J & J Sports Productions, Inc. v. Matrixx Bar & Grill LLC
Filing
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OPINION AND ORDER GRANTING 7 Motion for Default Judgment Against Defendant Matrixx Bar & Grill LLC. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff against Defendant for $4,400 in statutory damages and $1,445 in attorneys' fees. Signed by Judge William S. Duffey, Jr on 4/3/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
J & J SPORTS PRODUCTIONS,
INC.,
Plaintiff,
v.
1:13-cv-3793-WSD
MATRIXX BAR & GRILL LLC,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Application for Default
Judgment Against Defendant Matrixx Bar & Grill LLC [7] (“Motion for Default
Judgment”).
I.
BACKGROUND
Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) claims that Defendant
Matrixx Bar & Grill LLC (“Defendant”) violated certain provisions of the
Communications Act of 1934, 47 U.S.C. §§ 553, 605, by unlawfully intercepting,
receiving, and exhibiting “Manny Pacquiao v. Juan Manuel Marquez –WBO
Welterweight Championship Fight Program” (the “Program”), a telecast of a fight
broadcast on November 12, 2011. (See Compl. [1].)
Plaintiff owned the exclusive television distribution rights to the Program.
(Id. ¶ 7.) Commercial establishments could show the Program to their patrons if
they were contractually authorized by Plaintiff to do so. (See id. ¶¶ 8, 10.)
On November 13, 2011, Donald L. Perkins, Jr., an investigator hired by
Plaintiff, visited Defendant’s establishment, “Matrixx Bar & Grill,” located at 4807
Old National Highway, College Park, Georgia. (Perkins Aff. [7-2] at 17–18.)
Perkins paid a cover charge of $10 to enter the establishment. (See id.) Once
inside, Perkins observed that the Program was being exhibited and that, over the
course of thirty minutes, approximately 60 to 80 people were inside Defendant’s
establishment. (Id.) Defendant had not contracted with Plaintiff to show the
Program. (Gagliardi Aff. ¶ 7 [7-2] at 21.)
On November 15, 2013, Plaintiff filed its Complaint alleging two counts:
(1) unauthorized reception and publication of radio or satellite transmissions in
violation of 47 U.S.C. § 605 and (2) unauthorized reception and publication of
cable service in violation of 47 U.S.C. § 553. On January 13, 2014, Plaintiff
served Defendant with process in this matter. (Proof of Service [5] at 2.) As of the
date of this Order, Defendant has not answered or otherwise responded to
Plaintiff’s Complaint.
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On February 18, 2014, Plaintiff filed its Application for Clerk’s Entry of
Default [6] against Defendant, and, on February 19, 2014, the Clerk issued an entry
of default. On February 26, 2014, Plaintiff filed its Motion for Default Judgment
seeking a default judgment against Defendant.
II.
DISCUSSION
A.
Legal Standard
Rule 55(b) of the Federal Rules of Civil Procedure governs the entry of
default judgments:
(1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum
that can be made certain by computation, the clerk—on the
plaintiff’s request, with an affidavit showing the amount due—
must enter judgment for that amount and costs against a defendant
who has been defaulted for not appearing and who is neither a
minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court
for a default judgment. . . . If the party against whom a default
judgment is sought has appeared personally or by a representative,
that party or its representative must be served with written notice
of the application at least 7 days before the hearing. The court
may conduct hearings or make referrals . . . when, to enter or
effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
“The entry of a default judgment is committed to the discretion of the district
court . . . .” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1576 (11th Cir. 1985) (citing
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10A Charles Alan Wright et al., Federal Practice and Procedure § 2685 (1983)).
“In considering a motion for entry of default judgment, a court must investigate the
legal sufficiency of the allegations of the plaintiff’s complaint.” Bruce v. WalMart Stores, Inc., 699 F. Supp. 905, 906 (N.D. Ga. 1988).
B.
Analysis
1.
Liability
In its Complaint, Plaintiff seeks relief under two different statutory
provisions—47 U.S.C. § 605, or, alternatively, 47 U.S.C. § 553.1 Section 605
provides:
No 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.
47 U.S.C. § 605(a) (2006).2 Section 553 provides that “[n]o person shall intercept
or receive . . . any communications service offered over a cable system, unless
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Plaintiff can only recover under one statute. See, e.g., J & J Sports Prods., Inc. v.
Blackwell, No. 2:07-cv-1058, 2009 WL 2171897, at *2 (M.D. Ala. July 21, 2009);
J & J Sports Prods., Inc. v. Guzman, No. C 08-05469, 2009 WL 1034218, at *2
(N.D. Cal. Apr. 16, 2009).
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specifically authorized to do so by a cable operator or as may otherwise be
specifically authorized by law.” Id. § 553(a)(1).
There is a split among the circuits as to what activity each section covers and
how to reconcile potential overlap in the provisions.3 Some circuits have held that
§ 605 applies to satellite transmissions and cable programming transmitted over a
cable network. See Int’l Cablevision, Inc. v. Sykes, 75 F.3d 123 (2d Cir. 1996)
(holding that both § 605 and § 553 cover interception of cable programming
transmitted over a cable network). Other circuits have held that only § 553 covers
cable programming transmitted over a cable network. See TRK Cable Co. v.
Cable City Corp., 267 F.3d 196 (3d Cir. 2001) (Ҥ 605 encompasses the
interception of satellite transmissions ‘to the extent reception or interception occurs
prior or not in connection with, distribution of the service over a cable system,’ and
no more. Once a satellite transmission reaches a cable system’s wire distribution
phase, it is subject to § 553 and is no longer within the purview of § 605.”); United
States v. Norris, 88 F.3d 462, 466 (7th Cir. 1996) (affirming district court’s finding
2
Satellite signals are considered “radio communication.” Scientific-Atlanta, Inc.
v. Fenley, No. 1:95-cv-1584-JEC, 1997 WL 33543688, at *12 (N.D. Ga. Jan. 14,
2007) (citing United States v. Howard, 13 F.3d 1500, 1501 (11th Cir. 1994)).
3
The Eleventh Circuit has not addressed this issue.
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that “where cable programming is broadcast through the air and then retransmitted
by a local cable company over a cable network, § 605 should govern the
interception of the satellite or radio transmission through the air, while § 553(a)
should govern the interception of the retransmission over a cable network”). The
Court is persuaded by the Third and Seventh Circuits’ interpretation of § 605’s
plain language, and finds that § 605 prohibits commercial establishments from
intercepting and broadcasting satellite programming, while § 553 addresses
interceptions that occur through a cable network. See Scientific-Atlanta, 1997 WL
33543688, at *14; CSC Holdings, Inc. v. Kimtron, Inc., 47 F. Supp. 2d 1361, 1364
(S.D. Fla. 1999).4
Plaintiff does not allege in its Complaint or Motion for Default Judgment
whether the Program was illegally obtained and broadcast through the interception
of satellite or cable transmissions. Plaintiff instead states that Defendant “could
only lawfully obtain the Program if Plaintiff had contracted with the Defendant for
the rights to show the Program,” and that “[t]herefore, Defendant must have
4
Plaintiff appears to accept this interpretation as well. (Pl.’s Mem. Supp. Mot.
Default J. [7-2] at 4 (“The majority of the Courts have found that Section 605
applies to cases where the end-user offender obtained a proprietary broadcast by
way of a satellite (rather than cable) television programming system.”).)
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undertaken specific wrongful actions to intercept and/or receive and broadcast the
encrypted telecast.” (Pl.’s Mem. Supp. Mot. Default J. [7-2] at 5.)
The Court elects to “giv[e] Plaintiff the benefit of the doubt” and “not fault[]
Plaintiff for failing to plead the particular manner of interception since this may be
exclusively in Defendant[’s] knowledge.” See J & J Sports Prods., Inc. v.
Gallegos, Civ. Action No. 08-201, 2008 WL 3193157, at *3 (D.N.J. Aug. 5, 2008).
Plaintiff has alleged and presented sufficient evidence that Defendant violated the
common elements of both § 605 and § 553. Plaintiff has alleged and provided
evidence that Defendant intercepted the Program, Defendant did not pay for the
right to receive the transmission, and Defendant displayed the broadcast to patrons
of its establishment.
2.
Damages
The Court may only award damages for default judgment without a hearing
if “the amount claimed is a liquidated sum or one capable of mathematical
calculation.” Adolph Coors Co. v. Movement Against Racism and the Klan, 777
F.2d 1538, 1543 (11th Cir. 1985). Under such circumstances, the record must
“adequately reflect[] the basis for award via . . . demonstration by detailed
affidavits establishing the necessary facts.” Id. at 1544. “[A] plaintiff must also
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establish that the amount is reasonable under the circumstances.” Pitts ex rel. Pitts
v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356 (S.D. Ga. 2004).
Under § 605, a court may award statutory damages between $1,000 and
$10,000 for each violation, 47 U.S.C. § 605(e)(3)(C)(i)(II), and if a violation is
“committed willfully and for purposes of direct or indirect commercial advantage
or private financial gain,” a court may award up to an additional $100,000, id.
§ 605(e)(3)(C)(ii). Under § 553, a court may grant statutory damages between
$250 and $10,000 per violation, id. § 553(c)(3)(A)(ii), and up to $50,000 may be
awarded if the court finds that the act was violated “willfully and for purposes of
commercial advantage or private financial gain,” id. § 553(c)(3)(B). In addition to
damages, § 605 provides that a court shall, and § 553 provides that a court may,
award the plaintiff full costs of bringing an action, including reasonable attorneys’
fees. Id. § 605(e)(3)(B)(iii), § 553(c)(2)(C).
Plaintiff seeks damages of $100,000 for the violation of § 605(e)(3)(C)(i)(II)
and § 553(c)(3)(A)(ii)), including enhanced damages for Defendant’s willfulness,
pursuant to § 605(e)(3)(C)(ii). Plaintiff also requests its attorneys’ fees, in the
amount of $1,445, and costs.
The difference in the authorized range of statutory damages permitted by
§ 605 and § 553 is immaterial here, because the Court declines to award the
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minimum or maximum amount of statutory damages under either section. The
starting point for Plaintiff’s statutory damages is $2,200.00, because that is what
Defendant would have had to pay, at a minimum, to legitimately purchase the right
to broadcast the Program. (See Gagliardi Aff. ¶ 8 [7-2] at 21; id. Ex 1 [7-2] at 28.)
The Court also concludes that statutory damages will deter others from unlawful
broadcasts. The Court determines that statutory damages of $4,400 is an
appropriate award in this case because Defendant had to undertake affirmative and
willful steps to intercept and illegally broadcast the Program. See Blackwell, 2009
WL 2171897, at *3 (awarding $2,500 in statutory damages as deterrence where
base price would have been $1,200); J & J Sports Prods., Inc. v. Guzman, No. C
08-05469, 2009 WL 1034218, at *3 (N.D. Cal. Apr. 16, 2009) (setting statutory
damages award at twice the base level price of the program to deter future
violations).
The Court further finds that Plaintiff is entitled to its attorneys’ fees and
costs incurred. Plaintiff submitted its attorneys’ invoice (DE 7, at 5–6) showing
that it was billed $1,445 in attorneys’ fees in this matter, as follows: 2.9 hours by
an attorney charging $375 per hour; and 1.3 hours by attorney charging $275 per
hour. The Court finds that these fees are reasonable, and Plaintiff is entitled to
recover the amount requested.
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Application for Default
Judgment Against Defendant Matrixx Bar & Grill LLC [7] is GRANTED. The
Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff against
Defendant for $4,400 in statutory damages and $1,445 in attorneys’ fees.
SO ORDERED this 3rd day of April, 2014.
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