J & J Sports Productions, Inc. v. Mad Cow Entertainment, LLC et al

Filing 23

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Plaintiffs Second Motion for Default Judgment against Defendant Davidra S. Smith is GRANTED (ECF No. 22 ). The Clerk of the Court shall reinstate the Clerk's Entry of Default entered on July 7, 2015. IT IS FURTHER ORDERED that Plaintiffs Motion for Default Judgment is GRANTED consistent with this Memorandum and Order (ECF No. 16 ). IT IS FURTHER ORDERED that Plaintiff is awarded statutory damages in the amount of $6,000.00 against De fendant, representing $1,000.00 in statutory damages and $2,000.00 in enhanced damages for the violation under § 553 and the violation under § 605. IT IS FURTHER ORDERED that Plaintiff is entitled to attorney's fees in the amount of $2,500.00 and costs in the amount of $570.00. An appropriate judgment will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 12/18/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
V.

MAD COW ENTERTAINMENT, LLC,
a limited liability company, d/b/a
PURE ULTRA LOUNGE, and
DAVIDRA S. SMITH, an individual,
Defendants.

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No. 4:14CV2004 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs Motion for Default Judgment against
Defendants and Second Motion for Default Judgment against Defendant Davidra S. Smith (ECF
Nos. 16, 22). For the following reasons, the motions for default judgment will be granted in the
amount of $9,070.00.
Background

Plaintiff alleges that Defendant Mad Cow Entertainment, LLC ("Mad Cow") d/b/a Pure
Ultra Lounge, a commercial establishment located in Ferguson, Missouri, and Defendant owner
Davidra S. Smith, unlawfully intercepted and exhibited a December 8, 2012 broadcast of Manny
Pacquiao v. Juan Manuel Marquez, IV, Welterweight Fight Program ("Program") for which

Plaintiff alleges it held exclusive nationwide television distribution rights. (Compl. iii! 6, 7, 9,
12, ECF No. 1) Plaintiff asserts that the unauthorized broadcast was done willfully and for the
purposes of direct or indirect commercial advantage or private financial gain. (Compl. ii 12)
Plaintiff filed this action to recover damages for Defendants' violation of the
Communications Act of 1934, 47 U.S.C. §§ 605, et seq. (Count I), violation of the Cable and

Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §§ 553 , et seq. (Count
II), and for conversion under Missouri law (Count III). Plaintiff also seeks to recover attorneys'
fees and costs incurred in this action, as well as post-judgment interest. Defendant Davidra
Smith was served with the summons and complaint on March 5, 2015. Defendant Mad Cow was
served on March 23 , 2015 . Defendants did not timely file an answer or responsive pleading. On
July 7, 2015, the Clerk of the Court entered default against Defendants. Plaintiff also filed a
Motion for Default Judgment, requesting statutory damages of $110,000.00 in Count I; statutory
damages of $60,000.00 in Count II; and damages in the amount of $6,200.00 on the conversion
claim. Plaintiff further requested attorney' s fees and costs under each count, as well as postjudgment interest.
On August 11 , 2015 , Defendant Davidra Smith filed a prose Motion to Set Aside Default
Judgment. On November 12, 2015 , the Court granted Ms. Smith' s motion and ordered her to file
an Answer to the Complaint no later than November 30, 2015. Ms. Smith did not comply with
this Court's order, and on December 7, 2015 , Plaintiff filed a Second Motion for Default
Judgment.

Legal Standard
"It is well established ... that the entry of default by the Clerk does not entitle the nondefaulting party to a default judgment as a matter ofright." United States v. $345,510.00 in US.

Currency, No. Civ. 01-497(PAMJGL), 2002 WL 22040, at *2 (E.D. Minn. Jan. 2, 2002)
(citations omitted). Default judgments are disfavored under the law. United States ex rel. Time

Equip. Rental & Sales, Inc. v. Harre , 983 F .2d 128, 130 (8th Cir. 1993). Further, the entry of a
default judgment is committed to the sound discretion of the district court. Id.

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"[W]hen a default judgment is entered, facts alleged in the complaint may not be later
contested." Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010). However, "'it remains for
the [district] court to consider whether the unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere conclusions of law. "' Murray v. Lene, 595
F.3d 868, 871 (8th Cir. 2010) (quoting lOA C. Wright, A. Miller & M. Kane, Federal Practice
and Procedure § 2688 at 63 (3d ed. 1998)). Further, " [a] party seeking damages under a default
judgment must ... prove its rights to such damages with affidavits or other supporting
documentation." Joe Hand Promotions, Inc. v. Kickers Corner of the Americas, Inc., No.
4:12CV02387 AGF, 2014 WL 805731 , at *2 (E.D. Mo. Feb. 28, 2014) (citations omitted).

Discussion
In Count I of the Complaint, Plaintiff alleges a violation of 47 U.S.C. § 605 and seeks
statutory damages in the amount of $110,000. 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, except through authorized channels of
transmission or reception .... " 47 U.S.C. § 605(a). The statute allows the Court to award
statutory damages of not less than $1 ,000 or more than $10,000 for each 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 or private financial gain, the court in its
discretion may increase the award of damages ... by an amount of not more than $100,000 for
each violation .... " 47 U.S.C. § 605(e)(3)(C)(ii).
Under Count II, Plaintiff alleges that Defendants violated 47 U.S.C. § 553 and seeks
statutory damages in the amount of $60,000. Section 553 provides, " [n]o person shall intercept

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or receive or assist in intercepting or receiving any communications service offered over a cable
system, unless specifically authorized to do so by a cable operator or as may otherwise by
specifically authorized by law." 47 U.S.C. § 553(a)(l). The Court may award statutory damages
to an aggrieved party for all violations in a sum of not less than $250 or more than $10,000. 47
U.S.C. § 553(c)(3)(A)(ii). Where the Court finds "the violation was committed willfully and for
purposes of commercial advantage or private financial gain, the court in its discretion may
increase the award of damages ... by an amount of not more than $50,000." 4 7 U.S.C. §
553(c)(3)(B).
Plaintiff has requested the maximum amount of damages available under each statute.
Plaintiff argues that the Court should award the enhanced maximum statutory damages to
"effectively deter parties such as the Defendants from stealing proprietary programming."
Further, the Plaintiff requests that the Court increase the award of damages the maximum
amount for the willful violation of 47 U.S.C. §§ 553 and 605.
The Court accepts the factual allegations in Plaintiffs Complaint as true. Plaintiff has
established that it is entitled to damages for a willful violation of 47 U.S.C. §§ 553 and 605 for
the purpose of commercial gain. However, other than seeking maximum damages for a willful
violation based solely on a deterrent effect, Plaintiff presents no evidence that the Court should
award damages in the amount requested by Plaintiff. Plaintiff makes no allegations that
Defendants are repeat offenders or that Defendants received substantial financial gain. See Joe
Hand Promotions, Inc. v. Thompson, No. 4:11-CVC-1740 CAS, 2013 WL 466278, at *3 (E.D.

Mo. Feb. 7, 2013) (awarding less than the requested maximum damages where plaintiff failed to
allege that defendants were repeat violators and substantial financial gain by defendants).

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Indeed, awards of the maximum amount of enhanced statutory damages are not common in this
district. Kickers Corner, 2014 WL 805731 , at *3.
Thus, the Court will exercise its discretion and award Plaintiff statutory damages in the
amount of $1 ,000 and enhanced damages in the amount of $2,000 for the willful violation of§§
553 and 605 for the purpose of financial gain. See, e.g. , Kickers Corner, 2014 WL 805731 , at *3
(awarding $3 ,000 per violation under each statute); J & J Sports Productions, Inc. v. Sirkco,
LLC, No. 4:12CV763 CDP, 2013 WL 363355, at *2 (E.D. Mo. Jan. 30, 2013) (awarding a total

of $3 ,000 including an enhanced award of $2,000 for willfu~ness).
With regard to Plaintiffs conversion claim, in its Memorandum in Support, Plaintiff fails
to address the conversion claim or support its right to such damages under a conversion theory.
As such, the Court will not award damages on Count III of the Complaint.
Plaintiff also requests attorney' s fees in the amount of $2,500.00 for 10 hours of work at
$250.00 an hour. The Court finds Plaintiffs request to be reasonable and will award Plaintiff
attorney' s fees in the amount of $2,500.00. Likewise, the Court will award court costs and postjudgment interest at the rate set by federal law. J & J Sports Productions, Inc. v. Go Go Invs. ,
LLC, No. 4:12 CV 2231RWS, 2014 WL 961336, at *1 (E.D. Mo. March 12, 2014).

With regard to Plaintiffs Second Motion for Default Judgment against Defendant
Davidra S. Smith, the Court notes that Ms. Smith has failed to file an Answer within the time
mandated by this Court' s Order ofNovember 12, 2015. Therefore, the Court will grant
Plaintiffs motion and order the Clerk of the Court to reinstate the Clerk' s Entry of Default.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs Second Motion for Default Judgment
against Defendant Davidra S. Smith is GRANTED (ECF No. 22). The Clerk of the Court shall
reinstate the Clerk's Entry of Default entered on July 7, 2015.

IT IS FURTHER ORDERED that Plaintiffs Motion for Default Judgment is
GRANTED consistent with this Memorandum and Order (ECF No. 16).
IT IS FURTHER ORDERED that Plaintiff is awarded statutory damages in the amount
of $6,000.00 against Defendant, representing $1,000.00 in statutory damages and $2,000.00 in
enhanced damages for the violation under§ 553 and the violation under§ 605.

IT IS FURTHER ORDERED that Plaintiff is entitled to attorney's fees in the amount
of $2,500.00 and costs in the amount of $570.00. An appropriate judgment will accompany this
Memorandum and Order.
Dated this 18th day of December, 2015.

~//ilfalo
RONNIEL:WHITE
UNITED STATES DISTRICT JUDGE

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