JOE HAND PROMOTIONS INC v. BAHAMA BOBS COUNTRY CLUB LLC et al
Filing
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CORRECTED ORDER re 18 Order on Motion for Default Judgment. The Court finds that the Plaintiff should be awarded $113,087.49: attorney's fees and costs in the amount of $3,087.49 (4.6 hours at $375 an hour, plus 2.5 hours at $275 an hour, plus $674.99 in costs), and statutory damages in the amount of $110,000 ($10,000 maximum for a violating subsection (a), plus $100,000 maximum for violating paragraph (4)). Accordingly, Defendants Bahama Bob's Country Club LLC d/b/a Bahama Bob's and Robert Peek ("Bahama Bob's") are ORDERED to pay the Plaintiff $113,087.49. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/5/2018. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
BAHAMA BOB’S COUNTRY CLUB
LLC d/b/a BAHAMA BOB’S,
ROBERT PEEK, CHARLES LEE
POTEAT,
Defendants.
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CIVIL ACTION NO. 5:18-CV-164 (MTT)
CORRECTED ORDER
Before the Court is Plaintiff Joe Hand Promotions, Inc.’s Motion for a Default
Judgment as to Defendants Bahama Bob’s Country Club LLC d/b/a Bahama Bob’s and
Robert Peek (“Bahama Bob’s”). Doc. 15. For the following reasons, the motion is
GRANTED, and the Plaintiff is awarded $113,087.49.1
I. BACKGROUND
On May 15, 2018, the Plaintiff filed a complaint alleging that Defendants violated
47 U.S.C. Section 605. The Plaintiff alleges Bahama Bob’s violated § 605 by “pirat[ing]
Plaintiff’s licensed exhibition of the [televised] Program and infring[ing] upon Plaintiff’s
exclusive rights while avoiding proper authorization and payment to Plaintiff.” Doc. 1 ¶
14.
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The Court previously awarded a default judgment to the Plaintiff against Defendant Bahama Bob’s
Country Club LLC d/b/a Bahama Bob’s and Charles Lee Poteat in the amount of $111,527.50. Docs. 13;
14.
On May 28, 2018, the Defendants were served with summons and complaint in
accordance with Fed. R. Civ. P. 4 but have failed to file any responsive pleadings. A
true and correct copy of proof was filed with the Court on August 10, 2018. Doc. 11.
On August 21, 2018, the Clerk granted an entry of default. The Defendant has not
moved to set aside the entry of default. On September 7, 2018, the Plaintiff moved for a
default judgment. Doc. 15.
II. DEFAULT JUDGMENT STANDARD
At a party’s request and following the Clerk’s entry of default, the Court may
enter a default judgment against a defendant who has failed to plead or otherwise
defend. See Fed. R. Civ. P. 55; Solaroll Shade & Shutter Corp., Inc. v. Bio-Energy
Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986). Entry of default judgment is committed
to the discretion of the Court. Hamm v. Dekalb Cty., 774 F.2d 1567, 1576 (11th Cir.
1985). However, default judgment does not follow automatically from an entry of
default. The Court “must ensure that the well-pleaded allegations in the complaint,
which are taken as true due to the default, actually state a substantive cause of action
and that there is a substantive, sufficient basis in the pleadings for the particular relief
sought.” Tyco Fire & Sec., LLC v. Alcocer, 218 Fed. App’x 860, 863 (11th Cir. 2007);
see also Nishimatsu Constr. Co. Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975).2 As to requests for damages, the Court may conduct evidentiary hearings,
although “no such hearing is required where all essential evidence is already of record.”
S.E.C. v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir. 2005).
2
The Eleventh Circuit has adopted as binding all decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).
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III. JURISDICTION
To enter a valid default judgment, the Court must, of course, have both personal
and subject matter jurisdiction. Rash v. Rash, 173 F.3d 1376, 1381 (11th Cir. 1991);
see also Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatoviskiy, 242 F.3d 322, 324 (5th
Cir. 2001) (“When entry of default is sought against a party who has failed to plead or
otherwise defend, the district court has an affirmative duty to look into its jurisdiction
[over both] the subject matter and the parties.”). Here, the Court has subject matter
jurisdiction over the Plaintiff’s § 605 claim. 47 U.S.C. § 605(e)(3)(A); see also 28 U.S.C.
§ 1331.
Moreover, the allegations in the Plaintiff’s Complaint sufficiently allege that the
Court has personal jurisdiction over the Defendants. Particularly, Bahama Bob’s “is a
business entity . . . that conducts business in the State of Georgia . . . [and is] located at
2132 Macon Road (US Highway 41), Perry, GA 31069,” which is located within the
Middle District of Georgia. Doc. 1 ¶ 2; Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011) (holding that a corporation’s place of incorporation
and principal place of business are bases for general jurisdiction).
In sum, the Court has both subject matter and personal jurisdiction over this
matter.
IV. VIOLATIONS OF 47 U.S.C. § 605
Subsection (a) of 47 U.S.C. § 605 prohibits any person or entity from publishing
programs via wire or radio to anyone other than the addressee who is authorized to
view the program for private viewing. Paragraph (4) of 47 U.S.C. § 605(e) prohibits any
person or entity from manufacturing, assembling, modifying, importing, exporting,
selling, or distributing “any electronic, mechanical, or other device or equipment . . . [for
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the] unauthorized decryption of satellite cable programming.” Any person or entity
aggrieved by violations of this statute may be awarded actual or statutory damages by a
federal district court. 47 U.S.C. § 605(e)(3)(C)(i)(II). A commercial establishment is
thus prohibited from displaying such programs whose nationwide distribution rights are
owned by a separate entity to its patrons without paying a commercial licensing fee to
that entity. See, e.g., J & J Sports Prods., Inc. v. Taqueria Jalisco, Inc., 491 F. App’x
962, 963 (11th Cir. 2012).
The Plaintiff alleges that Bahama Bob’s willfully violated § 605 “with the purpose
and intent to secure a commercial advantage and private financial gain.” Doc. 1 ¶ 14.
The Plaintiff’s allegations establish that Bahama Bob’s intercepted or received at its
commercial establishment, via unauthorized satellite transmission or receipt over a
cable system, the televised Program that the Plaintiff had the exclusive right to license
and distribute to such commercial establishments. Id. ¶¶ 9, 12. The Plaintiff alleges
that Bahama Bob’s exhibited the program to its patrons at its commercial establishment
without paying the commercial licensing fee to or receiving proper authorization to do so
from the Plaintiff. Id. ¶ 13. The Plaintiff’s allegations further establish that Bahama
Bob’s thus “infringed upon Plaintiff’s exclusive rights.” Id. ¶ 14. Therefore, by virtue of
the actions described above and Bahama Bob’s default, Bahama Bob’s violated
subsection (a) of § 605 and paragraph (4) of § 605(e), and the Plaintiff is the “aggrieved
party” in this action under § 605.
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V. DAMAGES
A.
Statutory Damages under 47 U.S.C. § 605
Any person or entity aggrieved by any violation of this statute may be awarded
actual or statutory damages “at the election of the aggrieved party.” 47 U.S.C. §
605(e)(3)(C)(i). Statutory damages awarded by any court for a violation of subsection
(a) of § 605 must not be “less than $1,000 or more than $10,000.” 47 U.S.C. §
605(e)(3)(C)(i)(II). Statutory damages awarded by any court for a violation of paragraph
(4) of § 605 must not be “less than $10,000 or more than $100,000.” Id. If the court
finds that the violation was committed willfully and for financial gain, it may award
additional damages not to exceed $100,000 for each statutory violation. 47 U.S.C. §
605(e)(3)(C)(ii). Defendants in such actions are not entitled to a jury trial with respect to
statutory damages. J & J Sports Prods., Inc., 491 F. App’x at 963.
Given Bahama Bob’s violations of subsection (a) and paragraph (4) of § 605 and
its failure to respond to the Plaintiff’s Complaint, the Court finds appropriate an award of
the statutory maximums of each violation totaling $110,000.
B.
Attorney’s Fees and Costs
Under § 605, the Court “shall direct the recovery of full costs, including
reasonable attorneys’ fees to an aggrieved party who prevails.” 47 U.S.C. §
605(e)(3)(B)(iii). “The starting point for determining the amount of a reasonable fee is
the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (citation
and quotation marks omitted). This number is called the “lodestar,” and “there is a
strong presumption that the lodestar is the reasonable sum the attorneys deserve.” Id.
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(citation and quotation marks omitted). The district court should exclude “hours that
were not reasonably expended,” such as work that was “excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). In
determining whether a lodestar is reasonable, the district court should consider twelve
factors enumerated in Johnson v. Georgia Highway Express, Inc.: (1) the time and labor
required; (2) the novelty and difficulty; (3) the skill required to perform the legal service
properly; (4) the opportunity cost of the attorney’s inability to work on other cases as a
result of accepting this one; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount of money at issue and the results obtained; (9) the experience and ability of the
attorneys; (10) the undesirability of the case; (11) the nature and length of the
professional relationship with the client and (12) attorney’s fee awards in similar cases.
488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blancher v.
Bergeron, 489 U.S. 87 (1989); see also Blancher, 489 U.S. at 92 (“Johnson’s ‘list of 12’
thus provides a useful catalog of the many factors to be considered in assessing the
reasonableness of an award of attorney’s fees.”). Downward adjustment of the lodestar
is “merited only if the prevailing party was partially successful in its efforts,” a
determination the district court makes on a case-by-case basis. Resolution Trust Corp.
v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir. 1993).
By failing to file any response to Plaintiff’s Complaint or Motion for Default
Judgment, Bahama Bob’s has not contested the availability of attorney’s fees and costs,
the costs incurred by the Plaintiff, the time expended by the Plaintiff’s counsel, the
Plaintiff’s counsel’s rates of $375 per hour and $275 per hour, or any of the other
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Johnson factors. The Court finds the 4.6 hours of time expended by the Plaintiff’s
senior counsel was necessary, and his/her hourly rate of $375 to be reasonable given
his/her experience. The Court also finds the 2.5 hours of time expended by the
Plaintiff’s junior counsel necessary, and his/her hourly rate of $275 to be reasonable
given his/her experience. Counsel also provided documentation reflecting filing fees in
the amount of $400, service of process fees in the amount of $250, printing costs in the
amount of $15.70, and postage costs in the amount of $9.29, totaling $674.99. Docs.
17; 17-1. Thus, the Plaintiff is entitled to recover attorney’s fees and costs in the
amount of $3,087.49.
VI. CONCLUSION
For the reasons discussed above, the Plaintiff’s Motion for Default Judgment is
GRANTED. The Court finds that the Plaintiff should be awarded $113,087.49:
attorney’s fees and costs in the amount of $3,087.49 (4.6 hours at $375 an hour, plus
2.5 hours at $275 an hour, plus $674.99 in costs), and statutory damages in the amount
of $110,000 ($10,000 maximum for a violating subsection (a), plus $100,000 maximum
for violating paragraph (4)). Accordingly, Defendants Bahama Bob’s Country Club LLC
d/b/a Bahama Bob’s and Robert Peek (“Bahama Bob’s”) are ORDERED to pay the
Plaintiff $113,087.49.
SO ORDERED, this 5th day of October, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT
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