J & J Sports Productions, Inc. v. Samano

Filing 14

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 12 Motion for Default Judgment (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
CESAR SAMANO, individually and d/b/a
BILLAR EL RODEO,
Defendant.

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Case No. 13-CV-721-GKF-FHM

OPINION AND ORDER
Before the court is the Motion for Default Judgment against defendant Cesar Samano,
individually and d/b/a Billar el Rodeo, filed by plaintiff J & J Sports Productions, Inc. [Dkt.
#12].
Plaintiff filed this action pursuant to the Communications Act of 1934, 47 U.S.C. § 605,
et seq., and the Cable and Television Consumer Protection and Competition Act of 1992, 47
U.S.C. § 553, et seq. Plaintiff alleges defendant, the owner and/or operator of Billar el Rodeo, a
billiards parlor in Tulsa, intercepted and exhibited Manny Pacquiao v. Juan Manuel Marquez,
WBO Welterweight Championship Fight Program (“the Program”), telecast on November 12,
2011, to which plaintiff owns exclusive nationwide distribution rights. Plaintiff personally
served defendant on December 17, 2013, but defendant has failed to answer or otherwise
respond. Plaintiff moved for, and the Court Clerk granted, an entry of default against the
defendant.
Default judgment is appropriate when “a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or

otherwise.” Fed. R. Civ. P. 55(a). The time to answer summons has passed, and plaintiff is
entitled to default judgment pursuant to Fed. R. Civ. P. 55(b)(2).
Plaintiff seeks maximum statutory damages of $10,000.00 under 47 U.S.C. §
605(e)(3)(C)(i)(II) and maximum enhanced damages of $100,000.00 under 47 U.S.C. §
605(e)(3)(C)(ii). Plaintiff also seeks attorneys’ fees in the amount of $900.00 and costs totaling
$450.00, pursuant to 47 U.S.C. § 605(e)(3)(B)(iii).
Under § 605(e)(3)(C)(i)(I) and (II), the aggrieved party may recover either actual
damages or statutory damages in “a sum of not less than $1,000 or more than $10,000, as the
court considers just,” for each violation. Additionally, if the violation was committed “willfully
and for purposes of direct or indirect commercial advantage or private financial gain,” the court
may increase the award of damages by up to $100,000 for each violation. 47 U.S.C. §
605(e)(3)(C)(ii).
In support of its request for maximum statutory and enhanced damages, plaintiff has
submitted the affidavit of its president, Joseph M. Gagliardi, plaintiff’s Rate Card for the event,
and the affidavit of investigator Stuart Sullivan. Mr. Sullivan witnessed the pirated exhibition on
the night of November 12, 2011, and counted the number of patrons at Billar el Rodeo three
separate times. The head counts were 22, 24, and 26. The minimum fee to broadcast the
Program in an establishment with a capacity up to 100 was $2,200.00.
In Joe Hand Promotions, Inc. v. John M. McLemore, 4:10-CV-772-CVE-TLW (N.D.
Okla. Sept. 26, 2011), plaintiff’s investigator observed 84 people in the defendant’s restaurant,
the sublicense fee would have been $875, no cover fee was charged, and the event was broadcast
on three television screens. The court reasoned that a statutory damages award of $2,500
“compensates plaintiff for any fee that should have [been] paid by defendants to obtain a

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sublicense to broadcast the program and for disgorgement of any possible financial benefits
derived by defendants from displaying the illegally intercepted program.” [Id. at 3]. The court
awarded enhanced damages of $2,500, finding this amount “sufficient to punish defendants for
their illegal conduct and deter future violations of § 605,” but “not so substantial that it will
likely put defendants out of business.” [Id. at 4]. See also Joe Hand Promotions, Inc. v. George
Ducummon, 4:11-CV-278-GKF-FHM (N.D. Okla. April 23, 2012) (awarding $2,000 in statutory
damages and $2,000 in enhanced damages); J & J Sports Prods., Inc. v. Rivas, 4:10-CV-760GKF-TLW (N.D. Okla. Aug. 16, 2012) (awarding $2,500 in statutory damages and enhanced
damages of $2,500).
In this case, the sublicense fee was $2,200, no cover fee was charged, and there were 26
patrons in the establishment during the broadcast. [Dkt. #13, Ex. 2]. This court finds $3,000 in
statutory damages and $2,500 in enhancement, for a total damage award of $5,500 to be
sufficient to punish the defendant for his illegal conduct and to deter future violations of § 605.
Plaintiff seeks attorney fees under 47 U.S.C. § 605(e)(3)(B)(iii), which provides that
“[t]he court shall direct the recovery of full costs, including awarding reasonable attorneys’ fees
to an aggrieved party who prevails.” In its motion, plaintiff has attached declarations of its
counsel, Adam Scott Weintraub. [Dkt. #13, Ex. 3]. The declarations include itemized records of
the time spent and rates charged for the prosecution of this case. Plaintiff requests attorneys’
fees of $900.00 for the law firm Savage, O’Donnell, Affeldt, Weintraub & Johnson.
The court has reviewed the declarations and itemized time records and finds the amount
sought by plaintiff for work performed to be reasonable, both with respect to hourly rates and
time spent. Plaintiff also seeks taxable costs of $450.00. The court has reviewed the declaration
of costs, and finds them reasonable and necessary.

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IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that plaintiff’s
Motion for Default Judgment [Dkt. #12] is granted.
IT IS SO ORDERED this 5th day of May, 2014.

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