Joe Hand Promotions, Inc. v. Kickers Corner of the Americas, Inc. et al

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs motion for default judgment against Defendants on Counts I and II of Plaintiffs complaint is GRANTED. Doc. No. 16 . IT IS FURTHER ORDERED that Count III is DISMISSED. A separate judgment of default shall accompany this Memorandum and Order. (RAK). Modified on 2/28/2014 (RAK).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOE HAND PROMOTIONS, INC.,

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Plaintiff,
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vs.
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KICKERS CORNER OF THE,
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AMERICAS, INC., d/b/a KICKERS, et al. )
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Defendants.
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Case No. 4:12CV02387 AGF

MEMORANDUM AND ORDER

The matter is before the Court on Plaintiff Joe Hand Promotions, Inc.’s motion
for default judgment. Plaintiff, an international distributor of sports and entertainment
programming, brings this action alleging violations of the Federal Communications Act,
47 U.S.C. § 605 (Count I), the Cable & Television Consumer Protection and
Competition Act, 47 U.S.C. § 553 (Count II), and common law claim of conversion
under Missouri law. (Count III).
Plaintiff alleges that Defendant Kickers Corner of the Americas, Inc., d/b/a
Kickers, a commercial establishment located in Saint Louis, Missouri, and Christine
Fila, an individual, unlawfully intercepted and exhibited a nationwide broadcast of
Ultimate Fighting Championship 124: Georges St. Pierre v. Josh Koscheck (the
“Program”) for which Plaintiff alleges it held exclusive domestic distribution rights.

(Doc. No. 1.) Upon consideration of the motion and the applicable law, the Court will
enter default judgment in favor of Plaintiff on Counts I and II and will dismiss Count III.
Plaintiff filed suit on December 28, 2012, and on January 12, 2013, Plaintiff
served Defendant with the summons and complaint in this action. (Doc. No. 6.)
Defendants requested and were granted additional time to answer but did not file an
answer before that extension of time expired on February 28, 2013. (Doc. No. 7.) On
Plaintiff’s motion, the Clerk of Court entered default against Defendants on June 10,
2013. (Doc. No. 11.) On June 14, 2013, the Court ordered Plaintiff to file a motion for
default judgment within 14 days. (Doc. No. 12.) Plaintiff requested and was granted
additional time to file its motion for default judgment but failed to do so within the time
allowed. (Doc. No. 13.) Therefore, on January 9, 2014, the Court ordered Plaintiff to
show cause why the matter should not be dismissed for failure to prosecute. (Doc. No.
15.) On January 14, 2014, Plaintiff timely filed the instant motion for default judgment
with supporting documentation on Counts I and II, seeking statutory damages under 47
U.S.C. §§ 553 & 605 in the amount of $150,000, as well as attorney’s fees, costs, and
post-judgment interest. (Doc. Nos. 16 and 17.)
Facts
Plaintiff purchases the distribution rights for sports and entertainment
programming and grants limited exhibition rights to bars, restaurants and other
commercial establishments in exchange for licenses fees. Plaintiff purchased the
exclusive rights to distribute the Program in the United States and encrypted the

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Program for interstate transmission to restrict its availability to authorized users under
Plaintiff’s license agreements. On December 11, 2010, an investigator hired by Plaintiff
observed the exhibition of the Program at Defendants’ commercial establishment.
Defendants had not purchased a commercial license for the Program from Plaintiff, and
Plaintiff alleges that Defendant must have illegally intercepted and exhibited the
Program. Because the Program is transmitted in an encrypted format, Plaintiff further
alleges that that Defendants’ unauthorized interception and exhibition of the Program
could not have been inadvertent and asserts instead that Defendants’ actions were
willful.
Standard for Default Judgment
Default judgments are disfavored in the law. United States ex rel. Time Equip.
Rental & Sales, Inc. v. Harre, 983 F.2d 128, 130 (8th Cir. 1993). Moreover, their entry
is discretionary. Taylor v. City of Ballwin, 859 F.2d 1330, 1332 (8th Cir. 1988). Prior to
the entry of a default judgment, a court should satisfy itself that the plaintiff is entitled to
judgment by reviewing the sufficiency of the complaint and the substantive merits of the
plaintiff’s claim. Jenkins v. E. Asset Mgmt., LLC, No. 4:08-CV-1032 CAS, 2009 WL
2488029, at *2 (E.D. Mo. Aug. 12, 2009).
The liability of a defendant is established upon entry of default, and therefore
once default is entered, a plaintiff is not required to establish its right to recover. Brown
v. Kenron Aluminum & Glass Corp., 477 F.2d 526, 531 (8th Cir. 1973). A party seeking
damages under a default judgment must, however, prove its rights to such damages with

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affidavits or other supporting documentation. See Fed. R. Civ. P. 8(b)(6) (stating that
“[a]n allegation—other than one relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not denied.”); see also Everyday
Learning Corp. v. Larson, 242 F.3d 815, 818 (8th Cir. 2001) (holding that “[w]hen a
default judgment is entered on a claim for an indefinite or uncertain amount of damages,
facts alleged in the complaint are taken as true, except facts relating to the amount of
damages, which must be proved in a supplemental hearing or proceeding”) (citations
omitted).
Discussion
In Count I of its complaint Plaintiff alleges a violation of 47 U.S.C. § 605 and
seeks statutory damages in the amount of $100,000. Section 605 prohibits a “person
receiving, assisting in receiving, transmitting or assisting in transmitting, any interstate
or foreign communication by wire or radio [from] divulg[ing] or publish[ing] the
existence, contents, substance, purport, effect, or meaning thereof.” Upon review of the
allegations in Plaintiff’s complaint the Court concludes that Plaintiff has established
Defendant’s liability under 47 U.S.C. § 605.
Similarly, in Count II of its complaint Plaintiff alleges a violation of 47 U.S.C. §
553 and seeks statutory damages in the amount of $50,000. 47 U.S.C. § 553 prohibits
“intercepting or receiving any communications service offered over a cable system,” and
upon review of the complaint the Court is satisfied that Plaintiff also has established its
right to recovery under 47 U.S.C. § 553.

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In its motion for default judgment, Plaintiff does not seek damages for the claim
of conversion alleged in Count III. Therefore, the Court will dismiss Count III of the
complaint for failure to prosecute.
Damages
Plaintiff does not seek actual damages, alleging only its right to statutory
damages under each of the statutes. Pursuant to 47 U.S.C. § 605 the Court may award
statutory damages of not less than $1,000 or more than $10,000 per violation. 47 U.S.C.
§ 605(e)(3)(C)(i)(II). If the Court “finds that the violation was committed willfully and
for purposes of direct or indirect commercial advantage,” the Court may, in its
discretion, award enhanced damages up to $100,000 per violation. 47 U.S.C. §
605(e)(3)(C)(ii). Pursuant to 47 U.S.C. § 553 the Court may award statutory damages of
not less than $250 or more than $10,000 per violation. 47 U.S.C. § 553(c)(3)(A)(ii).
Section 553 also permits the Court to award enhanced damages up to $50,000 where it
“finds that the violation was committed willfully and for purposes of commercial
advantage.” 47 U.S.C. § 553(c)(3)(B).
Plaintiff has requested the maximum amount of damages available under each
statute. Plaintiff argues that an award of enhanced damages is appropriate here because
Defendants acted willfully and for purposes of commercial advantage. Plaintiff further
argues that awarding the statutory maximum will serve as a deterrent to similar action by
other commercial establishments. Plaintiff does not allege, however, the other ground

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commonly cited in support of maximal damage award: that Defendant has repeatedly
violated these statutes. 47 U.S.C. §§ 553(c)(3)(B) & 605(e)(3)(C)(ii).
Courts in this district have granted the maximum amount of enhanced statutory
damages to aggrieved parties under §§ 605 and 553, but such awards are not common.
Compare Joe Hand Promotions, Inc. v. TL Productions, LLC, Nos. 4:09CV503,
4:09CV1633, 2010 WL 2428031, at *2 (E.D. Mo. June 10, 2010) (finding “knowing
violations” and awarding enhanced statutory damages under 47 U.S.C. § 605 of
$100,000 and $50,000 under 47 U.S.C. § 553) with Joe Hand Promotions, Inc. v.
Thompson, No. 4:11CV1740CAS, 2013 WL 466278, at *3 (E.D. Mo. Feb. 7, 2013)
(awarding $13,000 in statutory damages for a violation of 47 U.S.C. § 605); J & J Sports
Prods., Inc. v. Sirkco, LLC, No. 4:12CV763CDP, 2013 WL 363355, at *2 (E.D. Mo.
Jan. 24, 2013) (awarding $3,000 in statutory damages for a violation of 47 U.S.C. §
605); J & J Sports Prods., Inc. v. Diamond Kings, No. 4:11CV1637CEJ, 2012 WL
1134804, at *2 (E.D. Mo. Oct. 29, 2012) (awarding $3,000 in statutory damages for a
violation of 47 U.S.C. § 605); and Home Box Office v. Carlim, Inc., 838 F. Supp. 432,
436 (E.D. Mo. 1993) (awarding a total of $3,000 in statutory damages, consisting of
$2,000 pursuant to 47 U.S.C. § 553(c)(3)(A)&(c)(3)(B), and $1,000 pursuant to 47
U.S.C. § 605(e)(3)(C)(i)(II)).
Having considered the authorities Plaintiff presents and other applicable cases
from this jurisdiction, the Court finds that an award of $3,000 per violation under each
of the statutes is appropriate. See, e.g., Joe Hand Promotions, Inc., 2013 WL 466278, at

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*3 (awarding $13,000 in statutory damages ); J & J Sports Prods., Inc., 2013 WL
363355, at *2 (awarding $3,000 in statutory damages).
Plaintiff also seeks attorney’s fees of $2,500, $460 in costs, and post-judgment
interest. Both statutes authorize the recovery of attorney’s fees and costs and the Court
finds that Plaintiff has submitted sufficient documentation to support its requests for
attorney’s fees and costs. See 47 U.S.C. §§ 605(e)(3)(B)(iii) and 553(c)(2)(C). In
addition, Plaintiff is entitled to post-judgment interest at the rate set by federal law.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for default judgment against
Defendants on Counts I and II of Plaintiff’s complaint is GRANTED. (Doc. No. 16.)
IT IS FURTHER ORDERED that Count III is DISMISSED.
A separate judgment of default shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 28th day of February, 2014.

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