J & J Sports Productions, Inc. v. Chiang et al

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for default judgment 29 is granted in part only to the extent set out in this order and is denied in all other respects. A judgment will be entered in Plaintiffs favor in the amount of $43,141.90. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 10/4/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
J & J SPORTS PRODUCTION, LLC, )
)
Plaintiff,
)
)
v.
)
)
GINGER ASIAN BISTRO, INC.,
)
d/b/a GINGER BISTRO, et al.,
)
)
Defendants,
)

Case No. 4:15 CV 1532 RWS

MEMORANDUM AND ORDER
This matter is before me on Plaintiff J&J Sports Productions, Inc.=s motion for
a default judgment against Defendant Ginger Asian Bistro, Inc., d/b/a Ginger Bistro.
J&J Sports paid for and was thereafter granted the exclusive nationwide television
distribution rights to: AThe One Floyd Mayweather, Jr. v. Saul Alvarez, WBC Light
Middleweight Championship Fight Program@ telecast on September 14, 2013 and
the AFloyd Mayweather, Jr. v. Robert Guerrera, WBC Welterweight Championship
Fight Program@ telecast on May 4, 2013. J&J Sports sold the rights to publically
exhibit these broadcasts to various public establishments (eg. hotels, racetracks,
casinos, bars, taverns, restaurants, social clubs, etc.)

Some establishments

illegally intercept these types of broadcast and show it to their patrons without
obtaining a license to do so from J&J Sports.
The present lawsuit alleges that Defendant Ginger Asian Bistro, Inc. illegally

intercepted the broadcasts and played them to patrons at the Ginger Bistro in
University City. Missouri. J&J Sports asserts claims under two alternative federal
statutes and for state law conversion.
J&J Sports asserts a claim for each illegally intercepted broadcast at issue
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).
In addition, J&J Sports asserts a claim for each broadcast 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
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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).
J&J Sports also asserts state law conversion claims based on the two
broadcasts. According to an affidavit submitted by the president of J&J Sports, the
fee it would have collected from Ginger Bistro based on its occupancy limit was
$4,200 per event for a total of $8,400.
Defendant Ginger Asian Bistro, Inc. has been served with this lawsuit. On
July 28, 2016, the Clerk of Court entered a default against the Ginger Asian Bistro,
Inc. because it failed to file an answer or other responsive pleading.
J&J Sports filed a motion for a default judgment. In its motion J&J Sports
seeks a total of $340,000 plus $641.90 in Acourt costs.@ J&J Sports also prays for
$2,500.00 in attorney’s fees. In requesting a judgment of $340,000, J&J Sports
seeks to collect statutory damages under both § 605 and under § 553. J&J Sports
can recover either under ' 605 if Ginger Asian Bistro intercepted the broadcast from
a satellite or under ' 553 if Ginger Asian Bistro intercepted the broadcast from a
cable service. J&J Sports cannot recover damages under both statutes.
J&J Sports’ investigator stated in her affidavit, regarding the May 4, 2013
claim, that Ginger Bistro had a maximum occupancy of 100 patrons. She reported
that approximately fifteen patrons were in the establishment during the forty minutes
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that she was there. A different investigator visited the Ginger Bistro on September
14, 2013. She reported that that Ginger Bistro had a maximum occupancy of 200
patrons and up to 115 patrons were in the establishment during the twenty-seven
minutes she was there.1
Neither the complaint nor any other filings in this matter indicate which
method Ginger Asian Bistro used to intercept the broadcast. I will therefore grant
J&J Sports a default judgment under ' 605. J&J Sports’ licensing fee for each
telecast would have been $4,200 for a total of $8,400. Based on that fee I will grant
a judgment for statutory damages for each violation (Counts I and V) in the amount
of $10,000 under ' 605(e)(3)(C)(i)(II) for a total of $20,000. In order to deter
future infractions I will also award an additional $10,000.00 in enhanced statutory
damages under ' 605(e)(3)(C)(ii) for each violation for a total of $20,000. I will
also grant J&J Sports their costs in the amount of $641.90 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. 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 $43,141.90.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff=s motion for default judgment
1 A second investigator was present on September 14, 2103 at around the same time of the evening for approximately
thirty minutes. She submitted an affidavit which stated the capacity of Ginger Bistro was 150 patrons and that up to
75 patrons were present. A third investigator submitted an affidavit for the September 14, 2013 event. He was there
at approximately the same time as the other investigators. He states that he counted approximately 125 people at
Ginger Bistro.
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[#29] is granted in part only to the extent set out above and is denied in all other
respects. A judgment will be entered in Plaintiff’s favor in the amount of
$43,141.90.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 4th day of October, 2016.

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