Joe Hand Promotions, Inc. v. Tony R. Harmon et al

Filing 30

OPINION AND ORDER. Plaintiff shall recover from the defendants statutory damages of $3,500, enhanced damages of $2,500, and costs and attorneys fees of $1,400.50. Signed by Magistrate Judge Terence P Kemp on 8/20/2009. (pes1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Joe Hand Promotions, Inc., Plaintiff, v. Tony R. Harmon, et al., Defendants.

: : : : : : Magistrate Judge Kemp Case No. 2:08-cv-604

OPINION AND ORDER On April 24, 2009, the Court granted summary judgment on liability alone against the defendants, Tony R. Harmon and HTK Investments, LLC d/b/a The Skybox Sports Bar & Grill. schedule regarding damages. The Court subsequently entered an agreed order establishing a briefing The parties each submitted a The parties memorandum on damages pursuant to that schedule. right to an evidentiary hearing.

further agreed that oral argument was not needed and waived their Based on the written submissions and the applicable law, the Court will proceed to determine the proper measure of damages in this case. I. The Court has previously determined that the defendants willfully violated 47 U.S.C. §553 and §605 by unlawfully exhibiting certain programming the rights to which were owned by plaintiff Joe Hand Promotions, Inc. The plaintiff concedes that Here, it may recover damages under only one of these sections. the plaintiff has elected to proceed under §605(a). Section 605(c)(3)(C)(i) provides for the recovery of either

actual damages or statutory damages.

The plaintiff has opted for Under that

statutory damages pursuant to §605(c)(3)(C)(i)(II).

provision, the plaintiff may recover damages of not less than $1,000 or more than $10,000, as the Court considers just, for each violation of §605(a). In cases where 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 of subsection (a) of this section." §605(c)(3)(C)(ii). The plaintiff requests statutory damages of $10,000 and enhanced damages of $100,000 against each defendant. of which are mandatory under §605(e)(3)(B)(iii). The plaintiff also seeks its costs and attorney's fees, the recovery Although the Attorney's Affidavit of Costs and Fees attached to the plaintiff's memorandum would support an award of $2,496, the plaintiff has requested that the defendants each bear fees and costs of $700.25. unreasonable. In their memorandum contra, the defendants submit that, under the circumstances, a fine of $110,000 would be They ask, instead, that the Court consider a fine The defendants did not of $1,000 for each of the two violations. II. The circumstances surrounding the first violation on December 29, 2007, were not egregious. The defendants did not Furthermore, advertise the event, did not charge a cover, and did not increase food or drink prices for the evening in question. only twenty-four patrons were in the establishment at the time the program was aired, representing less than half of the number permitted under the applicable fire code. Total gross receipts for food and drink for both December 29, 2007, and December 30, 2 47 U.S.C.

respond to the plaintiff's request for costs and attorney's fees.

2007, were $722.22.

According to the rate card provided by the

plaintiff, the defendants would have been charged either $750 or $875 to have legally broadcast the UHC #79 boxing program, depending on whether the seating capacity was 50, as claimed by the defendants, or 70, as the plaintiffs claim. The Court finds an award of $1,000 statutory damages to be appropriate for the defendants' first violation. to air the program. This amount is greater than what the plaintiff would have charged the defendants Such an award is also similar to what other See J & J Sports courts have allowed based on the total number of patrons in the establishment at the time of the transmission. 2008). Productions, Inc. v. Guzman, 553 F.Supp.2d 195, 198 (E.D.N.Y. Although the plaintiff did not provide the actual payGiven the fact that per-view charge for individual subscribers, assuming a charge of $50, the total cost would have been $1,200. the defendants did not promote the broadcast in advance, it is likely that not all of the twenty-four patrons would have paid to see it. The Court further finds that enhanced damages are not warranted in this instance. To justify enhanced damages, the violation not only must have been willful, but also have been for "purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. §605(c)(3)(C)(ii). "Evidence of willful exhibition for financial gain is insufficient when there was no showing that a cover was charged, that the program was advertised or that food or drink prices were increased, and that establishments were not filled to capacity." Joe Hand Promotions, Inc. v. Easterling, No. 4:08 CV 1259, 2009 WL 1767579 at *6 (N.D. Ohio June 22, 2009) (internal quotation marks and citations omitted). Moreover, defendant Tony Harmon stated in an While satisfying an affidavit that there were no plans to show the fight, but that a customer had requested it to be put on. 3

individual customer may under some circumstances be viewed as an indirect financial advantage, the Court believes that the plaintiff has not demonstrated that indirect financial gain was the motivation behind the defendants' unlawful broadcast of the UHC #79 boxing program. III. The circumstances surrounding the second violation were more flagrant. It is true that the defendants did not advertise the The over-capacity It is reasonable to UFC #82 program, did not charge a cover, and did not increase the prices for food and alcohol for this event. benefitted financially from the broadcast. crowd on March 8, 2008, suggests, however, that the establishment infer that some of the same customers who watched the prior UFC program appeared at the Sky Box expecting to see another UFC event. Further, whether by word of mouth or otherwise, it Total gross bar receipts for the evening of appears that a far larger crowd showed up expecting to view the UFC #82 program. March 8, 2008, more than doubled what were taken in on December 29, 2007, and December 30, 2007. Even for a crowd as large as 150 people, the plaintiff would have charged a commercial establishment only $975 to air the UFC #82 program. Given the different circumstances, however, the This award is equal to the Court finds that statutory damages of $2,500 are appropriate for the defendants' second violation. amount that would have been generated using the defendants' seating capacity of 50 and assuming a charge of $50 per person. The Court also finds that enhanced damages of $2,500 are appropriate for this violation. In making this determination, the Court has considered the fact that this was the defendants' second violation within a matter of months, as well as the fact that the defendants obtained substantial unlawful monetary gains in the form of gross bar receipts. 4 See Guzman, 553 F.Supp.2d at

199 (courts use a variety of factors in determining whether a defendant's willful conduct warrants enhanced damages). The Court also finds defendant Harmon's statement that the second program was turned on merely at the request of an individual customer less credible than his similar explanation regarding the first violation. The Court further finds that the amount of enhanced damages in this case should be sufficient to deter any future violations by the defendants while not so severe as to put the establishment out of business. IV. Based on the foregoing reasons, the Court orders that the plaintiff, Joe Hand Promotions, Inc., shall recover from the defendants, Tony R. Harmon and HTK Investments, LLC d/b/a The Sky Box Sports Bar & Grill, statutory damages of $3,500 pursuant to 47 U.S.C. §605(c)(3)(C)(i)(II), enhanced damages of $2,500 pursuant to §605(c)(3)(C)(ii), and costs and attorney's fees of $1,400.50 pursuant to §605(e)(3)(B)(iii). full amount of damages. The damages award is joint and several - that is, each defendant is liable for the See, e.g., Entm't by J & J Inc. v. Medina, 2002 WL 273306, *3 (S.D.N.Y. Feb. 26, 2002) (citing cases); accord Kingvision Pay-Per-View Ltd. v. Olivares, 2004 WL 744226, *5 (S.D.N.Y. April 5, 2004). The Clerk shall enter judgment in accordance with this order. See Kingvision Pay-Per-View Ltd. v. Autar, 426 F.Supp.2d 59, 64 (E.D.N.Y. 2006).

/s/ Terence P. Kemp United States Magistrate Judge

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