J & J Sports Productions, Incorporated v. Shaba et al

Filing 13

OPINION AND ORDER GRANTING PLAINTIFFSMOTION FOR DEFAULT JUDGMENT[#10]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
J & J SPORTS PRODUCTIONS, INC.
Plaintiff,

Case No. 17-cv-11316

v.

UNITED STATES DISTRICT COURT
JUDGE
GERSHWIN A. DRAIN

SHABA, ET AL.
Defendants.
______________

/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
[#10]
I. INTRODUCTION
Pending before the Court is Plaintiff J & J Sports Productions, Inc.’s Motion
for Default Judgment. This action arises from Plaintiff’s allegation that Defendants
Forbidden Fruits Hookah Bar, Inc., David Shaba, and Brandon Dabish illegally
broadcasted a boxing match against federal law. Defendants have not responded to
the Complaint or otherwise defended this action. Defendants have not opposed the
Motion for Default Judgment. For the following reasons, the Court will grant
Plaintiff’s Motion.

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II. FACTUAL BACKGROUND
This action arises out of a pay-per-view boxing match between Floyd
Mayweather, Jr. and Marcos Rene Maidana on May 3, 2014. Dkt. No 10, pg. 6 (Pg.
ID 33). Plaintiff owned the distribution rights to the May 3 boxing match. Id. at pg.
7 (Pg. ID 34). According to the Plaintiff, Defendants unlawfully displayed the
program without paying the required commercial license fee in violation of the
Communications Act of 1934 and The Cable & Television Consumer Protection
and Competition Act of 1992. Id. at pg. 8 (Pg. ID 35); Dkt. No. 1, pg. 1 (Pg. ID 1).
Defendants allegedly displayed the program at the Forbidden Fruits Hookah Bar
located in Shelby Township, Michigan. Dkt. No. 10, pg. 4 (Pg. ID 31).
Plaintiff filed a complaint against four defendants: Forbidden Fruits Hookah
Bar, Inc., David Shaba, Brandon Dabish, and Awa Ayar on April 25, 2017. Dkt.
No. 1. Plaintiff served Forbidden Fruits Hookah Bar, Inc., Mr. Shaba, and Mr.
Dabish on May 7, 2017. Pl.’s Exs. 2–4. None of these Defendants responded to
Plaintiff’s Complaint. On June 7, 2017, the Clerk of Court entered a default as to
Forbidden Fruits Hookah Bar, Mr. Shaba, and Mr. Dabish. Dkt. No. 9. On
December 12, 2017, Plaintiff filed its Motion for Default Judgment. Dkt. No. 10.
Plaintiff also voluntarily dismissed Awa Ayar as a defendant on that same day.
Dkt. No. 11. None of the Defendants have opposed or otherwise responded to the
Motion. In its Motion, Plaintiff claims damages in the amount of $3,000 for the
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cost to legally display the program, and $1,930.90 in attorney’s fees and costs. Dkt.
No. 10, pg. 4 (Pg. ID 31).
III. LEGAL STANDARD
The clerk of court must enter a default judgment [w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend . . . .” Fed. R. Civ. P. 55(a). An entry of default “conclusively establishes
every factual predicate of a claim for relief.” Thomas v. Miller, 489 F.3d 293, 299
(6th Cir. 2007) (citing Harmon v. CSX Transp., 110 F.3d 364, 368 (6th Cir. 1997)).
Default “establishes the defendant’s liability.” Id. (citing Goldman, Antonetti,
Ferraiuoli, Axtmayer & Hertell v. Medfit Int’l, Inc., 982 F.2d 686, 693 (1st Cir.
1993)). However, entry of a default does not establish damages. See Antoine v.
Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). The plaintiff must still
establish damages. Id.
IV. DISCUSSION
Proof of Damages
As stated above, a default judgment “establishes the defendant’s liability.”
Thomas v. Miller, 489 F.3d at 299. Therefore this Court finds Defendants liable
under the Communications Act of 1934, 42 U.S.C. § 605, and The Cable &

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Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553.
This Court will therefore only discuss the issue of damages.
The Communications Act of 1934 limits statutory damages to $10,000 for
every violation. 47 U.S.C. § 605(3)(C)(i)(II). However, if the Court concludes that
there was a willful violation, it may increase the award of damages by no more
than $100,000. 47 U.S.C. § 605(3)(C)(ii). The Communications Act also states that
the Court “shall direct the recovery of full costs, including awarding reasonable
attorneys’ fees to an aggrieved party who prevails.” 47 U.S.C. § 605(3)(B)(iii).
The Cable & Television Consumer Protection and Competition Act of 1992
limits statutory damages to $10,000. 47 U.S.C. § 553(c)(3)(A)(ii). But if the Court
concludes that there was a willful violation, it may increase the award of damages
by no more than $50,000. 47 U.S.C. § 553 (c)(3)(B). The Cable & Television
Consumer Protection and Competition Act also states that the court may “direct the
recovery of full costs, including awarding reasonable attorneys’ fees to an
aggrieved party who prevails.” 47 U.S.C. § 553 (c)(2)(C).
This Court and courts within the Sixth Circuit have held that a defendant
who is liable under both 47 U.S.C. § 553 and 47 U.S.C. § 605 may only recover
under one section. See J & J Sports Prods., Inc. v. SJV Invs., No. 16-cv-12271,
2017 WL 218079, at *2 (E.D. Mich. Jan. 19, 2017); J & J Sports Prods., Inc. v.
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Palumbo, No. 4:12-cv-2091, 2012 WL 6861507, at *3 (N.D. Ohio Dec. 12, 2012);
Joe Hand Promotions, Inc. v. RPM Mgmt. Co. LLC, No. 2:11-cv-377, 2011 WL
5389425, at *2 (S.D. Ohio Nov. 7, 2011). The injured party may choose between
actual or statutory damages. 47 U.S.C. § 605(e)(3)(C)(i). Plaintiff requests
statutory damages. Dkt. No. 10, p. 12 (Pg. ID 39). Plaintiff can recover statutory
damages for each violation, and the total amount of recovery must be between
$1,000 to $10,000 as determined by the Court. 47 U.S.C. § 605(e)(3)(C)(i)(II).
However, where the court finds that the violation was committed “willfully and for
the purposes of direct or indirect commercial advantage or private financial gain”
the court can increase the award by the amount of $100,000 per violation. 47
U.S.C. § 605(e)(3)(C)(ii). Here, Plaintiff requests enhanced damages. Dkt. No. 10,
pg. 13 (Pg. ID 40).
The Court finds that Plaintiff has shown willfulness and commercial
advantage. Defendants broadcast the fight at a bar with approximately thirteen
televisions, which all displayed the fighting event. See Dkt. No. 10-8, pg. 2 (Pg. ID
78). The bar was at half capacity on the night the fight was shown, with about 70
people out of a total 140 people that could fit inside. Id. at pg. 3 (Pg. ID 79). The
Court finds that this is sufficient evidence to show that the violation was willful
and done for the purpose of commercial advantage. See Joe Hand Promotions, Inc.
v. Pickett, No. 5:15CV478, 2016 WL 3668162, at *5 (N.D. Ohio July 11, 2016)
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(finding willfulness and commercial advantage where the locale was at capacity
and the fight was displayed on all televisions there, despite the lack of a cover
charge or advertising).
In this case, the cost of the program would have been $3,000.00 if
Defendants had legally purchased the right to broadcast it. Dkt. No. 10-9, pg. 2
(Pg. ID 83). The Court determines that a total award of $6,000.00 is just. This
amount takes into consideration both statutory and enhanced damages.
Plaintiff also requests $1,930.90 in attorney’s fees and costs. Dkt. No. 10,
pg. 4 (Pg. ID 31). Plaintiff submitted an invoice providing a billable rate of
$245.00 per hour for a total of 5.60 billable hours and $558.90 in costs. Dkt. No.
10-10, pg. 2 (Pg. ID 85). Plaintiff also submitted the 2014 Economics of Law
Practice in Michigan Report to prove that the rate of $245.00 per hour is
reasonable. Dkt. No. 10-11, pg. 2 (Pg. ID 87). According to the Report, the median
billable rate for all attorneys in 2013 was $245.00 per hour. Id. at pg. 7 (Pg. ID 92).
The median billable rate for attorneys in Wayne County was $250.00 per hour. Id.
at pg. 12 (Pg. ID 97). This Court has also previously held that $245.00 per hour
was a reasonable rate. J & J Sports Prods., Inc. v. SJV Invs., No. 16-cv-12271,
2017 WL 218079, at *2 (E.D. Mich. Jan. 19, 2017). Therefore, this Court finds that
$245.00 is a reasonable rate. Accordingly, the Court finds that the requested
attorney’s fees and costs of $1,930.90 is reasonable.
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V. CONCLUSION
For the reasons discussed herein, the Court will grant Plaintiff’s Motion for
Default Judgment. Defendants should be jointly and severally liable to Plaintiff in
the total amount of $ 7,930.90, which includes $6,000 in statutory and enhanced
damages and $1,930.90 in attorney’s fees.
SO ORDERED.
Dated: January 9, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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