Joe Hand Promotions, Inc. v. McGill et al

Filing 1

COMPLAINT filed by Joe Hand Promotions, Inc.; Filing fee $ 350, receipt number 0752-6138733.(Van Dyke, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
MICHAEL P. MCGILL, KATHY S. MCGILL,
Individually, and as officers, directors,
shareholders, and/or principals of THE PLATE
SPORTS BAR & GRILL, LLC d/b/a PLATE
SPORTS BAR & GRILL, and THE PLATE
SPORTS BAR & GRILL, LLC d/b/a PLATE
SPORTS BAR & GRILL,

No. 1:11-cv-04385

Defendants.
COMPLAINT AT LAW
Plaintiff, Joe Hand Promotions, Inc., by and through its attorney, David C. Van Dyke, as
and for its Complaint against the Defendants, Michael P. McGill, Kathy S. McGill, and The Plate
Sports Bar & Grill, LLC d/b/a Plate Sports Bar & Grill, allege as follows:
JURISDICTION AND VENUE
1.

This Court has subject matter jurisdiction under 28 U.S.C. §1331 (federal

questions), as this civil action is brought pursuant to 47 U.S.C. §553 and 605.
2.

This court has personal jurisdiction over the parties to this action as a result of

Defendants’ wrongful acts, complained of herein, which violated Plaintiff’s rights as the
exclusive domestic commercial distributor of the transmission signal of the fight program as
hereinafter set forth in length.

Defendants’ wrongful acts consisted of the interception,

reception, publication, divulgence, display, exhibition and tortuous conversion of Plaintiff’s
property, while said property was in the Plaintiff’s control in the State of Illinois.

3.

Upon information and belief, venue is proper in the Northern District of Illinois,

pursuant to 28 U.S.C. §1391(b) because, inter alia, all Defendants reside within the State of
Illinois and/or a substantial part of the events or omissions giving rise to the claim occurred in
this District.
THE PARTIES
4.

The Plaintiff, Joe Hand Promotions, Inc., is a Pennsylvania corporation with its

principal place of business located at 407 East Pennsylvania Avenue, Feasterville, Pennsylvania
19053.
5.

Upon information and belief, Defendant, MICHAEL P. MCGILL, resides in the

State of Illinois.
6.

Upon information and belief, Defendant, KATHY S. MCGILL, resides in the

State of Illinois.
7.

Upon information and belief, Defendants, MICHAEL P. MCGILL and KATHY

S. MCGILL, are officers, directors, shareholders and/or principals of THE PLATE SPORTS
BAR & GRILL, LLC d/b/a PLATE SPORTS BAR & GRILL.
8.

Upon information and belief, Defendants, MICHAEL P. MCGILL and KATHY

S. MCGILL, were the individuals with supervisory capacity and control over the activities
occurring within the establishment on February 6, 2010.
9.

Upon information and belief, Defendants, MICHAEL P. MCGILL and KATHY

S. MCGILL, received a financial benefit from the operations of THE PLATE SPORTS BAR &
GRILL, LLC d/b/a PLATE SPORTS BAR & GRILL, on February 6, 2010.

2

10.

Upon information and belief, Defendant, THE PLATE SPORTS BAR & GRILL,

LLC d/b/a PLATE SPORTS BAR & GRILL, is a business entity, the exact nature of which is
unknown, having its principal place of business at 209 20th Avenue, Naplate, IL 61350.
11.

Upon information and belief, Defendant, THE PLATE SPORTS BAR & GRILL,

LLC d/b/a PLATE SPORTS BAR & GRILL, is a Domestic Corporation, incorporated and
licensed to do business in the State of Illinois.
12.

Upon information and belief, Defendant, THE PLATE SPORTS BAR & GRILL,

LLC d/b/a PLATE SPORTS BAR & GRILL, is a partnership licensed to do business in the State
of Illinois.
13.

Upon information and belief, Defendant, THE PLATE SPORTS BAR & GRILL,

LLC d/b/a PLATE SPORTS BAR & GRILL, is a sole proprietorship licensed to do business in
the State of Illinois.
COUNT I
VIOLATION OF TITLE 47 U.S.C. §605
14.

Plaintiff hereby incorporates by reference all of the allegations contained in

paragraphs “1” through “13”, inclusive, as though set forth herein at length.
15.

By contract, Plaintiff was granted the right to distribute the UFC 109: Relentless

Broadcast, including all undercard bouts and the entire television broadcast, scheduled for
February 6, 2010, (hereinafter referred to as the “Broadcast”), via closed circuit television and
via encrypted satellite signal. The Broadcast originated via satellite uplink, and was subsequently
re-transmitted to cable systems and satellite companies via satellite signal.
16.

Pursuant to the contract, Plaintiff entered into subsequent agreements with various

entities of the State of Illinois, allowing them to publicly exhibit the Broadcast to their patrons.

3

17.

In consideration of the aforementioned agreements, Plaintiff expended substantial

monies to transmit the Broadcast to those entities in the State of Illinois.
18.

Upon information and belief, with full knowledge that the Broadcast was not to be

received and exhibited by entities unauthorized to do so, Defendants and/or their agents,
servants, workmen and/or employees unlawfully intercepted, received and/or de-scrambled said
satellite signal, and did exhibit the Broadcast at the above-captioned address and/or addresses at
the time of its transmission willfully and for purposes of direct or indirect commercial advantage
or private financial gain.
19.

Upon information and belief Defendants and/or their agents, servants, workmen

and/or employees used an illegal satellite receiver, intercepted Plaintiff’s signal and/or used a
device to intercept Plaintiff’s Broadcast, which originated via satellite uplink and then retransmitted via satellite or microwave signal to various cable and satellite systems. There are
multiple illegal methods of accessing the Broadcast, including, (1) splicing an additional coaxial
cable line or redirecting a wireless signal from an adjacent residence into a business
establishment; (2) commercial establishments misusing cable or satellite by registering same as a
resident when it is, in fact, a business; or (3) taking a lawfully obtained box or satellite receiver
from a private residence into a business. In addition, emerging technologies, such as broadband
or internet broadcast, as well as “slingbox” technology (which allows a consumer to literally
sling the Broadcast from his personal home cable or satellite systems into his computer), can
allow commercial misuse of residential broadcasting feeds through the internet from anywhere in
the world. Each of these methods would allow Defendants to access the Broadcast unlawfully.
Prior to Discovery, Plaintiff is unable to determine the manner in which Defendants obtained the
Broadcast. However, it is logical to conclude that Defendants, either used an illegal satellite

4

receiver, misrepresented its business establishment as a residence, or removed an authorized
residential receiver from one location to a different commercial location to intercept Plaintiff’s
Broadcast.
20.

47 U.S.C. §605 (a) prohibits the unauthorized reception and publication or use of

communications such as the transmission herein, to which Plaintiff held the distribution rights.
21.

By reason of the aforementioned conduct, Defendants herein willfully violated 47

U.S.C. §605 (a).
22.

By reason of Defendants’ violation of 47 U.S.C. §605 (a), Plaintiff has a private

right of action pursuant to 47 U.S.C. §605.
23.

As a result of Defendants’ willful violation of 47 U.S.C. §605 (a), Plaintiff is

entitled to damages, in the discretion of this Court, under 47 U.S.C. §605 (e) (3) (C) (i) (II) and
(ii), of up to the maximum amount of $110,000.00 as to each Defendant herein.
24.

Pursuant to 47 U.S.C. §605, Plaintiff is also entitled to an award of full costs,

interest and reasonable attorney’s fees.
COUNT II
VIOLATION OF TITLE 47 U.S.C. §553
25.

Plaintiff hereby incorporates paragraphs “1” through “24”, inclusive, as though

fully set forth herein at length.
26.

Upon information and belief, with full knowledge that the Broadcast was not to be

received and exhibited by entities unauthorized to do so, Defendants and/or its agents, servants,
workmen and or employees did exhibit the Broadcast at the above-captioned address or
addresses at the time of its transmission willfully and for purposes of direct or indirect
commercial advantage or private financial gain.

5

27.

47 U.S.C. §553 prohibits the unauthorized reception, interception and exhibition

of any communications service offered over a cable system, such as the transmission herein, to
which Plaintiff had the distribution rights.
28.

Upon information and belief, Defendants individually, willfully and illegally

intercepted said Broadcast when it was distributed and shown by cable television systems.
29.

By reason of the aforementioned conduct, Defendants herein willfully violated 47

U.S.C. §553, thereby giving rise to a private right of action.
30.

As a result of Defendants’ violation of 47 U.S.C. §553, Plaintiff is entitled to

damages in an amount, in the discretion of this Court, of up to the maximum amount of
$60,000.00, plus the recovery of full costs, interest and reasonable attorney’s fees.
31.

Without further Discovery from and/or admission by Defendants, Plaintiff cannot

determine if Defendants intercepted Plaintiff’s signal via a cable system, in violation of 47
U.S.C. §553, or via a satellite transmission, in violation of 47 U.S.C. §605. As such, Plaintiff is
alleging two (2) counts in its Complaint. Plaintiff recognizes that Defendants can be liable for
only (1) of these statutes.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against each
Defendant herein, granting to Plaintiff the following:
(a)

A finding that each Defendant’s unauthorized exhibition of the February 6, 2010

UFC 109: Relentless Broadcast violated the Federal Communications Act and that such
violations were committed willfully and for purposes of each Defendant’s direct or indirect
commercial advantage or for private financial gain; and

6

(b)

On the first cause of action, statutory penalties in an amount, in the

discretion of this Court, of up to the maximum amount of $110,000.00 as to each Defendant for
its willful violation of 47 U.S.C. §605 (a).
(c)

On the second cause of action, statutory penalties in an amount, in the

discretion of this Court, of up to the maximum amount of $60,000.00 as to each Defendant for its
violation of 47 U.S.C. §553; and
(d)

Attorney’s fees, interest, and costs of suit as to each Defendant pursuant to

47 U.S.C. §605 (e) (3) (B) (iii) or §553 (c) (2) (C), together with such other and further relief as
this Court may deem just and proper.
COUNT III
CONVERSION
32.

Plaintiff hereby incorporates by reference all of the allegations contained in

paragraphs 1-31, inclusive, as though set forth herein at length.
33.

By its acts as aforesaid in intercepting, exhibiting, publishing, and divulging the

Broadcast at the above-captioned address, the aforementioned Defendants, tortuously obtained
possession of the Program and wrongfully converted it to its own use and benefit.
34.

The aforesaid acts of the Defendants were willful, malicious, and intentionally

designed to harm Plaintiff Joe Hand Promotions, Inc., and to subject said Plaintiff to economic
distress.
35.

Accordingly, Plaintiff Joe Hand Promotions, Inc. is entitled to both compensatory,

as well as punitive damages, from the aforementioned Defendants as the result of the
Defendants’ egregious conduct and conversion.

7

WHEREFORE, Plaintiff requests that judgment be entered in its favor and against each
Defendant herein, granting to Plaintiff the following:
(a)

A finding that each Defendant’s unauthorized exhibition of the February

6, 2010 UFC 109: Relentless Broadcast violated the Federal Communications Act and that such
violations were committed willfully and for purposes of each Defendant’s direct or indirect
commercial advantage or for private financial gain; and
(b)

On the first cause of action, statutory penalties in an amount, in the

discretion of this Court, of up to the maximum amount of $110,000.00 as to each Defendant for
its willful violation of 47 U.S.C. §605 (a); and
(c)

On the second cause of action, statutory penalties in an amount, in the

discretion of this Court, of up to the maximum amount of $60,000.00 as to each Defendant for its
violation of 47 U.S.C. §553; and
(d)

On the third cause of action, compensatory damages in an amount

according to proof against Defendants; and

8

(e)

Attorney’s fees, interest, and costs of suit as to each Defendant pursuant to

statute(s) including 47 U.S.C. §605 (e) (3) (B) (iii) or §553 (c) (2) (C), together with such other
and further relief as this Court may deem just and proper.
Dated: June 28, 2011

Respectfully submitted,
s/ David C. Van Dyke
David C. Van Dyke (#6204705)
Lea Ann Chambers Fracasso (#6303326)
CASSIDAY SCHADE LLP
20 N. Wacker Drive, Suite 1000
Chicago, IL 60606
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
E-Mail: [e-mail]
ATTORNEYS FOR PLAINTIFF,
JOE HAND PROMOTIONS, INC.

7510176

9