J & J Sports Productions, Inc. v Ramirez et al

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.
MARIA P. RAMIREZ, individual and d/b/a
BAR LA PERLA NEGRA,
BAR LAW PERLA NEGRA, LLC, an
Oklahoma corporation d/b/a BAR LA
PERLA NEGRA,
Defendants.

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OPINION AND ORDER
Before the court is the Motion for Default Judgment against defendants Maria P.
Ramirez, individually and d/b/a Bar La Perla Negra and Bar La Perla Negra, LLC, filed by
plaintiff J & J Sports Productions, Inc. (“J & J”) [Dkt. #12].
J & J 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 defendants intercepted and exhibited Manny Pacquiao v. Juan
Manuel Marquez, WBO Welterweight Championship Fight Program (“Program”), telecast on
November 12, 2011, to which plaintiff owns exclusive nationwide distribution rights.
Defendants were served on February 12, 2014 [Dkt. ##7-8], but have failed to answer or
otherwise respond. J & J moved for, and the Court Clerk granted, an entry of default against
defendants. [Dkt. ##9-11].

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). On April 8, 2014, pursuant to plaintiff’s motion, the Court
Clerk entered defendant’s default. [Dkt. #12]. The time to answer summons has passed, and J &
J is entitled to default judgment pursuant to Fed. R. Civ. P. 55(b)(2).
J & J 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). Additionally, it seeks attorneys’ fees in the amount of $1,635.00 and costs
totaling $506.69, 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 [Dkt. #13, Ex. 1], a Rate Card for
the event [Id., Ex. 1 thereto], and the affidavit of investigator Stuart Sullivan [Id., Ex. 2].
Sullivan witnessed the pirated exhibition on the night of November 12, 2011, between 9:48 p.m.
and 9:52 p.m., and counted the number of patrons at Bar La Perla Negra three separate times.
The head counts were 40, 41, and 39. [Id.]. The minimum fee to broadcast the Program in an
establishment with a capacity up to 100 people for that program was $2,200.00. [Id., Ex. 1].

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In Joe Hand Promotions, Inc. v. John M. McLemore, 4:10-CV-772-CVE-TLW (N.D.
Okla. Sept. 26, 2011) [Dkt. #28], 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. Judge Eagan reasoned that a statutory damages award
of $2,500 “compensates plaintiff for any fee that should have [been] paid by defendants to obtain
a 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]. Judge
Eagan 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].
Similarly, in Joe Hand Promotions, Inc. v. George Ducummon, 4:11-CV-278-GKF-FHM
(N.D. Okla. April 23, 2012) [Dkt. #22], this court found $2,000 the appropriate amount for
statutory damages and $2,000 the appropriate enhancement, where the broadcast fee for the
program was $750, no cover fee was charged, no more than five to eight patrons were in the
defendant bar, and there was no evidence of repeated violations by defendants. See also
J & J Sports Prods., Inc. v. Rivas, 4:10-CV-760-GKF-TLW (N.D. Okla. Aug. 16, 2012)
(awarding $2,500 in statutory damages and enhanced damages of $2,500, for a total damage
award of $5,000); J & J Sports Prods., Inc. v. Samano, 4:13-CV-721-GKF-FHM (N.D. Okla.
May 5, 2014) (awarding $3,000 in statutory damages and enhanced damages of $2,5000, for a
total damage award of $5,500).
In this case, the sublicense fee defendants should have paid to broadcast the Program was
$2,200, no cover fee was charged, there were no more than 41 patrons in the establishment
during the broadcast, and plaintiff has presented no evidence of a financial benefit to defendant,

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or of repeated violations by defendant. [Dkt. #13, Ex. 2]. Although the broadcast fee in this case
is greater than that in McLemore, the maximum number of patrons who were noted in the
establishment is fewer. Adopting the reasoning set forth in McLemore, Ducummon, Rivas and
Samano, the court finds $3,000 to be the appropriate amount for statutory damages and $2,500 to
be an appropriate enhancement, for a total damage award of $5,500. This amount covers the cost
of the commercial license as well as any minor financial benefit defendant received, and serves
as a deterrent to future violations without putting defendant out of business.
Attorneys’ Fees and Costs
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. 4]. The declarations include itemized records of
the time spent and rates charged for the prosecution of this case. Plaintiff requests attorneys’
fees of $1,635.00 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 $506.69. The court has reviewed the declaration
of costs and finds them reasonable and necessary. [Dkt. #13, Ex. 5].
Accordingly, plaintiff’s Motion for Default Judgment [Dkt. #12] is granted, as set forth
above.
ENTERED this 2nd day of July, 2014.

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