JOE HAND PROMOTIONS, INC. v. CANDELARIA ASSOC. LLC et al

Filing 13

OPINION. Signed by Judge Jose L. Linares on 05/25/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOE HAND PROMOTIONS, INC.,

CIVIL ACTION NO. 16-9 177 (JLL)

Plaintiff,

OPINION

V.

CANDELARIA ASSOC. LLC, d/b/a LOS
GUEROS; and MARIA DELCARMEN
CANDELARIA,
Defendants.

LINARES, District Judge

The plaintiff moves pursuant to Federal Rule of Civil Procedure 55(b)(2) for
default judgment against the defendants. (See dkt. 7 through dkt. 7-7; dkt. 11.)’ The
defendants did not file opposition to the motion. The Court reviewed all of the papers
that the plaintiff submitted in support of the motion, and conducted a telephonic hearing
with the plaintiffs counsel and the plaintiffs president on May 24, 2017. See
Fed.R.Civ.P. 55(b)(2)(B). For the following reasons, the Court will grant the motion in

part.
BACKGROUND
The Court presumes that the plaintiff is familiar with the underlying facts and

The Court will refer to documents by the docket entry numbers and the page
numbers imposed by the Electronic Case Filing System.

procedural history of the action, and thus the Court will only set forth a brief sulmllary
here.
On November 21, 2015, the plaintiff commercially distributed a telecast of a
professional boxing event (hereinafter, “the Program”) by issuing sublicenses for a fee to
New Jersey establishments to show the Program to their patrons. ($ç dkt. 7-7 (the
distribution agreement appointing the plaintiff as the exclusive distributor of the
Program).) For an establishment with a seating capacity of up to 100 people, the cost of
the sublicense would have been $2,200. (See dkt. 7-6 (the plaintiffs rate card).) The
defendants, instead of paying the sublicense fee, intercepted the telecast signal and
showed the Program in their restaurant (hereinafter, “the Restaurant”) for their patrons.
The plaintiffs investigator attests in an affidavit dated almost weeks after the
telecast of the Program, i.e., December 3, 2015, that he saw the Program being shown in
the Restaurant, which had the capacity to accommodate about fifty-five people, on two
televisions in frill view. There was no cover charge to enter the Restaurant, and the
investigator counted at most thirty-seven patrons in the Restaurant during the ten-minute
timespan that he was there. The investigator observed multiple tables and chairs
throughout the Restaurant, and he characterized the Restaurant as rating “Fair.”

(Scc dkt.

7-3.)
The plaintiff brought this action to recover damages pursuant to, among other
things, 47 U.S.C.

§

605. Pursuant to Section 605(e)(3)(C)(i)(II), the plaintiff may

“recover an award of statutory damages.

.

.

in a sum of not less than $1,000 or more

2

than $10,000, as the court considers just.” Also, pursuant to Section 605(e)(3)(C)(ii), the
plaintiff may recover “enhanced damages,” meaning that 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, whether actual or statutory, by an amount of not more than $100,000 for each
violation.” In addition, the plaintiff may recover attorney’s fees and costs pursuant to
Section 605(e)(3)(B)(iii) if it were to prevail in this action.
Default has been entered against the defendants. (See unnumbered docket entry
following dkt. 6.) The plaintiff now moves for the entry of default judgment in its favor.
The Plaintiff seeks relief pursuant to only Section 605 in the amounts of: (1) $5,000 in
statutory damages; (2) $20,000 in enhanced damages; (3) $540 in costs, comprised of
$400 for filing a complaint and $140 for effectuating service on the defendants; and
(4) $1,945 in attorney’s fees. The plaintiff also seeks an award of post-judgment interes
t,
and seeks to enjoin the defendants from unlawfully intercepting and exhibiting any of its
programs in the future.
The Court possesses subject-matter jurisdiction over this action pursuant to
47 U.S.C.

§

605(e), which provides for a private right of action. See 2$ U.S.C.

§

1331.

The Court also has personal jurisdiction over the defendants. See fed.R.Civ.P. 4(e),
(4)(h), 4(k).

ANALYSIS
To recover damages pursuant to Section 605, the plaintiff must demonstrate that

3

the defendants intercepted the Program without authorization, and that they showed the
Program to others. See J & J Sports Productions, Inc. v. Castro, No. 14-557, 2015 WL
389381, at *3 (D.N.J. Jan. 28, 2015).
The plaintiff has submitted a copy of the distribution agreement in order to
demonstrate that it had the exclusive right to distribute and to sublicense the Program,
and has shown that it did not enter into a sublicense agreement with the defendants. As a
result, the plaintiff has established that the defendants were showing the Program to their
patrons even though the defendants were not authorized to intercept the Program, and that
the interception was willful. Furthermore, the plaintiffs investigator personally
witnessed that the defendants were showing the Program to their patrons in the
Restaurant, and that there were thirty-seven patrons in the Restaurant, thereby
establishing that the defendants were showing the Program to others for commercial gain.
See Joe Hand Promotions, Inc. v. Waidron, No. 11-849, 2013 WL 1007398, at *3 (D.N.J.
Mar. 13, 2013) (finding that a plaintiff under Section 605 demonstrated entitlement to
defaultjudgrnent). The Court may therefore award enhanced damages, in addition to
statutory damages, because the plaintiff has established a cause of action pursuant to
Section 605.
The defendants have not responded to either the complaint or the motion, and thus
they have waived the opportunity to put forth evidence or facts containing information
that would provide a basis for a meritorious defense. Sçç HICA Educ. Loan Corp. v.
Surikov, No. 14-1045, 2015 WL 273656, at *3 (D.N.J. Jan. 22, 2015). In addition, the

4

plaintiff has no other way to recover the unpaid sublicense fee or for any other harm
caused by the defendants without the entry of a default judgment, and the plaintiff would
be prejudiced if a default judgment is not entered. See Int’ 1 Union of Painters v. Andrews
Window Servs. LLC, No. 15-3583, 2016 WL 3234516, at *3 (D.N.J. June 7, 2016).
Furthermore, the Court may infer the defendants’ culpability here, because they have not
provided any explanation for their failure to respond. See Waidron, 2013 WL 1007398,
at *4 Thus, the Court concludes that the entry of a default judgment is warranted.

I.

Statutory Damages

The plaintiff seeks $5,000 in statutory damages. However, the award falling under
the heading of statutory damages should approximate the actual damages suffered by the
plaintiff, i.e., the unpaid sublicense fee for an establishment to show the Program.

$

Premium Sports, Inc. v. Silva, No. 15-1071, 2016 WL 223702, at *2 (D.N.J. Jan. 19,
2016). Because the Restaurant could accommodate up to fifty-five patrons, the
defendants would have been required to pay a sublicense fee of $2,200. Therefore, the
Court awards the plaintiff $2,200 in statutory damages.

II.

Enhanced Damages

The plaintiff also seeks $20,000 in enhanced damages, arguing that this amount
would achieve the goals of restitution and deterrence. However, the plaintiff does not
argue that the defendants advertised their broadcast of the Program, charged a cover
charge or charged a premium for food and drinks during the Program, or are repeat

5

offenders of this type of unauthorized conduct. Furthermore, the plaintiff has not
submitted a menu or a price list for the types of food and drinks that were served at the
Restaurant, and the plaintiffs investigator rated the Restaurant as being merely fair, and
thus the Court cannot determine whether the defendants reaped substantial profits from
the unauthorized exhibition of the Program. The plaintiffs investigator additionally
asserts that his head count revealed only thirty-seven patrons within the Restaurant.
Thus, the Court in its discretion will award enhanced damages of $2,200, which is
equal to the cost of the sublicense fee, in order to provide for restitution and deterrence.
See Joe Hand Promotions, Inc. v. Cerreto, No. 13-7647, 2014 WL 4612101, at *5_6
(D.N.J. Sept. 15, 2014) (awarding the same for the enhanced damages component).

III.

Costs and Attorney’s fees
The plaintiff seeks $1,945 in attorney’s fees and $540 in costs, and has provided

the Court with a full and proper explanation for these amounts. (S.çç dkt. 11.) The Court
is satisfied that these costs and fees are reasonable, and awards the full amount sought by
the plaintiff.

CONCLUSION
For the aforementioned reasons, the Court grants the plaintiffs motion for default
judgment in part. The Court will enter an appropriate order and judgment against the
defendants in the total amount of $6,885, which represents $2,200 in statutory damages,

6

$2,000 in enhanced damages, $1,945 in attorney’s fees, and $540 in costs. The Court
also awards postjudgrnent interest, and enjoins the defendants from unlawfully
intercepting and exhibiting any of its programs in the future

States District Judge

Dated: May

25th

,2017

7