J&J Sports Productions, Inc. v. Camacho et al

Filing 22

MEMORANDUM OPINION signed by Senior Judge Thomas B. Russell on 5/31/17 granting 21 Motion for Default Judgment. cc: Counsel, Jose Camacho, Gabriel Guzman (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00141-TBR
J & J SPORTS PRODUCTIONS, INC.

Plaintiff,

v.
JOSE E. CAMACHO, individually and
d/b/a El Rincon Cuban Restaurant, et al.,

Defendants.

MEMORANDUM OPINION
J & J Sports Productions, Inc. filed this action against Jose E. Camacho and El
Rincon Market & Café LLC, bringing claims under 47 U.S.C. §§ 553 and 605, along with
a common-law claim for conversion, for broadcasting a pay-per-view program without
authorization. In prior orders, the Court entered default against Camacho and El Rincon
Market & Café LLC, and neither has acted since that time.

Now, J & J Sports

Productions has filed a motion for entry of a default judgment against them. Having
carefully reviewed the record before it, the Court finds entry of a default judgment to be
warranted. Accordingly, J & J Sport Productions, Inc.’s Motion for Entry of Default
Judgment, [R. 21], is GRANTED.
I.
A.
J & J Sports Productions, Inc. is a closed-circuit distributor of sports and
entertainment programming. [R. 21-4 at 2, ¶ 3 (Gagliardi’s Affidavit).] It purchases the
commercial exhibition rights to programming including, as pertinent to this action, those
related to “Toe to Toe”: Saul Alvarez v. Alfredo Angulo Light Middleweight
Championship Fight Program, which was broadcast on March 8, 2014. [Id.] J & J

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Sports Productions, in turn, sublicenses those exhibition rights to commercial
establishments for a fee based on the capacity of the location in question. [Id.]
Unsurprisingly, there are many who wish to exhibit popular sports programming
but remain unwilling to pay for the privilege. [Id., ¶ 4.] To make sure those businesses
pay their fair share, J & J Sports Productions dispatches investigators to local bars and
restaurants on the nights of major showings, including the broadcast of “Toe to Toe”:
Saul Alvarez v. Alfredo Angulo Light Middleweight Championship Fight Program, to
catch “signal pirates” in the act. [Id. at 2–3, ¶¶ 5–6.]
Jose E. Camacho is a managing member of El Rincon Market & Café LLC, which
owns and operates the El Rincon Cuban Restaurant, an establishment located in
Louisville, Kentucky. [R. 1 at 2, ¶¶ 7 (Complaint).] An investigator for J & J Sports
Productions, David Lee Bringer, visited the El Rincon Cuban Restaurant on the night of
March 8. [R. 21-3 at 1, ¶ 3 (Bringer’s Affidavit).] Inside the establishment, Bringer
observed three televisions exhibiting “Toe to Toe”: Saul Alvarez v. Alfredo Angulo Light
Middleweight Championship Fight Program. [Id. at 3, ¶¶ 12–13.] El Rincon Market &
Café LLC, however, had not entered into a sublicensing agreement with J & J Sports
Productions to exhibit that program. [R. 21-4 at 3, ¶ 7.] Had Camacho and El Rincon
Market & Café LLC paid for the right to exhibit that program, the cost would have been
$1,200.00. [Id. at 11 (Rates).]
B.
J & J Sports Productions sued Camacho and El Rincon Market & Café LLC,
bringing claims under 47 U.S.C. §§ 553 and 605, along with a common-law claim for
conversion, for broadcasting the program without appropriate authorization. [R. 1 at 4–7,

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¶¶ 15–33.] El Rincon Market & Café LLC were served with copies of the complaint and
summons on September 7, 2016. [R. 7 at 1–2 (Proof of Service); R. 11-1 at 1 (Affidavit
for Entry of Default).] Camacho was served with copies of the same on October 4, 2016.
[R. 14 at 3 (Proof of Service); R. 15-1 at 1 (Affidavit for Entry of Default).] However,
neither appeared or filed an answer (or any other pleadings) to defend against this action.
The Court entered default against El Rincon Market & Café LLC on October 13, 2016.
[R. 12 (Entry of Default).] It entered default against Camacho on April 4, 2017. [R. 16
(Entry of Default).] No action has been taken by either Camacho or El Rincon Market &
Café LLC since default was entered. Now, J & J Sports Productions moves for entry of a
default judgment against them. [R. 21 (Motion for Entry of Default Judgment).]
II.
Upon default, the Court takes as true all factual allegations in the complaint
except those relating to the amount of damages. Fed. R. Civ. P. 8(b)(6); see also Thomas
v. Miller, 489 F.3d 293, 299 (6th Cir. 2007); Antoine v. Atlas Turner, Inc., 66 F.3d 105,
110 (6th Cir. 1995). Even after the entry of default, however, the decision “to grant a
default judgment is within the Court’s discretion.” AF Holdings LLC v. Bossard, 976 F.
Supp. 2d 927, 929 (W.D. Mich. 2013) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.
1974)).

In determining whether to enter a default judgment, courts in this Circuit

typically consider factors such as:
[1] the amount of money potentially involved; [2] whether material issues
of fact or issues of substantial public importance are at issue; [3] whether
the default is largely technical; [4] whether plaintiff has been substantially
prejudiced by the delay involved; [5] and whether the grounds for default
are clearly established or are in doubt.
10A Charles A. Wright et al., Federal Practice and Procedure § 2685 (4th ed.), Westlaw
(database updated Apr. 2017) (footnotes omitted).
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III.
J & J Sports Productions moves for entry of a default judgment on its claim under
47 U.S.C. § 605 or, in the alternative, on its claim under 47 U.S.C. § 553.1 [R. 21 at 1–
2.] The Court holds entry of a default judgment to be warranted on J & J Sports
Productions’ § 553 claim. However, the same cannot be said for its § 605 claim.
Section 553 prohibits any person from “intercept[ing] . . . any communications
service offered over a cable system” without specific authorization.

47 U.S.C. §

553(a)(1). Section 605, in turn, prohibits any person from “intercept[ing] any radio
communication,” id. § 605(a), which includes satellite signals, see United States v. One
Macom Video Cipher II, SN A6J050073, 985 F.2d 258, 260 (6th Cir. 1993). It is wellestablished that courts will not award statutory damages under both § 605 and § 553
where those claims arise from a single set of operative facts. Joe Hand Promotions, Inc.
v. Streshly, 655 F. Supp. 2d 1136, 1137 (S.D. Cal. 2009) (citing Time Warner Cable of
N.Y.C. v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 489 (S.D.N.Y. 1999); Joe
Hand Promotions, Inc. v. Dailey, No. C 01-4219, 2003 WL 1342998, at *2 (N.D. Cal.
Mar. 13, 2003)); accord J & J Sports Prods., Inc. v. Main Hookah Lounge, LLC, No. 14CV-01075-W-DGK, 2015 WL 6457300, at *2 (W.D. Mo. Oct. 26, 2015); see also 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).
Here, J & J Sports Productions asks for judgment under § 605 or, in the
alternative, under § 553. [R. 21-2 at 8 (Memorandum in Support).] While J & J Sports
Productions has adduced sufficient evidence to show that the broadcast in question was
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J & J Sports Productions, Inc. appears to have abandoned its common-law conversion claim.
Accordingly, the Court need not address it.

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unlawfully intercepted, [see R. 21-3 at 1–2; R. 21-4 at 3, ¶ 7], it has not demonstrated that
the interception was more likely of a satellite transmission than of a cable transmission.
Accordingly, the Court will treat the interception as that of a cable transmission, which §
553 prohibits. See Joe Hand Promotions, Inc. v. Dick, No. 5:15-CV-00202-TBR, 2017
WL 1313792, at *2 (W.D. Ky. Apr. 5, 2017).
A person aggrieved by a violation of § 553, such as J & J Sports Productions, may
bring a civil action to recover actual or statutory damages, full costs, and attorney’s fees.
47 U.S.C. § 553(c)(1), (2)(B)–(C). In way of statutory damages, the aggrieved party may
recover an award “in a sum of not less than $250 or more than $10,000” as the Court
“considers just.” Id. § 553(c)(3)(A)(ii). If the violation was willful and for purposes of
commercial advantage or private financial gain, then the Court may in its discretion
“increase the award of damages . . . by an amount of not more than $50,000.” Id. §
553(c)(3)(B). On the other hand, if the “violator was not aware and had no reason to
believe his acts” violated the law, then the Court may in its discretion “reduce the award
of damages to a sum of not less than $100.” Id. § 553(c)(3)(C).
From the affidavit of Joseph M. Gagliardi, the President of J & J Sports
Productions, the Court is satisfied that the program was not “mistakenly, innocently, or
accidentally intercepted.” [R. 21-4 at 3–4, ¶ 9.] It seems apparent that the interception
was for private financial gain too. [Id. at 5–6, ¶¶ 15–17.] Based on J & J Sports
Productions’ pricing structure, Camacho and El Rincon Market & Café LLC ought to
have paid J & J Sports Productions around $1,200.00 for a sublicense to broadcast the
program. [Id. at 11; R. 21-3 at 1, ¶ 3.] Instead, J & J Sports Productions spent $2,043.16
to prosecute this action. [R. 21-6 at 1 (Cooper’s Affidavit).]

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Having carefully reviewed the record, the Court finds statutory damages in the
amount of $2,400 to be appropriate and within the typical range awarded in this District.
See Dick, 2017 WL 1313792, at *3 (collecting cases). An award of $2,043.16 to cover J
& J Sports Productions’ costs and attorney’s fees is reasonable too. See 47 U.S.C. §
553(c)(2)(C). Therefore, the Court will enter judgment against Camacho and El Rincon
Market & Café LLC in the amount of $4,443.16.
IV.
J & J Sports Productions, Inc.’s Motion for Entry of Default Judgment, [R. 21], is
GRANTED.
A separate order and judgment shall issue.
Date:

May 31, 2017

cc:

Counsel of Record
Jose E. Camacho
8118 Preston Highway
Louisville, KY 40219
Gabriel Jamie Guzman
Registered Agent
El Rincon Market & Café LLC, d/b/a El Rincon Cuban Restaurant
8118 Preston Highway
Louisville, KY 40219

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