J & J Sports Productions, Inc. v. RPM Management Company, LLC et al

Filing 17

ORDER granting 16 Motion for Default Judgment. The Court ORDERS that judgment be entered against Defendants RPM and Mark Lokar in the total amount of $61,650.00. Signed by Judge Algenon L. Marbley on 3/4/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,
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v.
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RPM MANAGEMENT COMPANY, LLC., :
et al.
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Defendants.
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Case No. 2:12-CV-214
JUDGE ALGENON L. MARBLEY

Magistrate Judge E. P. Deavers

OPINION & ORDER
This matter is before the Court on the Plaintiff’s Motion for Default Judgment (Dkt. 16).
Plaintiff is a distributor of sports and entertainment programming. Defendant RPM Management
Company, LLC. (“RPM”) is an alter ego Ozone Sports Bar, located in Worthington, Ohio.
Defendant Lokar is also an alter ego of Ozone Sports Bar. On March 13, 2010, without
Plaintiff’s permission, Defendants exhibited a boxing match to which Plaintiff retained the
commercial exhibition license. Defendants intercepted the transmission of the boxing match,
though Plaintiff adduces no evidence to allow the Court to determine whether Defendants
intercepted the satellite signal or a line cable. Plaintiff’s affidavits and exhibits demonstrate that
Defendants intercepted and exhibited the program “willfully and for purposes of direct or
indirect commercial advantage or private financial gain.”
Plaintiff filed Complaint against Defendants in this Court on March 12, 2012. (Dkt. 1)
Complaint sought to recover under both 47 U.S.C. § 605 and 47 U.S.C. § 553. Defendant
RPM’s Summons was executed on March 28, 2012. (Dkt. 6) Defendant Mark Lokar’s
Summons was subsequently executed on May 29, 2012. (Dkt. 13) As of this date, Defendants
have not responded, nor entered any appearance before this Court in connection with this matter.

The time to respond has long since elapsed, as the deadline for Defendants’ initial answer was
April 2, 2012.
On June 14, 2012, the Clerk entered default against Defendants (Dkt. 15). Plaintiff then
moved for default judgment under Rule 55(b). Plaintiff adduced uncontested evidence of the
Defendants’ violation. The nature of the offense, intercepting a pay-per-view program and
exhibiting it to the public, creates numerous uncertainties which frustrate attempts to calculate
actual damages. For that reason, both 47 U.S.C. § 605 and 47 U.S.C. § 553 allow the aggrieved
party to elect a statutory damages remedy, which Plaintiff has elected. The sole question is
whether Plaintiff, as it contends, should be awarded damages under both 47 U.S.C. § 605 and 47
U.S.C. § 553.
This Court has already decided that question in another case against Defendant RPM. In
Joe Hand Promotions, Inc. v. RPM Management Co., LLC., 2:09-CV-553, 2011 WL 1043560
(S.D. Ohio Mar. 18, 2011), the Court held that “[w]hen a defendant is liable under both 47
U.S.C. § 605 and 47 U.S.C. § 553, [] the plaintiff may recover under only one section.” In that
case, as in the instant case, the evidence did not allow the court to determine “whether
[d]efendant appropriated [p]laintiff’s signal through a satellite device or a cable service.” Id.
This case is indistinguishable, so it is appropriate to “impose the lesser statutory violation
pursuant to 47 U.S.C. § 553, along with reasonable attorneys’ fees.” Id.
In Joe Hand Promotions this Court declined to impose damages up to the statutory limit.
Since Defendants have engaged in the same tortious conduct yet again, and this time failed to
enter any appearance before the Court, it is clear that the penalty previously imposed was
insufficient to deter Defendants’ conduct. Thus, the Court awards Plaintiff the statutory
maximum of $10,000.00 per violation for the one violation alleged.

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47 U.S.C. § 553(b)(3)(A)(ii). Additionally, the Court awards Plaintiff maximum enhanced
damages of $50,000.00 in view of the uncontroverted evidence that the violation was committed
“willfully and for purposes of direct or indirect commercial advantage or private financial gain.”
47 U.S.C. § 553(b)(3)(B). The Court also awards Plaintiff reasonable costs and attorneys’ fees
of $1,650.00.
For the foregoing reasons, Plaintiff’s Motion for Default Judgment is, hereby,
GRANTED. The Court ORDERS that judgment be entered against Defendants RPM and Mark
Lokar in the total amount of $61,650.00.
IT IS SO ORDERED.
s/ Algenon L. Marbley
Algenon L. Marbley
United States District Court Judge

DATED: March 4, 2013

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