J & J Sports Productions, Inc. v. Mario, LLC, d/b/a Broadway Night Club et al

Filing 53

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for default judgment # 51 is granted in part only to the extent set out above and is denied in all other respects. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 4/29/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
J&J SPORTS PRODUCTIONS, INC.,)
)
Plaintiff,
)
)
v.
)
)
MARIO, LLC, d/b/a The Broadway )
Nightclub, et al.,
)
)
Defendants,
)

Case No. 4:13 CV 212 RWS

MEMORANDUM AND ORDER
This matter is before me on Plaintiff J&J Sports Productions, Inc.=s motion for
a default judgment against Defendant Mario, LLC, d/b/a The Broadway Nightclub.
J&J Sports owned the nationwide television distribution rights to AStar Power:
Floyd Maywether, Jr. v. Victor Ortiz Championship Fight Program@ telecast which
took place on September 17, 2011. J&J Sports sold the rights to publically exhibit
this broadcast to various public establishments (eg. hotels, racetracks, casinos, bars,
taverns, restaurants, social clubs, etc.) A number of these establishments illegally
intercepted the broadcast and showed it to their patrons without obtaining a license
to do so from J&J Sports.
The present lawsuit alleges that Defendant Mario, LLC illegally intercepted
the broadcast and played it to patrons at the The Broadway Nightclub. J&J Sports
asserts claims under two alternative federal statutes and for state law conversion.

J&J Sports’ first claim is pursuant to the Unauthorized Reception of Cable
Services, 47 U.S.C. ' 553. This statute prohibits the unauthorized receipt of
programing from a cable service like Charter Communications. It provides for
statutory damages of not less than $250 but not more than $10,000. Id. at
'553(c)(3)(A)(ii). Where the violation was committed willfully and for the
purpose of commercial gain the statutory damages may be increased in an amount of
not more than $50,000. Id. at ' 553(c)(3)(B). Attorney’s fees and costs may also
be recovered under this statute. Id. at ' 553(c)(2)(C).
Its second claim is under the Unauthorized Publication or Use of
Communications, 47 U.S.C. ' 605. In the context of the present lawsuit, this statute
prohibits the interception of video programming from a satellite that is primarily
intended for the direct receipt by cable operators to send out over their cable
network. It provides for statutory damages of not less than $1,000 but not more
than $10,000. Id. at ' 605(e)(3)(C)(i)(II). Where the violation was committed
willfully and for the purpose of commercial gain the statutory damages may be
increased in an amount of not more than $100,000. Id. at ' 605(e)(3)(C)(ii).
Attorney’s fees and costs may also be recovered under this statute. Id. at '
605(e)(3)(B)(iii).
~2~

The third claim in this lawsuit is a state law conversion claim. According to
the rate document submitted by J&J Sports, the fee it would have collected from
Mario, LLC based on its occupancy limit of 300 patrons, was $6,200.
Defendant Mario, LLC is a limited liability company. Mario, LLC has been
administratively dissolved, has no assets, and is no longer in business. Mario, LLC
has been served. On October 10, 2013, the Clerk of Court entered a default against
the Mario, LLC because it failed to file an answer or other responsive pleading.
In its motion for a default judgment, J&J Sports seeks a total of $150,000 plus
$635.00 in Acourt costs.@ J&J Sports also prays for $5,000.00 in attorney’s fees. In
seeking a judgment of $150,000, J&J Sports seeks to collect statutory damages
under both § 605 and under § 553. J&J Sports can recover either under ' 605 if
Mario, LLC intercepted the broadcast from a satellite or under ' 553 if Mario, LLC
intercepted the broadcast from a cable service. J&J Sports cannot recover damages
under both statutes.
J&J Sports’ investigator stated in her affidavit that Mario, LLC had a
maximum occupancy of 300 patrons. She reported that approximately twenty-five
patrons were in the bar at the time she was there. Neither the complaint nor any
other filings in this matter indicate which method Mario, LLC used to intercept the
broadcast. I will therefore grant J&J Sports a default judgment under ' 605. J&J
Sports’ fee for the telecast, based on a 300 person occupancy limit, would have been
$6,200. Based on that fee I will grant J&J Sports a judgment for statutory damages
~3~

in the amount of $10,000 under ' 605(e)(3)(C)(i)(II). In order to deter future
infractions I will award an additional $10,000.00 in enhanced statutory damages
under ' 605(e)(3)(C)(ii). I will also grant J&J Sports their costs in the amount of
$635.00 under ' 605(e)(3)(B)(iii).
Finally, J&J Sports seeks an award of attorney’s fees. J&J Sports’ counsel
has submitted an affidavit that he spent ten hours on this case at the rate of $250 per
hour.1 I find the time and rate to be reasonable and will award attorney’s fees in the
amount of $2,500. The total award will be in the amount of $23,135.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff=s motion for default judgment
[#51] is granted in part only to the extent set out above and is denied in all other
respects.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 29th day of April, 2015.

1

I note that in the affidavit, counsel states that he spent ten hours on the case at the rate of $250 per hour but instead of
calculating a fee of $2,500, inadvertently calculated a fee of $5,000. I also note that the affidavit is not supported by
any time records of counsel.

~4~