Joe Hand Promotions, Inc. v. Purple Pig, LLC et al

Filing 20

ORDER. Plaintiff's Notice of Motion and Motion for Default Judgment 18 is GRANTED in part and DENIED in part as stated in this order. The Clerk shall enter judgment in favor of Joe Hand Promotions, Inc. and against Purple Pig, LLC and Joe An drew Trujillo in the amount of $12,400.00, consisting of: (1) statutory damages in the amount of $3,000.00 pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); (2) enhanced damages in the amount of $9,000.00 pursuant to 47 U.S.C. § ; 605(e)(3)(C)(ii); and (3) costs in the amount of $400.00 pursuant to 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff may seek an award of attorney's fees pursuant to 47 U.S.C. § 605(e)(3)(B)(iii) by filing a motion for attorney's fees that complies with Fed. R. Civ. P. 54(d) (2) and D.C.COLO.LCivR 54.3. This case is closed, by Judge Philip A. Brimmer on 9/13/18. (sgrim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-01056-PAB-NRN
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
PURPLE PIG, LLC, d/b/a Purple Pig Pub, and
JOE ANDREW TRUJILLO,
Defendants.

ORDER

This matter is before the Court on plaintiff’s Notice of Motion and Motion for
Default Judgment [Docket No. 18].
I. BACKGROUND
Because of the Clerk of Court’s entry of default, Docket No. 17, the allegations in
plaintiff’s complaint, Docket No. 1, are deemed admitted. Olcott v. Del. Flood Co., 327
F.3d 1115, 1125 (10th Cir. 2003). This case concerns defendants’ unauthorized
broadcast of Ultimate Fighting Championship® 205: Alvarez v. McGregor (the
“Program”) at the Purple Pig Pub in Alamosa, Colorado on November 12, 2016. Docket
No. 1 at 1, 3, ¶¶ 1, 2, 11-12. Plaintiff possessed the exclusive right to license and
distribute the Program to commercial establishments. Id. at 3, ¶ 8. Without obtaining
permission from plaintiff, defendants, “[b]y unauthorized satellite transmission or . . .
unauthorized receipt over a cable system . . . willfully intercepted or received the
interstate communication of the Program” and unlawfully exhibited it to patrons at the

Purple Pig Pub. Id., ¶¶ 11-12.
Plaintiff filed this lawsuit on April 28, 2017 asserting claims for satellite and/or
cable piracy in violation of 47 U.S.C. §§ 553 and 605. Id. at 4. After defendants failed
to respond to the complaint or otherwise appear in the action, plaintiff moved for entry
of default. Docket No. 16. The Clerk of the Court entered default against defendants
on July 24, 2017. Docket No. 17. On December 6, 2017, plaintiff filed a motion for
default judgment. Docket No. 18.
II. LEGAL STANDARD
In order to obtain a judgment by default, a party must follow the two-step process
described in Fed. R. Civ. P. 55. First, the party must seek an entry of default from the
Clerk of the Court under Rule 55(a). Second, after default has been entered by the
Clerk, the party must seek judgment under the strictures of Rule 55(b). See Williams v.
Smithson, 57 F.3d 1081, 1995 W L 365988, at *1 (10th Cir. June 20, 1995) (unpublished
table decision) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
The decision to enter default judgment is “committed to the district court’s sound
discretion.” Olcott, 327 F.3d at 1124 (citation omitted). In exercising that discretion, the
Court considers that “[s]trong policies favor resolution of disputes on their merits.”
Ruplinger v. Rains, 946 F.2d 731, 732 (10th Cir. 1991) (quotation and citations
omitted). “The default judgment must normally be viewed as available only when the
adversary process has been halted because of an essentially unresponsive party.” Id.
It serves to protect plaintiffs against “interminable delay and continued uncertainty as to
his rights.” Id. at 733. When “ruling on a motion for default judgment, the court may

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rely on detailed affidavits or documentary evidence to determine the appropriate sum
for the default judgment.” Seme v. E&H Prof’l Sec. Co., Inc., No. 08-cv-01569-RPMKMT, 2010 WL 1553786, at *11 (D. Colo. Mar. 19, 2010).
A party may not simply sit out the litigation without consequence. See Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir.
1983) (“[A] workable system of justice requires that litigants not be free to appear at
their pleasure. We therefore must hold parties and their attorneys to a reasonably high
standard of diligence in observing the courts’ rules of procedure. The threat of
judgment by default serves as an incentive to meet this standard”). One such
consequence is that, upon the entry of default against a defendant, the well-pleaded
allegations in the complaint are deemed admitted. See Charles Wright, Arthur Miller &
Mary Kane, Fed. Prac. & Proc. § 2688 (3d ed. 2010). “Ev en after default, however, it
remains for the court to consider whether the unchallenged facts constitute a legitimate
cause of action, since a party in default does not admit mere conclusions of law.” Id. at
63. A court need not accept conclusory allegations. Moffett v. Halliburton Energy
Servs., Inc. 291 F.3d 1227, 1232 (10th Cir. 2002). Althou gh “[s]pecific facts are not
necessary” in order to state a claim, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), the wellpleaded facts must “permit the court to infer more than the mere possibility of
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation and
alteration marks omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting

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all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quotation and
citation omitted).
III. ANALYSIS
A. Jurisdiction
Before addressing the merits of plaintiff’s motion for default judgment, the Court
must determine whether it has subject matter and personal jurisdiction over this case.
See Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 772 (10th
Cir. 1997) (holding that “a district court must determine whether it has jurisdiction over
the defendant before entering judgment by default against a party who has not
appeared in the case”). The Court finds that it has subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 because plaintiff asserts claims under a federal statute.
Additionally, the Court may exercise personal jurisdiction over defendants because
defendants operate the Purple Pig Pub in Alamosa, Colorado and the alleged statutory
violation took place in Colorado.
B. Violations of 47 U.S.C. §§ 553 and 605
Plaintiff asserts violations of 47 U.S.C. §§ 553 and 605. Section 553 prov ides
that “[n]o 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.” 47
U.S.C. § 553(a)(1). Likewise, § 605 states:
No person not being authorized by the sender shall intercept any radio
communication and divulge or publish the existence, contents, substance,
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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.
42 U.S.C. § 605(a)(6). Plaintiff alleges in its complaint that it had the exclusive right to
broadcast the Program on November 12, 2016. Docket No. 1 at 1, 3, ¶¶ 1, 8. Plaintif f
further asserts that, without obtaining permission from plaintiff and “by unauthorized
satellite transmission or . . . unauthorized receipt over a cable system,” defendants
“willfully intercepted or received the interstate communication of the Program” and “then
unlawfully transmitted, divulged and published said communication . . . to patrons” at
the Purple Pig Pub in Alamosa, Colorado. Id. at 1, 3, ¶¶ 2(d), 11. Because defendants
could only have intercepted the broadcast through illegal means, see id. at 3, ¶ 10
(noting that plaintiff never gave defendants “license, permission or authority to receive
and exhibit the Program”); Docket No. 18-2 at 3, ¶ 9 (affidavit by plaintiff stating that
plaintiff’s programming “cannot be mistakenly, innocently, or accidentally intercepted),
the Court finds plaintiff’s allegations sufficient to establish liability under §§ 553 and
605. See J & J Sports Productions, Inc. v. Twiss, No. 11-cv-01559-WJM-KLM, 2012
WL 1059990, at *3-4 (D. Colo. March 2, 2012) (finding that plaintiff had met the
statutory requirements for liability under §§ 553 and 605 where defendant exhibited the
broadcast without authorization, defendant could only have intercepted the broadcast
by illegal means, and the broadcast was transmitted by cable and satellite),
recommendation adopted by 2012 WL 1060047 (D. Colo. Mar. 29, 2012); Kingvision
Pay-Per-View, Ltd. v. Gutierrez, 544 F. Supp. 2d 1179, 1183 (D. Colo. 2008) (f inding

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allegations sufficient to establish violations of 47 U.S.C. §§ 553 and 605 where plaintiff
alleged that defendants were not authorized to broadcast the program in their
restaurant, the broadcast could only have been accomplished through illegal means,
and the services intercepted or received were also distributed via cable).
Plaintiff also seeks to hold defendant Joe Andrew Trujillo individually liable for
the unlawful broadcast. To prevail on this individual liability theory under §§ 553 and
605, plaintiff must demonstrate that defendant Trujillo “had the right and ability to
supervise the violations of the piracy statutes,” and that he “had a strong financial
interest in exploiting the pirated materials.” Joe Hand Promotions, Inc. v. Kay, 2016 WL
9819535, at *8 (D.N.M. Aug. 3, 2016) (internal quotation marks and brackets omitted);
DIRECTV, LLC v. Taylor, No. 13-cv-02551-WJM-CBS, 2014 WL 3373448, at *2 (D.
Colo. July 10, 2014) (“[T]o establish vicarious liability of an individual for a violation of
47 U.S.C. § 605, the plaintiff need only show that the individual defendant had the ‘right
and ability to supervise’ the violations, and that she had a ‘strong financial interest’ in
exploiting the copyrighted materials.”). Here, plaintiff alleges that defendant Trujillo was
an officer, director, shareholder, member and/or principal of the entity that owns the
Purple Pig Pub on the date of the Program. Docket No. 1 at 2, ¶ 3; see also Docket
No. 18-6 at 4 (Articles of Incorporation listing Joe Andrew Trujillo as the manager and
registered agent of Purple Pig, LLC). Plaintiff further alleges that defendant Trujillo
“had a right and ability to supervise the activities” of the Pub as well as “an obvious and
direct financial interest” in those activities. Docket No. 1 at 2, ¶ 3. These allegations,
which are deemed admitted as a result of defendants’ default, suffice to establish
defendant Trujillo’s individual liability. See Taylor, 2014 WL 3373448, at *2 (finding
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nearly identical allegations sufficient to establish individual liability); see also Kay, 2016
WL 9819535, at *8 (denying summary judgment on individual liability theory where the
undisputed facts demonstrated that the individual defendants had the right and ability to
supervise the streaming of the broadcast and did so in order to increase their profits).
C. Damages
Although plaintiff has established liability under both § 553 and § 605, plaintif f
may only recover under one section. See Gutierrez, 544 F. Supp. 2d at 1184 (stating
that “recovery under both section 553 and section 605 is improper”). Plaintiff elects to
recover damages under § 605. See Docket No. 18-1 at 5.
Section 605 allows recovery of statutory damages in an amount “not less than
$1,000 or more than $10,000” for each violation of the statute. 47 U.S.C.
§ 605(e)(3)(C)(i)(II). “[M]ost cases applying this statute in a commercial context have
interpreted the showing of an event on a single night as one violation.” Gutierrez, 544
F. Supp. 2d at 1184 (quoting Garden City Boxing Club v. Perez, 2006 WL 2265039, at
*5 (E.D.N.Y. Aug. 8, 2006). Accordingly, the Court finds that defendants’ alleged
broadcast of the Program on November 12, 2016 constitutes one violation of § 605(a).
Plaintiff seeks $5,000 in statutory damages for that violation. See Docket No.
18-1 at 6. In assessing the reasonableness of that amount, the Court will consider the
licensing fee that defendants would have paid based on the potential occupancy of the
space, any cover charge paid by the patrons in attendance on the night of the Program,
and any profits associated with the purchase of food and drink during the Program.
See J & J Sports Productions, Inc. v. Valdovines, No. 11-cv-02938-PAB-KMT, 2012 WL

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3758841, at *3 (D. Colo. Aug. 28, 2012) (considering both licensing fee and cover
charge in determining statutory damages); Twiss, 2012 WL 1059990, at *5-6
(recommending award of maximum amount of statutory damages based on licensing
fee, cover charge, and “the presumed profit associated with the patronage of 90 people
(in terms of food and drink)”). The Court is also cognizant that “unauthorized access to
[programming] reduces demand and depresses the prices that plaintiff can charge for
sublicenses.” Twiss, 2012 WL 1059990, at *6 n.5. The amount of statutory damages
should be roughly proportional to the loss suffered, Taylor, 2014 WL 3373448, at *3
(quoting Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d 438, 442
(S.D.N.Y. 2001), and plaintiff has the burden of showing that it is entitled to any award
greater than the statutory minimum. Id.
Here, plaintiff states that the commercial sublicensing fee would have been $998
for a maximum fire code occupancy of between seventy-six and one hundred persons.
See Docket No. 18-2 at 2-3, ¶ 7; see also Docket No. 18-3 at 2 (expressing opinion that
maximum occupancy of Purple Pig Pub is one hundred people). Plaintiff also presents
evidence that there was no cover charge, the Program was exhibited on two sixty-toseventy-inch television screens, and there were approximately fifty patrons in the
establishment at the time of the Program. See Docket No. 18-3 at 1-2. Finally, plaintiff
asserts “damage to its goodwill and reputation and loss of its right and ability to control
and receive fees for the transmission” of events as a result of defendants’ unlawful
conduct. Docket No. 18-1 at 8. Considering these factors and the awards in other
cases, see, e.g., Zuffa LLC v. Gonzalez, No. 17-cv-01805-CMA-NYW, 2017 WL

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6016403, at *3 (D. Colo. Nov. 14, 2017) (awarding $5,000 in statutory damages where
the sublicensing fee would have cost $2,250, defendants exhibited the broadcast on
five of their six televisions, and the occupancy of the restaurant was between 101 and
200 people); Taylor, 2014 WL 3373448, at *3 (awarding $1,500 where plaintiff had not
offered any evidence of the “profit that it was deprived of” and thus had failed to show
an entitlement to damages significantly greater than the statutory minimum); J & J
Sports Productions, Inc. v. Rivas, 2012 WL 3544834, at *2 (N.D. Okla. Aug. 16, 2012)
(finding $2,500 to be an appropriate award of statutory damages where the sublicense
fee would have been $2,200, no cover fee was charged, there were no more than
fifteen patrons in the restaurant at the time of the broadcast, and there was no evidence
of a financial benefit to the defendant or of repeated violations of the statute), the Court
finds that $3,000 in statutory damages constitutes appropriate compensation for
defendants’ violation of § 605(a).
Plaintiff also seeks $20,000 in enhanced damages for a willful violation under
§ 605(e)(3)(C)(ii). That section provides:
In any case in which the court finds that the violation was committed
willfully and for purposes of direct or indirect commercial advantage or
private financial gain, the court in its discretion may increase the award of
damages, whether actual or statutory, by an amount of not more than
$100,000 for each violation [of § 605(a)].
47 U.S.C. § 605(e)(3)(C)(ii). Courts consider the following factors in determining
whether to award enhanced damages for willful conduct under § 605(e)(3)(C)(ii):
“repeated violations over an extended period of time; substantial unlawful monetary
gains; significant actual damages to plaintiff; defendant’s advertising for the intended
broadcast of the event; defendant’s charging a cover charge or charging premiums for
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food and drinks.” Gutierrez, 544 F. Supp. 2d at 1185 (quoting Kingvision Pay-Per-View,
Ltd. v. Recio, 2003 WL 21383826, at *5 (S.D.N.Y. June 11, 2003)). While the
allegations and evidence presented in this case are sufficient to show that defendants’
“broadcast of the Program was willful and for purposes of direct or indirect commercial
advantage or private financial gain,” id. at 1185 (internal quotation marks omitted); see
also Docket No. 1 at 4, ¶ 13 (alleging that defendants’ actions were “committed willfully
and with the purpose and intent to secure a com mercial advantage and private financial
gain”); Docket No. 18-2 at 3, ¶ 9 (stating that plaintiff’s programming “cannot be
mistakenly, innocently, or accidently intercepted” and listing various methods used by
signal pirates to unlawfully intercept and broadcast programming); Joe Hand
Promotions, Inc. v. Carter, No. 18-cv-01105-RM-MEH, 2018 WL 3640713, at *4 (D.
Colo. Aug. 1, 2018) (report and recommendation) (finding sworn affidavit stating that
the programming “cannot be mistakenly, innocently, or accidentally intercepted” and
detailing methods used to intercept plaintiff’s programming sufficient to demonstrate a
willful violation of the statute); Valdovines, 2012 WL 3758841, at *3 (finding willful
conduct where plaintiff had “identifie[d] reasons to believe that the violations were
committed willfully” and defendant “admit[ted] that its conduct [met] the requirements of
§ 605(e)(3)(C)(ii)” by failing to participate in the case), the factors identified above do
not support a large enhanced damages award. In Gutierrez, the court awarded
enhanced damages equal to three times the statutory damages award where the
plaintiff had not shown a significant loss of revenue or presented any evidence of prior
violations, significant earnings by the defendant, advertising to attract a large crowd, the

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charging of a cover fee, or the charging of a premium for food and drinks. See 544 F.
Supp. 2d at 1185. Similarly in this case, plaintiff has demonstrated only $998 in lost
revenue based on defendants’ failure to pay the applicable sublicense fee; plaintiff’s
own evidence shows that defendants did not charge a cover fee on the night of the
programming, see Docket No. 18-3 at 1 (stating that there was no cover charge to enter
the Purple Pig Pub on November 12, 2016, and “no doorperson”); there is no indication
that defendants charged a premium for food and drinks, see Docket No. 18-2 at 5-6,
¶ 16 (stating “it is undetermined whether the prices paid by an auditor at a pirate
location on fight night are in fact less than or equal to the normal prices charged by the
pirate establishments”); and there is no evidence of any prior violations on the part of
defendants. Finally, although plaintiff asserts that “the broadcast of the Event was
advertised on [Purple Pig Pub’s] Facebook page, Docket No. 18-2 at 5, ¶ 15; Docket
No. 18-6 at 1, ¶ 3, a screenshot submitted by plaintiff indicates that the only publicity
regarding the event came from a patron’s post on the Facebook page. See Docket
No.18-6 at 7. In light of the foregoing, defendants have not provided sufficient
information to justify an enhanced damages award in the amount of $20,000. The
Court nevertheless recognizes the importance of addressing the willfulness of
defendants’ conduct and deterring future violations. See Gutierrez, 544 F. Supp. 2d at
1185. For purposes of achieving these goals, the Court finds an enhanced damages
award of $9,000, or treble the statutory damages, to be appropriate under
§ 605(e)(3)(C)(ii). See id. (finding that an award equal to “treble the principal damages”
would be adequate to address the willfulness of defendants’ conduct and deter future

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violations); see also Taylor, 2014 WL 3373448, at *3 (following logic in Gutierrez to
award enhanced damages in the amount of $4,500, or treble the statutory damages).
D. Attorney’s Fees and Costs
Under 47 U.S.C. § 605(e)(3)(B)(iii), the Court shall award a prevailing plaintiff its
“full costs,” including “reasonable attorneys’ fees.” Plaintiff requests costs in the
amount of $400, see Docket No. 18-1 at 12; Docket No. 18-6 at 2, ¶ 11, which the
Court finds reasonable in light of the $400 filing fee for civil actions in the District of
Colorado. The Court will also grant plaintiff’s request to file a separate application for
attorney’s fees. See Docket No. 18-1 at 5, n.1; Docket No. 18-6 at 2, ¶ 10.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiff’s Notice of Motion and Motion for Default Judgment
[Docket No. 18] is GRANTED in part and DENIED in part as stated in this order. It is
further
ORDERED that the Clerk shall enter judgment in favor of Joe Hand Promotions,
Inc. and against Purple Pig, LLC and Joe Andrew Trujillo in the amount of $12,400.00,
consisting of: (1) statutory damages in the amount of $3,000.00 pursuant to 47 U.S.C.
§ 605(e)(3)(C)(i)(II); (2) enhanced damages in the amount of $9,000.00 pursuant to 47
U.S.C. § 605(e)(3)(C)(ii); and (3) costs in the amount of $400.00 pursuant to 47 U.S.C.
§ 605(e)(3)(B)(iii). It is further
ORDERED that plaintiff may seek an award of attorney’s fees pursuant to 47
U.S.C. § 605(e)(3)(B)(iii) by filing a motion for attorney’s fees that complies with Fed. R.

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Civ. P. 54(d)(2) and D.C.COLO.LCivR 54.3. It is further
ORDERED that this case is closed.

DATED September 13, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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