G & G Closed-Circuit Events L L C v. Maracas Mexican Restaurant L L C et al

Filing 30

MEMORANDUM RULING re 27 MOTION for Default Judgment as to Maracas Mexican Restaurant, LLC d/b/a Maracas Mexican Restaurant and Antonio Martinez filed by G & G Closed Circuit Events L L C. Signed by Judge S Maurice Hicks on 09/22/2016. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
G&G CLOSED CIRCUIT EVENTS, LLC

CIVIL ACTION NO. 14-3208

VERSUS

JUDGE S. MAURICE HICKS, JR.

MARACS MEXICAN RESTAURANT, LLC
ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Before the Court is Plaintiff G&G Closed Circuit Events, LLC’s ("G&G") Motion for
Default Judgment under Federal Rule of Civil Procedure 55. See Record Document 27.
G&G seeks a default judgment against Defendants Maracas Mexican Restaurant, LLC
d/b/a Maracas Mexican Restaurant ("Maracas") and Antonio Martinez ("Martinez"). One
of the original defendants, Josefina Sandoval, filed a Suggestion of Bankruptcy as an
answer and was terminated on January 4, 2016. See Record Document 7. The fourth
Defendant in this matter, Olaf Lara ("Lara"), timely filed a pro se answer and thus G&G
does not seek a default judgment against him. See Record Document 6. For the reasons
announced below, the Court grants the Plaintiff's Motion.
I. Factual & Procedural Background
G&G alleges that the Defendants intercepted and played a pay-per-view boxing
match at Maracas Mexican Restaurant in Bossier City, Louisiana on November 10, 2012,
without purchasing a license from G&G, the pay-per-view distributor of the match, in
violation of 18 U.S.C. §§ 2511 and 2520 and 47 U.S.C. §§ 553 and 605. See Record
Document 1 at 2. According to the complaint, Maracas operated and owned Maracas
Mexican Restaurant at the time of the broadcast at issue. See id. at 4-5.

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Ten months after originally commencing this suit, G&G filed a Motion for Entry of
Default against Maracas and Martinez because they had failed to file any responsive
pleadings. See Record Document 25. The Clerk accordingly filed an Entry of Default
against Maracas and Martinez. See Record Document 26. Following the 14-day delay
required under local rules, G&G moved for default judgment against Maracas and
Martinez seeking statutory damages provided by the statutes under which it filed suit. See
Record Document 27. Thus, the issue before the Court now is whether G&G is entitled to
default judgment and, if so, in what amount.
II. Legal Standard
A default judgment involves three steps: (1) default, (2) entry of default, and (3)
default judgment. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) (citing
Fed. R. Civ. P. 55(a)). "A default occurs when a defendant has failed to plead or otherwise
respond to the complaint within the time required by the Federal Rules. An entry of default
is what the clerk enters when the default is established by affidavit or otherwise. After
defendant's default has been entered, plaintiff may apply for a judgment based on such
default. This is a default judgment." Id. (citations omitted).
By defaulting, a defendant admits to the plaintiff's well-pleaded allegations of fact,
at least with respect to liability. See Jackson v. FIE Corp., 302 F.3d 515, 524 (5th Cir.
2002) (citing Nishimatsu Constr. Co., Ltd. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th
Cir. 1975)). Even though the facts are admitted, the plaintiff still has the burden of showing
that they give rise to a viable cause of action. See Nishimatsu Constr., 515 F.2d at 1206.
Thus, a default judgment "must not differ in kind from, or exceed in amount, what is
demanded in the pleadings." Fed. R. Civ. P. 54(c).

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To determine the amount of damages in a default judgment, a court may rely on
"detailed affidavits and documentary evidence, supplemented by the district court Judge's
personal knowledge of the record." James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993)
(citation omitted). Although Rule 55(b) grants a court discretion to convene an evidentiary
hearing on the issue of damages, Fed. R. Civ. P. 55(b)(2)(B), a hearing is not necessary
where "the amount claimed is a liquidated sum or one capable of mathematical
calculation." United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).
III. Discussion
A. Liability
i. Liability under 47 U.S.C. §§ 553 or 605
The Court first addresses whether G&G may assert claims against the Defendants
under 47 U.S.C. §§ 553 or 605. G&G asserts claims in this matter under both 47 U.S.C.
§ 553 and § 605 but concedes in its Motion that "some federal courts have held that a
successful plaintiff may only receive damages under one of those laws but not both."
Record Document 27 at 4. Indeed, depending on whether the communication that is
intercepted is transmitted by wire or wirelessly, 47 U.S.C. § 553 and § 605 provide
mutually exclusive causes of action. See J&J Sports Prods., Inc. v. Mandell Family
Ventures, L.L.C., 751 F.3d 346, 351 (5th Cir. 2014); J & J Sports Prods., Inc. v.
Giuseppe's Bistro, LLC, No. CIV.A. 14-1326, 2015 U.S. Dist. LEXIS 44736, 2015 WL
1540364, at *2 (E.D. La. Apr. 6, 2015) (citation omitted). Where the communication is
transmitted by wire, § 553 controls. See Mandell, 751 F.3d at 351. Where the
communication is transmitted wirelessly, which includes by satellite, § 605 controls. See
J&J Sports Prods., Inc v. Bandera Cowboy Bar LLC, No. 5:15-CV-352-DAE, 2016 U.S.

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Dist. LEXIS 58603, 2016 WL 2349123, at *2 (W.D. Tex.). Thus, a defendant cannot violate
both § 553 and § 605 by a single act of interception. See Giuseppe's Bistro, 2015 U.S.
Dist. LEXIS 44736, 2015 WL 1540364, at *2 (citation omitted).
In the instant case, there is no evidence indicating whether the transmission of the
licensed program was made by wire or wirelessly, as G&G admits in its Motion. See
Record Document 27 at 3. However, the affidavit of Curtis Giese, G&G’s investigator,
states that the program was actually shown in the restaurant on November 10, 2012. See
Record Document 27-4 at 1. Therefore, though it is impossible to determine whether by
wire or wirelessly, the program must have been transmitted to the restaurant by one of
these two means, and the absence of proof of the means will not preclude G&G’s
recovery. See J&J Sports Prods. v. Perez-Delarosa, LLC, 2015 U.S. Dist. LEXIS 41761
at *4 (E.D. La. 2015) (entering a default judgment under § 553 when plaintiff was unable
to prove whether the defendants’ conduct violated § 553 or § 605 because of defendants’
failure to respond to the lawsuit or participate in discovery). Because the range of
permissible statutory damages is larger under § 553 and includes the entire range of
permissible damages under § 605, the Court will analyze this case under § 553.
ii. Liability under 47 U.S.C. § 553
To prevail under 47 U.S.C. § 553 against Maracas, G&G must show that (1) that
the boxing match was intercepted or received in Maracas Mexican Restaurant, (2) that
the boxing match was shown without authorization by a cable operator or by G&G, and
(3) that G&G was the exclusive licensee of the boxing match. See 47 U.S.C. § 553(a)(1).
In this matter, the pleadings and evidence submitted in connection with the pending
motion establish all three of these elements. See Record Documents 1; 27-4; and 27-7.

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Maracas is therefore liable under 47 U.S.C. § 553 for showing a pay-per-view boxing
match without G&G's permission on November 10, 2012.
A defendant is also liable under § 553 if he assists in the interception or receipt of
a communication service without the authorization to do so. 47 U.S.C. § 553(a)(1). The
complaint alleges that Martinez, as an individual, "willfully directed" Maracas' employees
to intercept and broadcast the boxing match on November 10, 2012. Record Document
1 at 7. Martinez is therefore also liable under 47 U.S.C. § 533 for showing a pay-per-view
boxing match without G&Gs permission on November 10, 2012.
iii. Liability under 18 U.S.C. § 2511 or 2520
Because the Court has found liability under § 553, it need not address G&G's
claims under 18 U.S.C. § 2511 or 2520. In its complaint, G&G notes that it "does not seek
double damages" and that if the Court finds there was a violation under 47 U.S.C. § § 553
or 605 or 18 U.S.C. § § 2511 or 2520, then the Court can construe G&G as asserting its
claims under these statutes in the alternative and therefore need not address all of them.
Record Document 1 at 12. Accordingly, having found in favor of G&G with respect to its
claims under 47 U.S.C. § 553, the Court does not need to address whether there were
any violations under 18 U.S.C. § 2511 or 2520.
B. Damages and Attorney's Fees
Section 553 provides for both actual and statutory damages. G&G seeks statutory
damages as well as attorney's fees and costs. Section 553(c)(3)(A)(ii) states that "the
party aggrieved may recover an award of statutory damages for all violations involved in
the action, in a sum of not less than $250 or more than $10,000 as the court considers
just."

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Courts take one of two approaches in assessing damages in similar cases.1 One
approach awards damages based on the number of patrons in the establishment at the
time of the violation, while the other awards a flat sum for damages. See Joe Hand
Promotions, Inc. v. Garcia, 546 F. Supp. 2d 383, 386 (W.D. Tex. 2008). According to the
affidavit of G&G's president, the sublicensing fee for the boxing match was based upon
the capacity of the establishment. See Record Document 27-7 at 3. According to the
affidavit of Geise, the capacity of Gomez Mexican Restaurant was approximately 75
people. See Record Document 27-4 at 1. For an establishment with a capacity of 1-100
people, the commercial sublicense fee would have been $600.00. See Record Document
27-7 at 3. But G&G's investigator also attests that he only observed twelve patrons at the
restaurant at the time of the broadcast. See Record Document 27-4 at 1. Given the small
number of patrons at Maracas Mexican Restaurant at the time of the illegal broadcast
and the applicable sublicense fee of $600, the Court finds that $1,000.00 is an appropriate
award of statutory damages for G&G.
Plaintiff additionally seeks enhanced damages pursuant to § 553(c)(3)(A)(ii)(B),
which provides:
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 in its discretion may increase the award of
damages, whether actual or statutory, by an amount of not more than
$50,000 for each violation of subsection (a) of this section.

1

The Court finds it appropriate to rely on cases examining statutory damages pursuant
to both § 553 and § 605 because the remedial provisions of those two statutes are very
similar and the statutes offer a remedy for nearly identical conduct. See Charter
Commc'ns Ent'mt I, DST v. Burdulis, 460 F.3d 168, 170 n.2 (1st Cir. 2006) (explaining
that the remedies under the two statutes are similar, although § 605 has higher total
penalties and mandatory attorney's fees).
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Based on the factual allegations contained in the pleadings in this matter as well as the
evidence submitted in connection with the pending motion, see Record Document 27-4
(affidavit of the president of G&G), the Court finds that Maracas and Martinez willfully
violated § 553 and did so for the purpose of commercial advantage. Therefore, the Court
finds G&G is entitled to $500.00 in enhanced damages. The Court has selected this
number within its discretion, considering the few patrons at the restaurant at the time of
broadcast and the lack of any allegation that the Defendants had engaged in this type of
conduct on any previous occasions. See 47 U.S.C. § 553(c)(3)(A)(ii) (stating that statutory
damages under this section are to be between $250.00 and $10,000.00 “as the court
considers just”).
Plaintiff seeks an award of attorney's fees in an unspecified amount. The Court
declines to award attorney's fees because of insufficient support in the record, particularly
as to the time involved in handling this matter. See Local Rule 54.2; see also G & G
Closed Circuit Events LLC v. Rivals Sports Grill LLC, No. CIV.A. 6:12-3052, 2014 U.S.
Dist. LEXIS 5416, 2014 WL 198159, at *5 (W.D. La. Jan. 14, 2014).
IV. Conclusion
For the reasons assigned above, the Plaintiff's Motion for Default Judgment
(Record Document 27) is hereby GRANTED against defendants Maracas Mexican
Restaurant, LLC and Antonio Martinez. Plaintiff is awarded $1,000.00 as statutory
damages pursuant to 47 U.S.C. § 553(c)(3)(A)(ii) and $500.00 in enhanced damages
pursuant to 47 U.S.C. § 553(c)(3)(A)(ii)(B). Plaintiff is additionally awarded costs pursuant
to 47 U.S.C. § 553(c)(2)(C) and shall file a Memorandum of Costs in the form required by

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the Clerk of Court on or before November 1, 2016. A Default Judgment consistent with
this Memorandum Ruling shall issue herewith.
Olaf Lara is not subject to this Memorandum Ruling and has indicated in his answer
that he was no longer the owner of the restaurant at the time of the unauthorized
broadcast of the boxing match. See Record Document 6. Accordingly, IT IS ORDERED
that by November 1, 2016, G&G must either contact the chambers of Magistrate Judge
Hornsby to set a scheduling conference or dismiss its claims against Olaf Lara. Failure to
take one of those steps by November 1, 2016, may result in the Court dismissing G&G's
claims against Olaf Lara, without further notice, for failure to prosecute.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 22nd day of
September, 2016.

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