JOE HAND PROMOTIONS, INC. v. LAWHON

Filing 17

MEMORANDUM AND ORDER re 12 MOTION for Default Judgment as to filed by JOE HAND PROMOTIONS, INC. IT IS ORDERED that Plaintiff Joe Hand Promotions, Inc.'s Motion for Default Judgment is GRANTED IN PART AND DENIED IN PART and that default judgment is entered against Defendant Juliana L. Lawhon d/b/a Local House Bar in Plaintiff Joe Hand Promotions, Ins.'s flavor in the amount of $6,810.00. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
JULIANA L. LAWHON, d/b/a
LOCAL HOUSE BAR,
Defendant.

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1:14CV459

MEMORANDUM ORDER
This matter is before the Court on Plaintiff Joe Hand Promotions,
Inc.’s (“Joe Hand”) Motion for Default Judgment (“Motion”) pursuant to
Rule 55 of the Federal Rules of Civil Procedure [Doc. #12]. Joe Hand filed
this action against Defendant Juliana L. Lawhon d/b/a Local House Bar
(“Lawhon” or “Defendant”) alleging violations of 47 U.S.C. §§ 553 and 605
for unlawfully exhibiting UFC 169: Barao v. Faber II. [Doc. #1.] Although
Lawhon was granted an extension of time within which to answer or
otherwise respond to the Complaint [Text Order July 21, 2014], she failed
to do so and the Clerk entered default against Defendant [Doc. #11]. Joe
Hand filed the present Motion, and a hearing was held on January 7, 2016.
[See Order, Doc. #16 (scheduling hearing and ordering counsel to take
certain actions)]. After arguments, the Court granted the Motion in part and

instructed that a written order would be forthcoming. [Doc. Entry Jan. 7,
2016.]
As a result of her default, Lawhon admitted Joe Hand’s well-pleaded
factual allegations. See Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001). Those well-pleaded factual allegations sufficiently
state a claim for relief under both 47 U.S.C. §§ 553,1 605.2 See J & J
Sports Prods., Inc. v. Brazilian Paradise, LLC, 789 F. Supp. 2d 669, 673-77
(D.S.C. 2011) (analyzing allegations to “ensure the Complaint sets forth
claims under . . . 47 U.S.C. § 605 before entering default judgment”).
Although Joe Hand elected to pursue statutory damages under section 605,
its auditor attested that he “did not observe a satellite dish” outside or inside
the Local House Bar. [Jonathan Aguilar Aff. Doc. #13-2.] Were Defendant
to have unlawfully intercepted a cable, and not a satellite, transmission,
section 605 would not apply. Nevertheless, the damages awarded in this

1
47 U.S.C. § 553 prohibits unauthorized reception of cable service. A plaintiff may elect
actual or statutory damages. The statutory damages range from $250 to $10,000 “as the
court considers just[,]” and the court “may” award full costs, including reasonable
attorneys’ fees. 47 U.S.C. § 553(c)(2), (3)(A). If a party willfully violates section 553, the
court may increase damages no more than an additional $50,000. 47 U.S.C. §
553(c)(3)(B).
2
47 U.S.C. § 605 prohibits unauthorized reception of satellite transmissions. A plaintiff
may elect actual or statutory damages. The statutory damages range from $1,000 to
$10,000 “as the court considers just[,]” and the court “shall” award full costs, including
reasonable attorneys’ fees. 47 U.S.C. § 605(e)(3)(B), (C)(i). If a party willfully violates
section 605, the court may increase damages no more than an additional $100,000. 47
U.S.C. § 605(e)(3)(C)(ii). 

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case fall within the parameters of section 553, as well. See Brazilian
Paradise, LLC, 789 F. Supp. 2d at 674 (recognizing that section 605 would
be inapplicable if the defendant intercepted a cable broadcast, but noting
that “[i]n any event, in light of the . . . damages, the distinction is without a
difference in this case”).
Counsel for Joe Hand presented no argument as to the appropriate
method for determining what amount within the statutory range to award as
damages. See, e.g., J & J Sports Prods., Inc. v. Brutti’s LLC, No.
1:14CV269, 2014 WL 7363823, *7-8 (E.D. Va. Dec. 23, 2014) (describing
a per patron rate and a flat fee based on the unpaid sublicense fee according
to the establishment’s maximum occupancy rate). Because Joe Hand has
not substantiated Mr. Aguilar’s estimation of the Local House Bar’s
maximum occupancy [see Doc. #13-2], the per patron rate is the appropriate
method for calculating statutory damages here. See Brutti’s, LLC, 2014 WL
7363823, at *8 (declining to use the maximum occupancy number stated
by the investigator because it was unclear whether this was based on his
guess or an occupancy sign). However, Mr. Aguilar’s three head counts of
ten, fifteen, and seven “people” in the establishment at each particular time
are also problematic because they may include the two bartenders who
would not be patrons, as well as himself. Taking that into account, the
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Court calculates statutory damages based on twelve patrons (fifteen
“people” minus the two bartenders and Mr. Aguilar) at a rate of $100,
which is appropriate in this case considering the range of rates used in other
cases, for damages in the amount of $1,200. See Brutti’s, LLC, 2014 WL
7363823, at *7, *7 n. 4 (noting that the accepted per person rate in the
Eastern District of Virginia is $100 and citing J & J Sports Prods., Inc. v. El
Tropicabana, No. 3:12CV800, 2013 WL 3270563, at *3 (E.D. Va. June 26,
2013) as providing the range of rates elsewhere).
Because “signals do not descramble spontaneously, nor do television
sets connect themselves to cable distribution systems,” Joe Hand is also
entitled to enhanced statutory damages because of Defendant’s willful
violation of the law. Tropicabana, 2013 WL 3270563, at *3 (finding that
the defendant acted willfully and citing Time Warner Cable v. Googies
Luncheonette, 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999)); see also Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 127, 105 S. Ct. 613, 624
(1985) (recognizing willfulness in a civil case as “a disregard for the
governing statute and an indifference to its requirements”); [Joe Hand, Jr.
Aff. ¶ 9, Doc. #13-1]. Other than Defendant’s willful conduct, Joe Hand
has neither alleged nor provided evidence of any other aggravating factor.
See J & J Sports Prods., Inc. v. Centro Celvesera La Zaona, LLC, No. 5:114 

CV-00069-BR, 2011 WL 5191576, at *2 (E.D.N.C. Nov. 1, 2011)
(providing factors for determining enhanced damages). In accordance, to
deter Lawhon from future violations, Joe Hand is awarded $3,600 in
enhanced damages, an amount that is treble the awarded statutory
damages. See, e.g., Joe Hand Promotions, Inc. v. Upstate Recreation, No.
6:13-2467-TMC, 2015 WL 685461, at *9 (D.S.C. Feb. 18, 2015)
(awarding as enhanced damages 2.5 times the statutory damages and citing
cases awarding three times and two times the statutory awards); J & J
Sports Prods., Inc. v. Romenski, 845 F. Supp. 2d 703, 708 (W.D.N.C.
2012) (awarding total damages equal to treble the sublicense fee).
Although counsel for Joe Hand was instructed to provide support at
the hearing for the reasonableness of his rates in accordance with Robinson
v. Equifax, 560 F.3d 235 (4th Cir. 2008), he did not. However, because
counsel has likely spent more than the six hours he forecasted in his
Declaration [see Doc. #14] on the matter, the Court awards the requested
$1,500 in attorney’s fees, noting that this reflects an hourly rate less than
that proposed by counsel. Joe Hand is also awarded $510 in costs, the
$400 filing fee and $110 to effectuate service, which are found to be
reasonable.

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For the reasons stated herein, Joe Hand is entitled to a total of $4,800
in statutory damages, $1,500 in attorney’s fees, and $510 in costs.
IT IS HEREBY ORDERED that Plaintiff Joe Hand Promotions, Inc.’s
Motion for Default Judgment is GRANTED IN PART AND DENIED IN PART,
and that default judgment is entered against Defendant Juliana L. Lawhon
d/b/a Local House Bar in Plaintiff Joe Hand Promotions, Inc.’s favor in the
amount of $6,810.00.
This the 13th day of January, 2016.

/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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