J&J Sports Productions Inc v. Kotsopoulos et al

Filing 39

OPINION AND ORDER: GRANTING 35 MOTION To Establish and in Support of Damages by Plaintiff J&J Sports Productions Inc. The Clerk is DIRECTED to enter a judgment in favor of J&J and against Defendants, jointly and severally, in the sum of $14,400.00, plus attorneys' fees and costs of $3,609.25. Signed by Magistrate Judge Susan L Collins on 4/8/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
CHRISTINE KOTSOPOULOS, Individually,
d/b/a Cancun Mexican Grill, and
GEO-JOE LLP, An Unknown Business Entity
d/b/a Cancun Mexican Grill,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

No. 1:13-cv-00346-SLC

OPINION AND ORDER
Before the Court is a motion to establish damages for default judgment filed by Plaintiff
J&J Sports Productions, Inc. (“J&J”). (DE 35). Defendants Christine Kotsopoulos and GEOJOE LLP (together, “Defendants”), have filed a response. (DE 38). The time for J&J to file a
reply has now passed, and this motion is ripe for adjudication. J&J’s motion will be GRANTED
for the reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
J&J had the exclusive nationwide commercial distribution rights to the Cotto/Margaritio
boxing program (“the program”) at the time of its broadcast on December 3, 2011. (DE 26 at 5 ¶
9; DE 30 at 2). J&J brought this suit against Defendants, alleging the unauthorized interception
or receipt of its transmission of the program at Cancun Mexican Grill, a commercial
establishment in Fort Wayne, Indiana, on December 3, 2011. (DE 1).
J&J bases its allegations on the affidavit of a hired investigator, Ernesto A. Tatad, who
went to Cancun Mexican Grill on Saturday, December 3, 2011, and saw that the establishment

was broadcasting the program. (DE 35-3). Tatad entered Cancun Mexican Grill at 11:58 p.m. on
Saturday, December 3, 2011. (DE 35-3 at 1). He was not charged cover. (DE 35-3 at 1). Inside
Cancun Mexican Grill, Tatad observed that there were three televisions, which were all
broadcasting the program. (DE 35-3 at 1). Tatad counted the number of patrons in the
establishment three separate times, and his headcounts were 85, 87, and 90. (DE 35-3 at 1).
Based on a count of the booths, tables, and chairs, Tatad estimated the capacity of the bar to be
95 people. (DE 35-3 at 1).
J&J filed a motion seeking entry of default judgment and/or summary judgment (DE 25),
which the Court granted in part as to liability for default judgment (DE 33). In its previous order,
the Court permitted J&J to submit a motion to establish damages for default judgment, which
J&J has now filed, and which is the subject of this Opinion and Order. (DE 35). J&J seeks
statutory damages in the amount of $7,200 and enhanced statutory damages in the amount of
$7,200, for a total award of $14,400. (DE 35-1 at 2). J&J also seeks to recover $3,609.25 in
costs and attorneys’ fees. (DE 35-4; DE 35-5).
II. LAW & ANALYSIS
After the entry of default, “the well-pled allegations of the complaint relating to liability
are taken as true, but those relating to the amount of damages suffered ordinarily are not.” Wehrs
v. Wells, 688 F.3d 886, 892 (7th Cir. 2012) (citing United States v. Di Mucci, 872 F.2d 1488,
1497 (7th Cir. 1989); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2688, at
58-59 (3d ed. 1998 & Supp. 2012)). “Thus, ‘damages must be proved unless they are liquidated
or capable of calculation.’” Id. (quoting Merrill Lynch Mortg. Corp. v. Narayan, 908 F.2d 246,
253 (7th Cir. 1990)). “Once the default is established, and thus liability, the plaintiff still must
2

establish his entitlement to the relief he seeks.” In re Catt, 368 F.3d 789, 793 (7th Cir. 2004).
The court must “conduct an inquiry in order to ascertain the amount of damages with reasonable
certainty.” Id. (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d
Cir. 1999)). The Seventh Circuit has made clear that “judgment by default may not be entered
without a hearing on damages unless ‘the amount claimed is liquidated or capable of
ascertainment from definitive figures contained in the documentary evidence or in detailed
affidavits.’” e360 Insight v. Spamhaus Project, 500 F.3d 594, 602 (7th Cir. 2007) (quoting
Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.
1983)).
Defendants have stated that no hearing is necessary if the damages are capped at the
amounts requested by J&J in its motion and memorandum. (DE 38 ¶ 6). The Court need not
conduct a hearing on damages because J&J has submitted adequate information in its supporting
memorandum, exhibits, and affidavits to allow the Court to conduct the necessary inquiry and
ascertain the amount of damages with the required reasonable certainty. (DE 35-1 through DE
35-6).
J&J brought this action pursuant to 47 U.S.C. §§ 605 and 553, along with a claim for
conversion under the common law. (DE 1 ¶¶ 15-33). “[T]he interception of cable television
programming as it travels through the air is to be governed by § 605, while the interception of
cable television programming traveling over a cable network (and specifically, the manufacture
and distribution of decoder boxes) is to be governed by § 553(a).” United States v. Norris, 88
F.3d 462, 468 (7th Cir. 1996). Under § 605, a plaintiff may elect to recover actual or statutory
damages, with the statutory damages for each violation ranging from $1,000 to $10,000 as the
3

court considers just. 47 U.S.C. § 605(e)(3)(C)(i). Additionally, the court may award enhanced
statutory damages of up to $100,000 where the court finds a violation was willful and for
purposes of commercial advantage or private financial gain. 47 U.S.C. § 605(e)(3)(C)(ii). Under
§ 553, a plaintiff may also elect to recover actual or statutory damages, with the statutory
damages for each violation ranging from $250 to $10,000. 47 U.S.C. § 553(c)(3)(A). The court
may also award enhanced statutory damages of up to $50,000 where the violation was willful and
for purposes of commercial advantage or private financial gain. 47 U.S.C. § 553(c)(3)(B).
J&J has elected to recover statutory damages under § 605 rather than actual damages.
(DE 35-1 at 1). J&J also seeks to recover enhanced statutory damages under that section as well.
(DE 35-1 at 1-2). J&J does not request the maximum amount permitted by the statute for either
statutory damages or enhanced statutory damages; instead, J&J requests $7,200 in statutory
damages and $7,200 in enhanced statutory damages under the “per patron rate.” (DE 35-1 at 2).
J&J specifically requests that the Court use an $80 per patron rate to calculate its statutory
damages. (DE 35-1 at 2).
Courts within the Seventh Circuit Court of Appeals have often applied a “per patron rate”
for calculating statutory damages. See J & J Sports Prods., Inc. v. Homestyle Rest. Grp., LLC,
No. 13-CV-506, 2014 WL 4072132, at *3-4 (E.D. Wis. Aug. 15, 2014) (discussing the history of
the “per patron rate”); see also J & J Sports Prods. v. Estrada, No. 14 C 2518, 2014 WL
2609751, at *3 (N.D. Ill. June 11, 2014). In 1996, courts increased the per patron rate to $55,
and in 2014, the court in Homestyle Restaurant Group suggested that the rate should be increased
to $80 to allow for inflation. 2014 WL 4072132, at *3-4. With J&J’s investigator having
counted a maximum of 90 patrons in Cancun Mexican Grill during the broadcast of the program,
4

an award under the per patron rate method would be $7,200, which is the amount requested by
J&J. Defendants do not object to this amount; instead they state that no factual hearing is
necessary if the amount of statutory damages are capped at the $7,200 amount requested by J&J.
(DE 38 ¶ 6). Because the $7,200 award under the per patron rate method exceeds the $1,200 rate
applicable from the rate card (DE 35-2 at 10), the Court will award the higher $7,200 amount in
statutory damages. See Joe Hand Promotions, Inc. v. Serrato, No. 2:13-CV-409-JTM-PRC,
2014 WL 5314573, at *4 (N.D. Ind. Oct. 16, 2014) (citing Homestyle Rest. Grp., LLC, 2014 WL
4072132, at *4).
The Court must also determine whether to award enhanced statutory damages if
Defendants’ violation was committed willfully and for purposes of commercial advantage or
private financial gain. Courts consider a number of factors when determining the amount of
enhanced statutory damages, including: “(1) the number of violations; (2) defendants’ unlawful
monetary gains; (3) plaintiff’s significant actual damages; (4) whether defendants advertised for
the event; and (5) whether the defendants collected a cover charge on the night of the event.” Id.
(quoting Estrada, 2014 WL 2609751, at *3). “Courts also consider the deterrent effect of the
award.” Id.
Here, Defendants’ statutory violation was committed willfully and for purposes of
commercial advantage or private financial gain. The appropriation of the signal for the program
without a license could not have occurred without some willful and intentional action by
Defendants, whether it be modification of electrical equipment, misrepresentation of the
restaurant as a residential location, the removal of detection devices, or some other intentional
act. Although there was no cover charge or known advertising of the event, these are not
5

necessarily indicia of Defendants’ willfulness, given that both advertising and a cover charge
would tend to attract unwanted attention to the illicit activity. See id., at *5. There were three
televisions in the establishment, which were all broadcasting the program, and this shows that the
program was the main entertainment of the evening. Although there is no evidence of past
violations, the evidence shows that Cancun Mexican Grill’s occupancy at 90 patrons during the
program broadcast was close to its estimated capacity of 95 people, and thus the event likely
imparted commercial advantage or financial gain. Additionally, enhanced damages are
warranted to deter future conduct. J&J has requested enhanced statutory damages of $7,200, and
Defendants have not opposed this amount; instead Defendants state that no hearing is necessary
if the enhanced statutory damages are capped at the amount requested by J&J. (DE 38 ¶ 6). The
Court finds that $7,200 in enhanced statutory damages is appropriate in this case and will
therefore award J&J enhanced statutory damages in that amount.
In addition, J&J is entitled to recovery of full costs, including an award of reasonable
attorneys’ fees. 47 U.S.C. § 605(e)(3)(B)(iii). Defendants agreed in their response that the costs
and attorneys’ fees requested by J&J are reasonable. (DE 38 ¶¶ 3, 5). The following costs and
attorneys’ fees (DE 35-4; DE 35-5) are properly awarded to J&J in a total amount of $3,609.25:
(1)

Investigative costs

$650.00

(2)

Filing fee

$400.00

(3)

Service of process

(4)

Advance to local counsel to identify and serve initiating suit
papers upon Defendants

$100.00

(5)

Attorney fees for national counsel Thomas P. Riley
(0.70 hours x $500.00/hour)

$350.00

$13.00

6

(6)

Fees for Mr. Riley’s administrative assistant
(2.35 hours x $100.00/hour)

(7)

Attorney fees for Mr. Riley’s associate attorney
(0.15 hours x $275.00/hour)

(8)

Attorney fees for local counsel Charlie W. Gordon
(10.4 hours x 175.00/hour)

Total:

$235.00

$41.25

$1,820.00

$3,609.25
III. CONCLUSION

For the foregoing reasons, J&J’s motion to establish damages for default judgment (DE
35) is GRANTED. The Clerk is DIRECTED to enter a judgment in favor of J&J and against
Defendants, jointly and severally, in the sum of $14,400.00, plus attorneys’ fees and costs of
$3,609.25.
SO ORDERED.
Entered this 8th day of April 2016.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge

7