Joe Hand Promotions, Inc. v. Meunier et al
DECISION AND ORDERED, that Plaintiffs Motion for Default Judgment (Dkt. No. 13) is GRANTED; and it is further ORDERED, that judgment of $8,242.50 in damages and $590 in costs shall enter in favor of Joe Hand Promotions, Inc. and against Donald J. Meunier and 3M 2P, Inc., jointly and severally. Signed by Senior Judge Lawrence E. Kahn on January 5, 2017. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOE HAND PROMOTIONS, INC.,
DONALD J. MEUNIER, et al.,
DECISION AND ORDER
Plaintiff Joe Hand Promotions, Inc. commenced this action on November 15, 2015,
alleging that Defendants 3M 2P, Inc. d/b/a Rio Music Theater a/k/a Rio (“3M 2P”) and Donald J.
Meunier, individually and as an officer, director, shareholder and/or principal of 3M 2P, illegally
obtained and exhibited “UFC 173 Barao v. Dillashaw” (“UFC 173”) on May 24, 2014, in
violation of 47 U.S.C. §§ 605 and 553. Dkt. No. 1 (“Complaint”). Plaintiff now files a motion for
default judgment pursuant to Federal Rule of Civil Procedure 55(b). Dkt. No. 13 (“Motion”). For
the following reasons, the Motion is granted.
Plaintiff is a distributor of sports and entertainment programming to commercial
establishments. Dkt. No. 13-1 (“Memorandum”) at 2. After entering into an agreement with the
promoter of the event, Plaintiff was given exclusive rights to license the exhibition of UFC 173
to commercial establishments, such as restaurants, bars, and casinos. Compl. ¶ 14. In an effort to
combat piracy of programs such as UFC 173, Plaintiff hired auditors to visit locations that had
not contracted with Plaintiff to broadcast the event. Dkt. No. 13-2 (“Joe Hand Affidavit”) ¶ 6.
On May 24, 2014, an auditor hired by Plaintiff entered Defendants’ establishment after
paying a ten-dollar cover charge. Dkt. No. 13-4 (“Piracy Affidavit”) at 1. Thereafter, the auditor
witnessed UFC 173 being displayed on one large television to between fifty and seventy-five
patrons. Id. at 1–2. Additionally, Plaintiff submitted screenshots of Defendants’ social media
page, which advertised the broadcast of UFC 173 and other similar UFC events to which Plaintiff
had exclusive rights. See Dkt. No. 13-3 (“Exhibit A”). Defendants did not have a contract with
Plaintiff to broadcast the event, and therefore Plaintiff alleges unlawful interception, receipt, and
exhibition of UFC 173. Compl. ¶ 17. Plaintiff also asserts that there is no means by which
Defendants could have obtained UFC 173 accidentally, as some overt action is required to
circumvent Plaintiff’s licensing structure. See id. ¶ 18; Mem. at 3–4. Finally, Plaintiff alleges that
Meunier both had the authority to supervise 3M 2P on the night of UFC 173, and that he stood to
financially benefit from showing the event. Compl. ¶ 7.
After unsuccessful attempts by Plaintiff to resolve the matter at hand informally, Plaintiff
initiated this action, seeking damages under 47 U.S.C. §§ 605 or 553. Compl. ¶ 30. Defendants
did not file a responsive pleading, and on January 26, 2016, the Clerk filed an entry of default
against Defendants at Plaintiff’s request. See Dkt. Nos. 8, 9. On February 26, 2016, Plaintiff filed
a motion for default judgment. Dkt. No. 11 (“First Default Motion”). In a June 30, 2016 Decision
and Order, the Court denied the First Default Motion because Plaintiff failed to comply with
Local Rule 55.2(b), which requires the moving party to submit a copy of the pleading to which
no response was made. Dkt. No. 12 (“June Order”) at 4. Plaintiff now files a second motion for a
default judgment and again seeks damages and costs totaling $60,590.00. Mem. at 6–12.
“Federal Rule of Civil Procedure 55 provides a two-step process that the Court must
follow before it may enter a default judgment against a defendant.” Elec. Creations Corp. v.
Gigahertz, Inc., No. 12-CV-1423, 2013 WL 3229125, at *3 (N.D.N.Y. June 25, 2013) (quoting
Robertson v. Doe, No. 05-CV-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008)). “First,
under Rule 55(a), when a party fails to plead or otherwise defend . . . the clerk must enter the
party’s default.” Id. Second, under Federal Rule of Civil Procedure 55(b)(2), “the party seeking
default judgment is required to present its application for entry of judgment to the court.” Id.
“When a default is entered, the defendant is deemed to have admitted all of the wellpleaded factual allegations in the complaint pertaining to liability.” Bravado Int’l Grp. Merch.
Servs., Inc. v. Ninna, Inc., 655 F. Supp. 2d 177, 188 (E.D.N.Y. 2009) (citing Greyhound
Exhibitgroup, Inc. v. E.L. U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). “While a default
judgment constitutes an admission of liability, the quantum of damages remains to be established
by proof unless the amount is liquidated or susceptible of mathematical computation.” Flaks v.
Koegel, 504 F.2d 702, 707 (2d Cir. 1974); see also Bravado Int’l, 655 F. Supp. 2d at 189.
“[E]ven upon default, a court may not rubber-stamp the non-defaulting party’s damages
calculation, but rather must ensure that there is a basis for the damages that are sought.”
Robertson, 2008 WL 2519894, at *3. “The burden is on the plaintiff to establish its entitlement to
recovery.” Bravado Int’l, 655 F. Supp. 2d at 189. “While ‘the court must ensure that there is a
basis for the damages specified in a default judgment, it may, but need not, make the
determination through a hearing.’” Id. at 190.
Under Local Rule 55.2(b), the moving party must submit with its motion for default
judgment: (1) a clerk’s certificate of entry of default, (2) a proposed form of default judgment,
(3) a copy of the pleading to which no response has been made, and (4) an affidavit. L.R. 55.2(b).
The affidavit must set forth that: (1) the party against whom judgment is sought is not an infant,
incompetent, or in military service; (2) the party against whom judgment is sought has defaulted
in appearance in the action; (3) service was properly effected under Federal Rule of Civil
Procedure 4; (4) the amount sought is justly due and owing, and no part has been paid; and (5)
the disbursements sought to be taxed have been made in the action or will necessarily be made or
incurred. L.R. 55.2(a).
The Court’s June Order denied Plaintiff’s First Default Motion because it failed to
comply with the Local Rules. In particular, the First Default Motion did not include a copy of the
Complaint, as required by Local Rule 55.2(b). First Default Mot. Plaintiff’s current Motion was
filed along with a copy of the Complaint, and the Motion meets all of the other requirements
imposed by Local Rule 55.2(b). Mot. Additionally, Plaintiff’s attorney’s declaration contains all
of the information required by Local Rule 55.2(a). Dkt. No. 13-7 (“Jekielek Declaration”).
Accordingly, the Court now considers the substance of Plaintiff’s Motion.
In the motion for default judgment, Plaintiff seeks damages under 47 U.S.C. § 605,1
which provides that “no person not being authorized by the sender shall intercept any radio
The Second Circuit has held that when a defendant is liable under both §§ 605 and 553,
as Plaintiff alleges here, a plaintiff may recover damages under only one of the statutes. Int’l
Cablevision, Inc. v. Sykes, 75 F.3d 123, 130 (2d Cir. 1996). As § 605 provides for greater
recovery than § 553, Joe Hand Promotions, Inc. v. Trenchard, No. 12-CV-1099, 2014 WL
854537, at *3 (D. Conn. Mar. 3, 2014), Plaintiff has elected to seek damages pursuant to § 605,
Mem. at 5.
communication and divulge or publish the . . . contents . . . of such intercepted communication to
any person.” 47 U.S.C. § 605(a). “Section 605(a) has been held to apply to the interception of
cable communications originating as a satellite or radio transmission.” Innovative Sports Mktg.,
Inc. v. Aquarius Fuente De Soda, Inc., No. 07-CV-2561, 2009 WL 3173968, at *5 (E.D.N.Y.
Sept. 30, 2009). Plaintiff has adequately alleged that Defendants violated § 605(a) in this case.
Where a violation of § 605 has occurred, a plaintiff is entitled to collect statutory damages and, if
“the violation is ‘willful’ and ‘for purposes of . . . commercial advantage,’ a court may award
what is commonly referred to ‘as enhanced damages.’” Joe Hand Promotions, Inc. v. Rodriguez,
No. 06-CV-6709, 2008 WL 1990777, at *3 (S.D.N.Y. May 6, 2008) (quoting 47 U.S.C. §
A. Statutory Damages
Section 605(e) authorizes statutory damages of no less than $1,000 and no more than
$10,000 for each violation of § 605(a), and it grants courts the authority to award damages within
that range “as the court considers just.” 42 U.S.C. § 605(e)(3)(C)(i)(II). “In exercising such
discretion, courts typically balance the financial harm suffered by the plaintiff with the financial
burden on the defendants of a hefty damages award.” Trenchard, 2014 WL 854537, at *3.
Plaintiffs request the maximum statutory damages of $10,000, Mem. at 6, but courts in
this circuit rarely grant the maximum allowable damages, Trenchard, 2014 WL 854537, at *3.
Instead, several courts have used the following formula for calculating damages: they multiply
the number of patrons who viewed the event by $54.95, which has been used as the estimated
residential fee for a pay-per-view broadcast. Joe Hand Promotions, Inc. v. Blais, No.
11-CV-1214, 2013 WL 5447391, at *4 (E.D.N.Y. Sept. 30, 2013) (collecting cases). As Plaintiff
alleges that at least fifty patrons were present for UFC 173, Piracy Aff. at 1–2, the Court
multiplies that number by $54.95 to calculate statutory damages, which amount to $2,747.50.
This amount is sufficient to compensate Plaintiff for its lost revenue—Plaintiff would have
charged Defendant $1,600 to purchase and display UFC 173 for its patrons, Dkt. No. 13-6 (“Rate
Card”) —and it is in line with the statutory damages that other courts have awarded under similar
circumstances, Joe Hand Promotions, Inc. v. Liriano, No. 06-CV-2940, WL 2078764, at *1
(E.D.N.Y. July 18, 2007).
B. Enhanced Damages
Under § 605(e), courts also have the discretion to award up to $100,000 in enhanced
damages where the violation of § 605(a) was “committed willfully and for the purposes of direct
or indirect commercial advantage or private financial gain.” 42 U.S.C. § 605(e)(3)(C)(ii).
Plaintiff has alleged that Defendants willfully violated the statute, Compl. ¶ 17, and Plaintiff’s
description of the potential methods Defendants must have used to intercept and broadcast UFC
173, Dkt. No. 13-2 (“Joe Hand Affidavit”) ¶ 9, supports the allegation of willfulness. Other
district courts in this circuit have frequently granted enhanced damages in similar cases. Joe
Hand Promotions, Inc. v. Wall St. Rest., LLC, No. 14-CV-44267, 2015 WL 2084637, at *5
(E.D.N.Y. May 4, 2015) (collecting cases). Therefore, the Court finds that enhanced damages are
appropriate in this case.
In order to determine the proper amount of enhanced damages in such cases, courts
generally consider the following factors: “allegations of: (1) repeated violations over an extended
period of time; (2) substantial unlawful monetary gains; (3) significant actual damages to
plaintiff; (4) defendant’s advertising for the intended broadcast of the event; and (5) defendant’s
charging a cover charge or charging premiums for food and drinks.” Trenchard, 2014 WL
854537, at *4. Here, Defendants benefitted from a ten dollar cover charge, Piracy Aff. at 1, they
advertised for the event, Dkt. No. 13-3 (“Advertisements”), and they received substantial
monetary gains by not paying the required licensing fee and presumably by selling drinks to
patrons watching the event.
Under similar circumstances, other courts in this circuit have assessed enhanced damages
equal to two times the amount of statutory damages, which effectively amounts to an award of
treble damages. See Wall St. Rest., LLC, 2015 WL 2084637, at *6 (trebling the statutory
damages where the defendant benefited from a twelve dollar cover charge, but there was no
evidence that they advertised for the event); Joe Hand Promotions, Inc. v. La Nortena Rest. Inc.,
No. 10-CV-4965, 2011 WL 1594827, at *5 (E.D.N.Y. Mar. 28, 2011) (trebling the statutory
damages where defendants advertised and imposed a cover charge for the event, but there was no
evidence of repeated violations of § 605), adopted by 2011 WL 1598945 (E.D.N.Y. Apr. 27
2011) . In this case, the Court finds that an enhanced damages award of twice the statutory
damages is sufficient to compensate Plaintiff and to deter Defendants from future violations.
C. Attorneys’ Fees and Costs
Plaintiff is entitled to recover costs and reasonable attorneys’ fees. 47 U.S.C.
§ 605(e)(3)(B)(iii). Plaintiff seeks to recover costs of $590, Mem. at 12, consisting of $400 to file
the action and $190 to effectuate service, Jekielek Aff. ¶ 9. Plaintiff does not, however, include
an estimate of attorneys’ fees, instead requesting permission to file a separate fee affidavit. Mem.
at 5 n.1. The Court finds that Plaintiff is entitled to $590 in costs, and that it may file a separate
motion for attorneys’ fees within fourteen days of the entry of judgment. See Fed. R. Civ. P.
Plaintiff seeks to hold Meunier individually liable for 3M 2P’s violation of § 605. In
order to hold a defendant individually liable under § 605, the plaintiff must “show that she had
the ‘right and ability to supervise’ the infringing acitivities and that she had ‘an obvious and
direct financial interest’ in the pirated broadcast.” Trenchard, 2014 WL 854537, at *2 (quoting
Kingvision Pay-Per-View Ltd. v. Olivares, No. 02-CV-6588, 2004 WL 74426, at *5 (S.D.N.Y.
Apr. 5, 2004)). The Complaint alleges, upon information and belief, that Meunier was one of
“the individuals with supervisory capacity and control over the activities occurring within the
establishment on May 24, 2014,” and that he “received a financial benefit from the operations of
3M 2P, INC.” Compl. ¶¶ 7–8. Because Meunier defaulted in this action, Plaintiff’s allegations
are deemed admitted. Blais, 2013 WL 5447391, at *3 (citing Fong v. United States, 300 F.2d
400, 409 (9th Cir. 1962)). Accordingly, the Court concludes that Meunier may be held jointly and
severally liable under § 605.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion for Default Judgment (Dkt. No. 13) is GRANTED;
and it is further
ORDERED, that judgment of $8,242.50 in damages and $590 in costs shall enter in
favor of Joe Hand Promotions, Inc. and against Donald J. Meunier and 3M 2P, Inc., jointly and
severally; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
January 05, 2017
Albany, New York
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