J&J Sports Productions, Inc. v. Flame Bar & Grill, LLC et al

Filing 12

ORDER granting in part and denying in part 11 Motion for Default Judgment. The Court GRANTS the motion with respect to liability, damages, and fees in the amount of $21,200. The Court DENIES the motion for amounts above $21,200. The Clerk is instructed to ENTER JUDGMENT in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $21,200 and to CLOSE this case. Signed by Chief Judge J. Randal Hall on 10/24/2018. (maa)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

J & J SPORTS PRODUCTIONS, INC.,

■k
■k

Plaintiff,

*

V.

*

FLAME BAR & GRILL,

LLC and

RAIFORD C.

CV 118-061

JR.,

DUNBAR,

Defendants.

ORDER

Defendant Raiford Dunbar Jr.

at Defendant Flame Bar & Grill,

"Defendants")

on

May

2,

(''Dunbar") showed a boxing match

LLC

2015,

(''Flame Bar")

without

first

permission of J & J Sports Productions, Inc.

(collectively,

obtaining

the

("Plaintiff") .

In

response. Plaintiff filed this lawsuit on March 29, 2018,^ alleging
violations

of

federal

law

and

requesting

$110,000

in

damages.

Defendants have not appeared, the Clerk entered an entry of default

on May 1,

2018

judgment.

Plaintiff's motion

DENIED

IN

(Doc.

10),

and Plaintiff now seeks a default
(Doc.

11)

is GRANTED IN PART and

PART.

1 Plaintiff filed the action within the statute of limitations.

Inc. V. Wright, 350 F. Supp. 2d 1048, 1055 (N.D. Ga. 2004)
limitations

for federal cause of action under 47 U.S.C.

See DirecTV,

(finding statute of
§§ 553,

605 is

four

years because sections parallel state cause of action under O.C.G.A. § 46-5-2
(2012), which has a four-year statute of limitations); see also O.C.G.A. § 9-331 (2007) ("Actions for injuries to personalty shall be brought within four
years after the right of action accrues.") .

I. Background

Plaintiff is ''a commercial distributor of sporting events."

{Compl., Doc. 1, SI 10.) As such, it held the ''exclusive nationwide
television distribution rights to 'The Fight of the Century' Floyd

Mayweather, Jr. v. Manny Pacquiao" (the "Program") on May 2, 2015.
(Id.

SI 8.)

Businesses

could

not

show

the

Program

without

purchasing the rights to do so from Plaintiff. (See id. SISI 9-11.)
Defendants did not purchase those rights.

(Mot. for Default J.,

Doc. 11., SI 4.)

Plaintiff alleges that, in

May of 2015,

Dunbar

was "a

controlling manager and/or owner" of Flame Bar, located at 830
Broad Street, Augusta, Georgia. (Compl., SISI 12, 14.) On the night

of the Program, Plaintiff sent an investigator to Flame Bar.

Investigator Aff., Doc. 11-2, at 14-15.)

(See

To enter the bar, the

investigator paid a ten-dollar cover charge.

(Id. at 14.)

While

inside the bar, the investigator witnessed the Program playing on
six to nine televisions.^

(Id.)

According to the investigator.

Flame Bar "had about 400 people in that club." (Id. at 15.) Flame
Bar also advertised the event on social media.

(Advertisement at

17.)

The advertisement contained the following offers: "SHOWING

FIGHT

ON

ALL

TABLES," and

18

FLAT

SCREEN

TV'S," "BOOK

"$2 DRINKS & $2 BEERS."

YOUR

VIP

SECTION

&

(Id.)

2 According to Flame Bar's advertisement, it planned to show the Program on all
eighteen of its televisions. (Advertisement, Doc. 11-2, at 17.)
2

Because Defendants were not authorized to show the Program,

Plaintiff filed this lawsuit asserting

§§ 553 and 605.

claims under 47 U.S.C.

Plaintiff served Defendants, but neither has

appeared in this action nor responded to the complaint.
9.)

(See Doc.

Plaintiff moved for the Clerk's entry of default, which the

Clerk entered on May 1, 2018.

(Docs. 9, 10.)

Plaintiff now moves

for default judgment.

II. Discussion

Under Federal Rule of Civil Procedure 55, a court may enter

default judgment against a defendant when: (1) both subject matter

and personal jurisdiction exist, (2) the allegations in the
complaint state a claim against the defendant, and (3) the

plaintiff shows the damages to which it is entitled. See Pitts ex
rel. Pitts V. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356-58
(S.D. Ga. 2004).

'MA] defendant's default does not in itself warrant the court

in entering a default judgment." Nishimatsu Constr. Co. v. Houston
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

is

Default judgment

warranted only "when there is a sufficient basis in the

pleadings for the judgment entered."

Surtain v. Hamlin Terrace

Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (citation and internal

quotation marks omitted).

And although a "defaulted defendant is

deemed to admit the plaintiff's well-pleaded allegations of fact.

he is not held to admit facts that are not well-pleaded or to admit
conclusions of law."

Id. (citation omitted).

A. Jurisdiction

Before entering default judgment, a court must ensure that it

has .subject

matter

jurisdiction

over

jurisdiction over the defendants.

the

case

and

personal

Here, the Court has both.

Because Plaintiff's claims arise under federal law, the Court has

federal question jurisdiction under 28 U.S.C. § 1331.

Flame Bar

has its principal place of business in Augusta, Georgia.
^ 6.)

(Compl.

Dunbar is the owner of Flame Bar and resides in Hephzibah,

Georgia. (I^ SI 7; Investigator Aff. at 15.) Thus, the Court has
personal jurisdiction over Defendants.
B. Liability

Plaintiff asserts claims under 47 U.S.C. §§ 553 and 605, which

prohibit the interception of cable and satellite programming.
Although the Eleventh Circuit has not yet addressed the issue,
other courts, including district courts in the Eleventh Circuit,

have concluded plaintiffs may not recover under both sections 605
and 553 for the same conduct.

TKR Cable Co. v. Cable City Corp.,

267 F.3d 196, 207 (3d Cir. 2001); United States v. Norris, 88 F.3d
462, 469 (7th Cir. 1996); J & J Sports Prods., Inc. v. WBDiversified

Auto

Servs.,

Inc.,

No.

1:15-cv-2171-WSD,

2016

WL

264935, at *2 (N.D. Ga. Jan. 21, 2016). Rather, according to these
courts, ''[s]ection 605 prohibits commercial establishments from

intercepting

and

broadcasting

satellite
4

programming,

while

[s]ection 553 addresses interceptions that occur through a cable
network."

omitted).

WB-Diversified,

2016

WL

269435,

at

*2

(citation

Like those courts, this Court concludes a plaintiff may

not recover under both statutes.

Plaintiff
Defendants

does

obtained

not
and

satellite transmission.

specify
showed

in

the

its

complaint

Program

through

whether
cable

or

However, because the elements of a claim

under sections 605 and 553 are the same, the Court will ^^not fault

[]

Plaintiff for

interception

knowledge."

since

failing

this

to

may

plead

be

the

particular

exclusively in

Id. at *3 (alterations

in

manner

of

Defendant['s]

original)

(citation

omitted).

To succeed on a claim under either statute, a plaintiff must

show the defendant: (1) ''intercepted the program," (2) "did not

pay for the right to receive the transmission," and (3) "displayed
the program to patrons of [its] establishment."

J & J Sports

Prods., Inc. v. Just Fam, LLC, No. 1:09-cv-03072-JOF, 2010 WL
2640078, at *2 (N.D. Ga. June 28, 2010) (citation omitted).

To

hold an owner or officer of a venue liable, a plaintiff must show

the owner or officer had a "right and ability to supervise the
violations, and that he had a strong financial interest in such
activities." Joe Hand Promotions, Inc. v. Blanchard, No. 409CV100,

2010 WL 1838067, at *3 (S.D. Ga. May 3, 2010)(citation omitted).

If a plaintiff establishes both a valid claim and the owner's
liability,

the

court

can

hold
5

the

corporate

defendant

and

individual owner jointly and severally liable.

See Kingvision

Pay-Per-View Corp., Ltd. v. El Torito Supermarket, Inc., No. 6:06cv-657-Orl-18KRS, 2007 WL 1794158, at *3 {M.D. Fla. June 19, 2007)

(^^It appears that joint and several liability is available for
violations

of the

Communications

Act."); see

also

Cable/Home

Commc^n Corp. v. Network Prods., Inc., 902 F.2d 829, 852 (11th
Cir. 1990) (affirmed award of joint and several damages between
corporate and individual defendants).
Plaintiff

established

liability as owner.

both

a

valid

claim

and

Dunbar's

First, Plaintiff established a valid claim by

showing: (1) the Program ''cannot be mistakenly, innocently[,] or

accidentally intercepted" (Gagliardi Aff., Doc. 11-2, at 28, SI 9);
(2) Defendants "did not contract with the Plaintiff or pay the

necessary sublicense fee required" to televise the Program (Compl.
SI 11); and (3) Defendants showed the Program (id. SI 12).

Second,

Plaintiff established Dunbar's liability because, by virtue of the

default, Dunbar admits: (1) he had supervisory control over Flame

Bar (Compl. SISI 7, 14) and (2) he received financial benefit from
it (id. SI 16).

Therefore, Defendants are jointly and severally

liable for any damages awarded.
C. Damages

Even with a default judgment, "[a] court has an obligation to
assure that there is a legitimate basis for any damage award it
enters."

Anheuser-Busch, Inc. v. Philpot, 317 F.3d 1264, 1266

(11th Cir. 2003).

But a court need not conduct an evidentiary
6

hearing when ''the plaintiff's claim is for a sum certain or a sum
that can

be

made

certain

by computation."

Fed.

R.

Civ.

P.

55(b)(1); see SEC v. Smyth, 420 F.3d 1225, 1231 (11th Cir. 2005).
Both sections 605 and 553 allow plaintiffs to pursue either
actual damages or statutory damages.

damages.

Plaintiff elects statutory

(Mem. in Supp. of Mot. for Default J., Doc. 11-2, at 5.)

For statutory damages under section 605, a court may award between
$1,000

and

$10,000

§ 605(e)(3)(C)(i)(II).

committed

willfully

for

each

violation.

47

U.S.C.

If a "court finds that the violation was

and

for

purposes

of

direct

or

indirect

commercial advantage or private financial gain," a court may award

up

to

an

additional

§ 605(e)(3)(C)(ii).

$100,000

in

enhanced

damages.

Id.

Under section 553, a court may award between

$250 and $10,000 in statutory damages for each violation, id.

§ 553(c)(3)(A)(ii), and up to $50,000 in enhanced damages, id.
§ 553(c)(3)(B).

Plaintiff asks the Court to award a total of

$110,000 in statutory and enhanced damages.

(Mot. for Default J.

SI 5.)

1. Stabubory Damages

Courts in this circuit, including this Court, "have ordered

defendants to pay, as statutory damages, the amount of the license
fee that they would have been charged if they had actually been
authorized to show the program."

Joe Hand Promotions, Inc. v.

Flynt, No. 6:15-cv-56, 2016 WL 93861, at *3 (S.D. Ga. Jan. 7, 2016)

(quoting Blanchard, 2010 WL 1838067, at *3). Plaintiff determines
7

the rate a venue must pay to show a particular program based on

the venue's capacity.

(Rate Card, Doc. 11-2, Ex. 1.)

Thus, for

the Court to determine the proper damages amount. Plaintiff must

allege or otherwise indicate Flame Bar's capacity.

Blanchard,

2010 WL 1838067, at *3 (citation omitted) (court could only apply

the minimum statutory damages amount because plaintiff did ^^not

allege[]

or

otherwise

indicate[]

the

[defendant's]

maximum

occupancy").

Plaintiff s investigator fails to state Flame Bar's capacity

expressly; the investigator only states ^""they had about 400 people
in that club."

Nonetheless, the Court finds the investigator's

statement enough to ^^otherwise indicate" Flame Bar's capacity as

400.

With a capacity of 400, Defendants should have paid $12,000

to show the Program, which is more than the $10,000 maximum under
the statutes.

The Court, therefore, awards Plaintiff $10,000.

2. Enhanced Damages

Plaintiff also seeks $100,000 in enhanced damages because.

Plaintiff contends. Defendants willfully committed the violation.

A court, in its discretion, may award enhanced damages when the
violation was ^^committed willfully and for purposes of direct or

indirect commercial advantage or private financial gain." 47 U.S.C

§§ 605(e)(3)(C)(ii), 553(c)(3)(B).

Willful conduct is ^^conduct

showing disregard for the governing statute and an indifference to

its requirements."

Cable/Home, 902 F.2d at 851 (citation and

internal quotation marks omitted).

To determine

whether a

defendant acted willfully, many courts examine willfulness factors
such as ^^the number of televisions broadcasting the event, the

existence of a cover charge, sale of food or drink, advertisement
of the event in the defendants' bar, and a demonstration that the

defendants made more money or conducted additional business by

illegally broadcasting the event."

Flynt, 2016 WL 93861, at *3

{citation omitted).

If there is a willful violation, determining the amount of
the enhancement is left to the discretion of the court.

In some

cases, courts find it appropriate to enhance the award by three
times the statutory award. See Blanchard, 2010 WL 1838067, at *4-

5 (awarded $1,000 in statutory damages and three times that for
enhanced damages; $4,000 total damages).

In other cases, courts

choose a flat enhancement rate not based on the statutory amount.

See Kinqvision Pay-Per-View, Ltd., v. Rodriguez, No. 02 Civ.
7972(SHS), 2003 WL 548891, at *2 (S.D.N.Y.

Feb. 25, 2003)

(^^enhancement of $1,000 for willfulness"). Regardless of a court s

chosen equation, the court should ^^consider the deterrent effect
of the award, with an eye toward imposing an award that is
substantial enough to discourage future lawless conduct, but not
so

severe

that

it

seriously

defendant's business."

impairs

the

viability

of

the

J & J Sports Prods., Inc. v. McCausland,

No. l:10-cv-01564-TWP-DML, 2012 WL 113786, at *4 (S.D. Ind. Jan.

13, 2010) (citation omitted); see also Cable/Home, 902 F.2d at 852
("[D]istrict court should consider both the willfulness of the
9

defendant's

conduct

and

the

deterrent

value

of

the

sanction

imposed.").

Here,

Defendants'

violation

was

willful.

Defendants

televised the Program on six to eighteen televisions, charged a
ten-dollar cover, offered discounted drinks, and advertised the
event

on

Flame

Bar's

social media

account.

The

only factor

Plaintiff fails to show is that Defendants' profits increased

because of the Program; however. Plaintiff has at least shown Flame

Bar ''was packed." {Investigator Aff. at 15.) Plaintiff has shown
that Defendants' violation was willful; thus, enhanced damages are
appropriate.

Turning to the amount of enhanced damages, the Court finds
Plaintiff's requested $100,000 would overcompensate Plaintiff.
The Court also finds awarding an additional $30,000

three times

the statutory amount awarded — would overcompensate Plaintiff.
The Court notes the statutory amount awarded is $2,000 less than

the cost Defendants would have had to psy for the Program. Taking

that discrepancy into account and recognizing that Defendants meet
most of the willfulness factors examined, the Court awards an
additional $10,000 in enhanced damages.
D. Attorneys' Fees

Plaintiff

also

requests

attorneys'

fees

under

sections 553(c)(2)(C) and 605(e)(B)(iii). According to an invoice

submitted

by

Plaintiff's

counsel,

10

two

attorneys

spent

4.50

combined hours working on this case, totaling $1,200 in fees.
(Mot. for Default J. at 5-6.)

Courts rely on, among other things, the ''going rate" in the

legal community when deciding what constitutes a reasonable amount

of attorney's fees.
(11th Cir. 1990).

Martin v. Univ. of S. Ala., 911 F.2d 604, 609
The "legal community" for purposes of deciding

what fees are reasonable is the district in which the court sits.

Knight v. Alabama, 824 F. Supp. 1022, 1027 n.l (N.D. Ala. 1993).

The Court recently set the going rate in this district at $300 an
hour.

See Plumbers and Steamfitters Local No. 150 v. Rice, CV

115-200, Doc. 37 (S.D. Ga. Mar. 22, 2017). Plaintiff's counsels'
billable rates ranged from $200 an hour to $300 an hour. (Mot. for
Default J. at 5-6.)

Because the attorneys' hourly rates are

reasonable, the Court finds the requested amount of $1,200 is
appropriate.

Ill. Conclusion

The Court GRISTS IN PART and DENIES IN PART Plaintiff s motion

for default judgment.

(Doc. 11.)

The Court GRANTS the motion

with respect to liability, damages, and fees in the amount of
$21,200.3

The Court DENIES the motion for amounts above $21,200.

The Clerk is instructed to ENTER JUDGMENT in favor of Plaintiff

3 $10,000 in statutory damages, $10,000 in enhanced damages, and $1,200 for
Plaintiff's attorneys' fees.
11

and against Defendants, jointly and severally, in the amount of
$21,200 and to CLOSE this case.

ORDER ENTERED at Augusta, Georgia this ^?V^^ay of October,
2018.

J.

C^EF JUDGE

UNITEDySTATES DISTRICT COURT
!rN district of GEORGIA

12