program in violation of the Federal Communications Act.

8.

The Court also awards Plaintiff court costs and post-judgment interest on the
amounts awarded herein at an annual rate of ________ from the date of this
Judgment until paid.

9.

All writs and process for the enforcement and collection of this judgment may
issue as necessary. In connection with any Writ of Execution in this case, the
Court directs the United States Marshals Service to use any means or force
reasonably necessary to satisfy this Judgment.

10.

This judgment is a final judgment.

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SO ORDERED.

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______________________________
Lucy H. Koh
United States District Judge

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(PROPOSED) ORDER - 3