Joe Hand Promotions, Inc v. Parlavecchio et al
Filing
39
OPINION (See Written Opinion):The Court orders Plaintiff to file a brief, with any additional affidavits or supporting evidence attached as exhibits, in which Plaintiff supports its request for damages with an analysis of the relevant factors for a damages calculation under §§ 553 or 605 by September 22, 2011. Entered by Judge Sue E. Myerscough on 9/01/2011. (VM, ilcd)
E-FILED
Thursday, 01 September, 2011 05:01:17 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOE HAND PROMOTIONS, INC.,
)
)
)
)
) No. 10-3294
)
)
)
Plaintiff,
vs.
MARC PARLAVECCHIO, et al.,
Defendants.
)
OPINION
SUE E. MYERSC0UGH, U.S. District Judge:
Plaintiff, Joe Hand Promotions, Inc., brought this action alleging that
Defendants Jim Drewes, Tammy Drewes, and Daniel Osborne d/b/a and DJT
Fieldhouse, Inc. d/b/a Fieldhouse Pizza & Pub, and DJT Fieldhouse, Inc. d/b/a
Fieldhouse Pizza & Pub knowingly and willfully violated 47 U.S.C §§ 553 and 605
by unlawfully intercepting and exhibiting UFC 91 on November 15, 2008.
Defendants Jim Drewes, Tammy Drewes, and Osborne have failed to answer the
Complaint. United States Magistrate Judge Byron Cudmore entered default
against Defendants on July 13, 2011. The matter is now before the Court on
Plaintiff’s Motion for Default Judgment as to Defendants Jim Drewes, Tammy
Drewes, and Daniel Osborne in which Plaintiff seeks an award of damages,
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attorneys fees, and costs. See d/e 33 (the “Motion”).
FACTS
Plaintiff alleges that Defendants violated §§ 553 and 605. Plaintiff cannot
recover under both §§ 553 and 605 because those sections target two different
types of piracy. See United States v. Norris, 88 F.3d 462, 468 (7th Cir. 1996)
(holding § 553 governs the interception of cable television programming traveling
over a cable network, while § 605 governs the interception of programming as it
travels through the air). However, without the benefit of discovery or an admission
from Defendants, Plaintiff cannot determine whether Defendants intercepted the
signal via cable or satellite.
Plaintiff’s Motion states that “statutory liquidated damages” for each
violation of § 553 is $60,000 and for each violation of § 605 is $110,000. The
Motion only requests that this Court award Plaintiff $15,000 as “statutory
liquidated damages,” but does not specify whether Plaintiff is requesting relief
under § 553 or § 605.
ANALYSIS
1. Liability
Due to Defendants’ failure to answer the Complaint, Defendants are deemed
to have unlawfully intercepted the program and shown it to their patrons. Joe
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Hand Promotions, Inc. v. Ewer, 2009 WL 3269658, at *1 (E.D. Wis. 2009).
Defendants are also deemed to have done so willfully and for the purposes of
commercial advantage or private financial gain. Id. Defendants have forfeited
their ability to contest their personal liability for the violation alleged by Plaintiff,
as Defendants are deemed to have had the necessary supervisory control over the
interception of the program and received the financial benefit of the same. Id. at *2
(citing J & J Sports Productions, Inc. v. Ribeiro, 562 F. Supp. 2d 498 (S.D. N.Y.
2008) (individual who was officer, director, shareholder, and/or principal of
corporation that operated bar was liable in her individual capacity for the bar’s
unlawful interception and exhibition of pay-per-view boxing match, where the
individual had supervisory control over interception and received a financial
benefit therefrom).
2. Damages
Under § 553(c)(3)(A), an aggrieved party may recover: (1) their actual
damages and any profits of the violator, or (2) statutory damages in a sum not less
than $250 or more than $10,000. In any case in which the court finds that the
violation was committed willfully and for the purpose of commercial advantage or
private financial gain, the court has the discretion to increase the award of damages
by an amount not more than $50,000. 47 U.S.C. § 553(c)(3)(B).
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Section 605(e)(3)(C)(i) allows the aggrieved party to elect the method by
which to calculate damages. A party may elect to recover: (1) actual damages
suffered by him and any profits of the violator, or (2) statutory damages for each
violation of § 605(a) of not less that $1,000 or more than $10,000. 47 U.S.C. §
605(e)(3)(C)(i). 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 may increase the award of damages by an amount
of not more than $100,000 for each violation of § 605(a). 47 U.S.C. §
605(e)(3)(C)(ii).
By requesting $15,000 in “statutory liquidated damages,” Plaintiff has
elected to receive statutory damages rather than actual damages. Courts generally
use one of two approaches to calculate statutory damages. One approach is to
award statutory damages based on the number of patrons in the establishment at
the time of the unauthorized interception. J & J Sports Productions Inc. v Ithier,
2010 WL 2490674, at *1 (E.D. Wis. 2010) The other approach is to award a flat
sum based on the rate the provider charged to establishments, which varies by the
maximum occupancy ranges. Id.
With regard to enhanced damages, courts consider several factors, including
the following: (1) the number of violations; (2) defendant’s unlawful monetary
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gains; (3) plaintiff’s significant actual damages; (4) whether defendant advertised
for the event; and (5) whether defendant collected a cover charge on the night of
the event. J & J Sports Productions, Inc. v. Tu, 2008 WL 4833116, at *2 (N.D. Ill.
2008).
As stated, Plaintiff is entitled to default judgment due to Defendants’
failure to answer the Complaint. Therefore, the only question is the amount of the
damages award.
As noted above, Plaintiff cannot recover under both §§ 553 and 605. See
Joe Hand Promotions, Inc. v. Kaczmar, 2008 WL 4776365, at *2 (N.D. Ill. 2008)
(stating a plaintiff may not simultaneously pursue relief under both §§ 553 and 605
because they target two distinct types of piracy). In light of Defendant’s default
this Court finds it unnecessary to determine which section was actually violated.
Joe Hand Promotions, Inc. v. Cat’s Bar, Inc., 2009 WL 700125, at * 2 (C.D. Ill.
2009). Because the Complaint alleges violations of both §§ 553 and 605,
Defendants are deemed to have violated one of those two sections of the statute.
See id. (“a defendant in default is deemed to have admitted the factual allegations
in the complaint”).
However, while Plaintiff is entitled to damages, this Court will not award
damages based upon an apparently arbitrary amount requested by Plaintiff. Here,
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Plaintiff asks for $15,000 as “statutory liquidated damages.” How Plaintiff arrived
at this amount is unclear. Fifteen thousand dollars is the same amount of damages
Plaintiff’s counsel has requested in a motion for default judgment on behalf of
another client in a similar case in which DJT Fieldhouse, Inc. and Osborne1 are
named defendants. See G & G Closed Circuit Events, LLC. v. DJT Fieldhouse,
Inc., No. 11-3016, at d/e 18.
The arbitrariness of Plaintiff’s request for $15,000 in damages is
demonstrated by comparing the facts of this case to counsel’s other case G & G
Closed Circuit Events, LLC. v. DJT Fieldhouse, Inc., No. 11-3016. The
investigator in the present case estimated that over 200 people were in the
establishment during the event on the night in question. The investigator in G & G
Closed Circuit Events, LLC. v. DJT Fieldhouse, Inc. conducted three counts of the
number of patrons inside the establishment during the event on the night in
question and observed 46, 38, and 42 people during those counts. G & G Closed
Circuit Events, LLC. v. DJT Fieldhouse, Inc., No. 11-3016, at d/e 18. Statutory
damages awarded in this case and G & G Closed Circuit Events, LLC. v. DJT
Fieldhouse, Inc., No. 11-3016, should be greatly different if the Court were to
follow other courts that have awarded statutory damages based upon the number of
1
In the other case, Daniel Osborne is referred to as Daniel Orsborn.
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patrons in the establishment at the time of the unauthorized broadcasts.2 Yet,
counsel has asked for the same amount of damages in each case.
Moreover, Plaintiff has offered no analysis of the factors relevant in
considering how much in enhanced damages to award because of the willful nature
of Defendant’s actions. While it may be that an analysis of these factors will result
in a total award of $15,000 in damages, the Court will not rubber stamp such a
request without proper support for that request by Plaintiff.
CONCLUSION
THEREFORE, the Court orders Plaintiff to file a brief, with any additional
affidavits or supporting evidence attached as exhibits, in which Plaintiff supports
its request for damages with an analysis of the relevant factors for a damages
calculation under §§ 553 or 605 by September 22, 2011.
ENTERED: September 1, 2011.
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
2
The Court acknowledges the investigator’s affidavit contains sufficient information to
calculate statutory damages if the Court were to base an award on a baseline of $55 per patron
and multiply that by the number of patrons as in Kaczmar, 2008 WL 4776365, at *2, and other
cases.
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