Joe Hand Promotions, Inc. v. Hibbard

Filing 19

OPINION entered by Judge Sue E. Myerscough on 09/08/2015. SEE WRITTEN OPINION. Plaintiff's Motion (d/e 18 ) is GRANTED. It is ordered that judgment be entered in favor of Plaintiff and against Defendant Jettery Hibbard, individually and d/b/a Cedar Club, in the total amount of $3,278.50. THIS CASE IS CLOSED.(DM, ilcd)

E-FILED

Wednesday, 09 September, 2015 08:56:01 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
vs.
JETTERY HIBBARD, indv. and
d/b/a CEDAR CLUB,
Defendant.

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OPINION
SUE E. MYERSC0UGH, U.S. District Judge:
This matter is before the Court on Plaintiff Joe Hand
Promotions, Inc.’s Motion for Default Judgment (d/e 18). For the
reasons explained below, the Court awards the sum of $1,000 in
statutory damages, no enhanced damages, and $2,278.50 in
attorney’s fees and costs. The Court therefore enters final judgment
against Defendant Jettery Hibbard, individually and d/b/a Cedar
Club, and in favor of Plaintiff in the total amount of $3,278.50.

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I. BACKGROUND
In September 2014, Plaintiff filed a Complaint in the Northern
District of Illinois, Eastern Division, alleging that Defendant
knowingly and willfully violated certain provisions of the
Communications Act of 1934, as amended (47 U.S.C. § 605 et seq.)
and the Cable and Television Consumer Protection and Competition
Act of 1992, as amended (47 U.S. § 553 et seq. ). Specifically,
Plaintiff alleged that Defendant unlawfully intercepted and exhibited
“Ultimate Fighting Championship 167: Georges St-Pierre v. Johny
Hendricks” (the Program) on November 16, 2013.
Defendant was served on October 1, 2014. See Return of
Service (d/e 5). On January 14, 2015, the Honorable Robert W.
Gettleman of the United States District Court for the Northern
District of Illinois entered an order of default against Defendant.
Minute Entry (d/e 7). On March 16, 2015, the court found that
venue was improper in the Northern District of Illinois and
transferred the case to the Central District of Illinois, where all the
events giving rise to the claim occurred. See Order (d/e 15).
Because Defendant failed to appear, the allegations of
Plaintiff’s complaint are deemed admitted. See O’Rourke v.
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Palisades Acquisition XVI, LLC, 635 F.3d 938, 940 (7th Cir. 2011).
According to the allegations in the Complaint, Plaintiff is a
commercial distributor of sporting events. Compl. ¶ 16. By
contract, Plaintiff paid for and was granted the exclusive nationwide
television distributions rights of the Program. Compl. ¶ 14.
Plaintiff entered into subsequent sublicensing agreements with
various commercial entities throughout North America, including
within the State of Illinois. Plaintiff granted those entities limited
sublicensing rights, specifically the rights to publicly exhibit the
Program to patrons within their respective establishments. Id. ¶
15.
Defendant is the owner, officer, director, shareholder, and/or
principal of the Cedar Club in Quincy, Illinois. Compl. ¶ 8.
Defendant was an individual with supervisory capacity and control
over the activities occurring within the Cedar Club on November 16,
2013, and he received a financial benefit from the operation of the
Cedar Club on November 16, 2013. Compl. ¶¶ 9, 10.
Defendant, with full knowledge that the Program was not to be
intercepted and exhibited by entities unauthorized to do so, did
unlawfully publish, divulge, and exhibit the Program at the Cedar
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Club. Compl. ¶ 17. Said unauthorized interception and exhibition
was done willfully and for the purposes of direct or indirect
commercial advantage or private financial gain. Id.
On August 13, 2015, Plaintiff filed a Motion for Default
Judgment, which included a brief statement of the relevant law and
supporting authorities upon which Plaintiff relies.1 Plaintiff
supported the Motion with Affidavits and the Rate Card showing
what Defendant would have had to pay had Defendant ordered the
Program from Plaintiff. See Ex. B, C, D (d/e 18-2, 18-3, 18-4).
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, 469 (7th Cir. 1996) (finding
“Congress intended for § 605 to apply to the unlawful interception
of cable programming transmitted through the air, while it intended
for § 553 to apply to the unlawful interception of cable
programming while it is actually being transmitted over a cable

Local Rule 7.1(B)(1) requires that “[e]very motion raising a question of law . . .
must include a memorandum of law including a brief statement of the points or
propositions of law and supporting authorities upon which the moving party
relies, and identifying the Rule under which the motion is filed.” Plaintiff failed
to file a separate memorandum of law. However, because Plaintiff included the
relevant information in the Motion, the Court will excuse Plaintiff’s failure to
strictly comply with the Rule.
1

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system”); Joe Hand Promotions, Inc. v. Kaczmar, No. 08 C 2910,
2008 WL 4776365, at *2 (N.D. Ill. Oct. 29, 2008). Consequently,
Plaintiff seeks judgment and statutory damages only under § 605.
See J & J Sports Productions, Inc. v. Smith, No. 14 C 2955, 2014
WL 3811090, at *2 (N.D. Ill. July 31, 2014) (noting that while it was
unclear at what point the alleged interception occurred—over a
cable system or satellite broadcast—the plaintiff was deprived of the
opportunity to conduct discovery because the defendant did not
appear and, in any event, “the practical impact of which statute
applies is nil”). Plaintiff seeks statutory damages of $3,400,
enhanced damages of $5,000, and attorney’s fees and costs of
$2,878.50, for a total judgment of $11,278.50.
II. ANALYSIS
Because Defendant failed to answer the Complaint, Defendant
is deemed to have unlawfully intercepted the Program and shown
the Program to the patrons of the Cedar Club. Joe Hand
Promotions, Inc. v. Ewer, No. 09-C-612, 2009 WL 3269658, at *1
(E.D. Wis. Oct. 8, 2009). Defendant is also deemed to have done so
willfully and for the purposes of commercial advantage or private
financial gain. Id. Further, Defendant has forfeited his ability to
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contest his personal liability for the violation alleged by Plaintiff
because Defendant is 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, 501 (S.D.
N.Y. 2008) (individual who was officer, director, shareholder, and/or
principal of the corporation that operated the 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)).
Under § 605, 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 not less than $1,000 or more than
$10,000. 47 U.S.C. § 605(e)(3)(C)(i). Plaintiff seeks statutory
damages.
In addition, 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
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$100,000 for each violation of § 605(a). 47 U.S.C. § 605(e)(3)(C)(ii).
Plaintiff is also entitled to attorney’s fees. 47 U.S.C.
§ 605(e)(3)(B)(iii). The calculation of statutory and enhanced
damages is within the Court’s discretion. See Smith, 2014 WL
3811090, at *2; 47 U.S.C. § 605(e)(3)(C)(i)(II) (providing for statutory
damages “as the court considers just”); 47 U.S.C. § 605(e)3)(C)(ii)
(providing that for any violation committed willfully and for
purposes of commercial advantage or private financial gain, the
court may, in its discretion, increase the award of damages).
A.

The Court Awards Plaintiff Statutory Damages in the
amount of $1,000.
Courts generally use one of two approaches to calculate

statutory damages.2 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, No. 09-C-1126, 2010 WL 2490674, at *1 (E.D. Wis. June 17,
2010). Many courts use a base figure of $55, while other courts use
2

In one case, the United States District Court for the Southern District of
Indiana did not apply either approach. J & J Sports Productions, Inc. v.
Turrubiartes, No. 1:11-cv-1496, 2013 WL 3878740, at *2 (S.D.Ind. 2013)
(awarded $5,000 statutory award based on the small size of the crowd, the
absence of a cover charge, and the single television exhibiting the fight; the
court did not award enhanced damages).

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the rate the plaintiff charged residential customers to view the
match, and multiply that figure by the number of patrons who
watched the event in the establishment. Compare J & J Sports
Production v. Calderon, No. 09 C 7039, 2010 WL 3420153, at *3
(N.D. Ill. 2010) (calculating statutory damages by using the base
figure of $55 multiplied by the number of patrons) with Time
Warner Cable of N.Y.C. v. Googies Luncheonette, Inc., 77 F. Supp.
2d 485, 490 (S.D. N.Y. 1999) (using the approximate rate the
plaintiff charged residential customers to view the match multiplied
by each patron viewing the match at the defendant’s
establishment).
The second approach is to award a flat sum based on the rate
the provider charged establishments, which varies by the maximum
occupancy ranges of the establishments. Ithier, 2010 WL 2490674,
at *1; see also J & J Sports Productions, Inc. v. Estrada, No. 14 C
2518, 2014 WL 2609751, at *3 (N.D. Ill. 2014) (statutory damages
based on the amount the defendant would have paid to order the
program). Some courts apply a multiplier to that calculation. See
J & J Sports Productions, Inc. v. Carranza, No. 1:13-cv-01467,
2015 WL 1417894, at *5 (S.D. Ind. March 27, 2015) (statutory
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damages of twice the amount defendant would have paid to obtain
the program legally). It has been noted that “[w]hen the number of
patrons at a defendant’s establishment is known, most courts
award damages under [Section] 605 based on the number of
patrons.” J & J Sports Productions, Inc. v. Aguilera, No. 09-CV4719, 2010 WL 2362189, at *2 (N.D. Ill. June 11, 2010) (quoting J
& J Sports Production, Inc. v Ramirez, No. 08 C 3354, Minute Entry
Order at 1-2 (N.D. Ill. Sept. 18, 2008) (citing cases and basing
award on baseline of $55 per patron).
In this case, Plaintiff submitted the Affidavit of its Investigator,
who reported that she counted the number of patrons three
separate times on the night the Program was broadcast. Aff. of
Alexandria Gunn, Ex. B (d/e 18-2). The head counts were 20, 28,
and 37. Id. Based on the capacity of the establishment, which was
70 people, Defendant would have paid $850 had he ordered the
Program. See Id.; Rate Card, Ex. C (d/e 18-3).
Plaintiff asks the Court to award statutory damages not based
on the number of patrons but on the amount Defendant would have
paid if he had ordered the Program ($850) multiplied by four, for

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total statutory damages of $3,400. Mot. at ¶ 26; see also Rate
Card, Ex. C (d/e 18-3).
After reviewing the affidavit and exhibits in this case, this
Court concludes that an award based upon the amount Plaintiff
would have charged Defendant for the Program ($850) is the
sensible approach. Because the minimum amount of statutory
damages the Court can award is $1,000, the Court awards $1,000
in statutory damages.
B.

The Court Awards Plaintiff No Enhanced Damages
Plaintiff asks for enhanced damages of $5,000 as a deterrence

factor.
The Court may, in its discretion, award enhanced damages if
the Court finds “that 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). When considering
enhanced damages, courts consider several factors, including the
following: (1) the number of violations; (2) the defendant’s unlawful
monetary gains; (3) the plaintiff’s significant actual damages; (4)
whether the defendant advertised for the event; and (5) whether
defendant collected a cover charge on the night of the event. J & J
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Sports Productions, Inc. v. Tu, No. 08 C 4119, 2008 WL 4833116,
at *2 (N.D. Ill. Oct. 29, 2008). “Courts also 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 impairs the viability of the defendant’s
business (at least for a first offense).” Aguilera, 2010 WL 2362189,
at *3.
The Court, in its discretion, finds that enhanced damages are
not warranted. Certainly, by failing to appear and file an answer,
Defendant has admitted the allegations of the Complaint, which
include the allegation that Defendant’s conduct was willful and for
the purposes of direct or indirect commercial advantage or private
financial gain. Compl. ¶¶ 17. However, the record before the
Court does not establish that Defendant is a repeat offender, that
Defendant charged a cover fee, or that Defendant advertised the
event. Moreover, the size of the crowd was not large, and Defendant
likely made little profit. Finally, the Court believes the statutory
damages will be a sufficient deterrent. See J & J Sports
Productions, Inc. v. The Old School Way, LLC, No. 15-C-449, 2015
WL 4623598, at *2 (E.D. Wis. July 30, 2015 (finding that, even if
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the court inferred that the defendant’s actions were for purposes of
commercial advantage of private financial gain, the award of
statutory damages and costs was a sufficient deterrent); J & J
Sports Productions, Inc. v. Turrubiartes, No. 1:11-cv-1496, 2013
WL 3878740, at *2 (S.D. Ind. July 26, 2013) (finding that enhanced
statutory damages were inappropriate because, even if the conduct
was willful, there was no evidence the fight was publicized to attract
patrons or that the establishment was a repeat offender).
Therefore, the Court will not award enhanced damages.
C.

The Court Awards Attorney’s Fees in the Amount of
$2,278.50.
Plaintiff also requests attorney’s fees and costs in the amount

of $2,878.50. Attorney Andre Ordeanu of the law firm of Zane D.
Smith & Associates, Ltd. filed an Affidavit in support of fees. See
Exhibit D (d/e 18-4). The Affidavit indicates that Attorney Ordeanu
spent 6 hours of time at a rate of $400 per hour. A paralegal spent
.5 hours at $75 per hour. Expenses included the filing fee of $400
and service of summons expense of $41.
An award of reasonable attorney’s fees is mandatory if the
plaintiff prevails on its claim under 47 U.S.C. § 605(a). Joe Hand
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Promotions, Inc. v. That Place, LLC, 11-CV-931, 2012 WL 2525653,
at *5 (E.D. Wis. June 29, 2012). Reasonable fees are generally
calculated by multiplying the number of hours reasonably expended
by a reasonably hourly rate. Id. A reasonable hourly rate is one
that is “‘derived from the market rate for the services rendered.’”
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (quoting
Denius v. Dunlap, 330 F. 3d 919, 930 (7th Cir. 2003)). The
applicant seeking fees bears the burden of showing that the rates
are in line with the rates in the community. Pickett, 664 F.3d at
640. If the fee applicant does not satisfy his burden, this Court
may make its own determination of a reasonable rate. Id.
In this case, Attorney Ordeanu has not met his burden of
showing that his rates are in line with the rates in the community.
Therefore, this Court makes its own determination of a reasonable
rate. Based on this Court’s experience and knowledge of local
billing practices, the Court sets the rate at $300 per hour. The
paralegal charge and court costs are both reasonable. Therefore,
the Court awards fees in the amount of $1,837.50 and costs in the
amount of $441.

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III. CONCLUSION
THEREFORE, Plaintiff’s Motion (d/e 18) is GRANTED. It is
ordered that judgment be entered in favor of Plaintiff and against
Defendant Jettery Hibbard, individually and d/b/a Cedar Club, in
the total amount of $3,278.50. THIS CASE IS CLOSED.
ENTERED: September 8, 2015
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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