G&G Closed Circuit Events LLC v. Montelongo et al
ORDER granting in part and denying in part 9 Plaintiff G & G Closed Circuit Events, LLC's Motion for Default Judgment. Plaintiff G & G Closed Circuit Events, LLC is entitled to judgment pursuant to Federal Rule of Civil Procedure 55(b) against Defendant Socorro Montelongo, individually and d/b/a Coco's Bar, for her violation of 47 U.S.C. 605. See Order for details. Signed by Judge Jodi W. Dishman on 01/07/2022. (km)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
G & G CLOSED CIRCUIT EVENTS,
individually and d/b/a COCO’S BAR;
and SOCORRO MONTELONGO,
individually and d/b/a COCO &
Case No. CIV-21-00426-JD
Before the Court is Plaintiff G & G Closed Circuit Events, LLC’s Motion for
Default Judgment [Doc. No. 9] and Brief in Support [Doc. No. 10] (the “Motion”).
Following the Clerk’s Entry of Default on July 1, 2021 [Doc. No. 8], Plaintiff seeks a
default judgment in its favor and against Socorro Montelongo, individually and d/b/a
Coco’s Bar, and Socorro Montelongo, individually and d/b/a Coco & Company, in the
amount of $110,000.00, attorney’s fees in the amount of $1,170.00, and costs in the
amount of $416.00. Having reviewed the record and Plaintiff’s submissions, and for the
reasons stated below, the Court finds that the Motion should be granted in part and denied
Plaintiff’s Complaint alleges a violation of the Communications Act of 1934 as
amended, 47 U.S.C. § 605, and the Cable Television Consumer Protection and
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Competition Act of 1992, 47 U.S.C. § 553. See Compl. [Doc. No. 1]. Plaintiff alleges it
held exclusive nationwide commercial distribution rights to the telecast of the Saul
“Canelo” Alvarez v. Daniel Jacobs WBA/WBC/IBF Middleweight Championship Fight
Program, including all undercard bouts and fight commentary, on Saturday, May 4, 2019
(the “Program”), and that on that date Socorro Montelongo unlawfully intercepted,
published, and exhibited the Program at Coco’s Bar, a commercial establishment located
at 3501 South Robinson Avenue, Oklahoma City, Oklahoma 73109 (“Coco’s Bar”). See
id. ¶¶ 8, 11, 15, 20–21.
The record reflects that Defendants were timely served and that the time for
Defendants to answer or otherwise respond has expired. Defendants neither appeared nor
filed any motion or pleading, and the Clerk entered the default of Defendants pursuant to
Federal Rule of Civil Procedure 55(a) on July 1, 2021. See Clerk’s Entry of Default [Doc.
Plaintiff filed its Motion and supporting brief on November 4, 2021. [Doc. Nos. 9,
10]. The Motion reflects that it was mailed to Defendants. No timely response to the
Motion has been made, and pursuant to LCvR7.1(g), the Court deems the Motion
II. STANDARD FOR ENTRY OF DEFAULT JUDGMENT
Under Rule 55 of the Federal Rules of Civil Procedure, default judgment may
enter against a party who fails to appear or otherwise defend. That rule sets out a two-step
procedure. Initially, the plaintiff must ask the Clerk of Court to enter default. Fed. R. Civ.
P. 55(a). Once the Clerk has complied, the Plaintiff may seek default judgment under
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Rule 55(b). See Garrett v. Seymour, 217 F. App’x 835, 838 (10th Cir. 2007)
(unpublished) (finding that entry of default is a prerequisite for the entry of a default
judgment under Rule 55(b)(1)).
However, even after entry of default, the Court has an affirmative duty to
determine its jurisdiction over the subject matter of the dispute and over the parties.
Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 772 (10th Cir.
1997) (requiring the district court to determine personal jurisdiction before entering a
default judgment); cf. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974) (explaining generally that a district court “lacking [subject-matter] jurisdiction
cannot render judgment”). Additionally, “it remains for the court to consider whether the
unchallenged facts constitute a legitimate cause of action, since a party in default does
not admit conclusions of law.” 10A Charles A. Wright et al., Fed. Prac. & Proc. § 2688.1
(4th ed.); see also Mrs. Condies Salad Co., Inc. v. Colo. Blue Ribbon Foods, LLC, 858 F.
Supp. 2d 1212, 1218 (D. Colo. 2012) (stating same proposition).
“[W]hen entry of a default judgment is sought against a party who has failed to
plead or otherwise defend, the district court has an affirmative duty to look into its
jurisdiction both over the subject matter and the parties.” Williams v. Life Sav. & Loan,
802 F.2d 1200, 1203 (10th Cir. 1986). Defects in personal jurisdiction are not waived by
default when a party fails to appear or to respond, and the plaintiff bears the burden of
proving personal jurisdiction before a default judgment may be entered. Id. at 1202–03.
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The plaintiff’s burden may be met on the basis of the pleadings and affidavits. See, e.g.,
Sharpshooter Spectrum Venture, LLC v. Consentino, No. 09-cv-0150-WDM-KLM, 2011
WL 3159094, at *2 (D. Colo. July 26, 2011) (“Where, as here, the issue is determined on
the basis of the pleadings and affidavits, that burden may be met by a prima facie
showing.” (citing Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011)).
Here, the record establishes that Defendants were served with process in
Oklahoma and that the wrongful act complained of occurred in Oklahoma at an
establishment owned and operated by Socorro Montelongo located in Oklahoma City. As
such, the Court is satisfied that it has personal jurisdiction over Defendants. The Court
also has subject-matter jurisdiction over this case under 28 U.S.C. § 1331 because
Plaintiff’s Complaint alleges a violation of federal statutes.
B. Basis for Liability
As a result of Defendants’ default, the Court accepts the well-pleaded factual
allegations in Plaintiff’s Complaint as true. See Tripodi v. Welch, 810 F.3d 761, 764
(10th Cir. 2016) (noting that after default is entered, “a defendant admits to a
complaint’s well-pleaded facts and forfeits his or her ability to contest those facts”);
United States v. Craighead, 176 F. App’x 922, 924 (10th Cir. 2006) (“The defendant,
by his default, admits the plaintiff’s well-pleaded allegations of fact, is concluded on
those facts by the judgment, and is barred from contesting on appeal the facts thus
established.”) (unpublished) (quoting Nishimatsu Constr. Co. v. Houston Nat’l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
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The Complaint and the evidence submitted in support of Plaintiff’s Motion
establish that on Saturday, May 4, 2019, Socorro Montelongo owned or operated Coco’s
Bar, and caused portions of the Program, including commercials or preliminaries prior to
the main event, to be exhibited on six televisions at Coco’s Bar without a sublicense from
Plaintiff. See Compl. ¶¶ 7–11, 15, 20–21; Aff. of Nicolin Decker [Doc. No. 10-2] at 1.
Based on the pleadings and evidence submitted, the Court finds that Defendant Socorro
Montelongo, individually and d/b/a Coco’s Bar, committed a single violation of 47
U.S.C. § 605(a). See Kingvision Pay-Per-View, Ltd. v. Gutierrez, 544 F. Supp. 2d 1179,
1184 (D. Colo. 2008) (“[M]ost cases applying the statute in a commercial context have
interpreted the showing of an event on a single night as one violation.”) (citations
omitted).1 Given the nature of the safeguards in place to prevent persons from obtaining
Plaintiff’s Program from other than proper means, the Court finds that the interception
and exhibition of the Program was willful. See Aff. of Nicolas Gagliardi [Doc. No. 10-1]
at ¶ 9. Further, because the Program was exhibited at a commercial establishment, the
Court finds that the Program was intercepted and exhibited for commercial advantage or
private financial gain.
Plaintiff has not, however, established any violation of §§ 605(a) or 553(a) with
respect to Coco & Company. Plaintiff’s well-pleaded allegations establish that
Although Plaintiff brought claims under 47 U.S.C. § 553, Plaintiff seeks by its
Motion only awards of statutory and enhanced damages under 47 U.S.C. § 605. See Mot.
¶ 5; Br. at 9–10; see also Fed. R. Civ. P. 7(b) (a request for court order must be made by
motion and the motion must state with particularity the grounds for seeking the order and
state the relief sought). The Court notes that other district courts have found it would be
an improper award of duplicative damages to allow recovery under both statutes. See,
e.g., Kingvision, 544 F. Supp. 2d at 1184.
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Montelongo owned or operated Coco & Company, a commercial establishment operating
at 12 SW 27th Street, Oklahoma City, Oklahoma 73129. However, neither the Complaint
nor the evidentiary materials submitted by Plaintiff establishes that the Program was ever
unlawfully intercepted or exhibited at Coco & Company. Accordingly, the Court finds
that default judgment is appropriate only as to Defendant Montelongo, individually and
d/b/a Coco’s Bar.
By Motion, Plaintiff elects to recover damages as provided under 47 U.S.C.
§ 605(e)(3)(C)(i)(II), which authorizes an award of statutory damages for each violation
of § 605(a) “in a sum of not less than $1,000 or more than $10,000, as the court considers
just,” and under § 605(e)(3)(C)(ii), which authorizes the Court, in its discretion, to
increase the award of statutory damages by an amount of not more than $100,000 per
violation if “the violation was committed willfully and for purposes of direct or indirect
commercial advantage or private financial gain . . . .”
Plaintiff requests that the Court award $10,000 in statutory damages and
$100,000.00 in enhanced damages—the maximum amounts allowed under these
provisions of the statute. The record establishes that the commercial sublicense fee to
exhibit the Program at Coco’s Bar would have been $1,500. See Gagliardi Aff. at ¶ 8. The
evidence further shows that the occupancy capacity for Coco’s Bar was 65 persons and
that approximately 65 people were present. See Decker Aff. at 1.
Upon consideration, the Court finds that an award of statutory damages in the
amount of $10,000 is just. This amount adequately compensates Plaintiff for the
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commercial sublicense fee to which it was entitled and disgorges from the Defendant
any profits obtained as a result of her unlawful broadcast of the Program.
Additionally, because Montelongo’s conduct was willful and for the purpose of
direct or indirect commercial advantage or private financial gain, the Court, in its
discretion, finds that Plaintiff should also be awarded enhanced damages under 47 U.S.C.
§ 605(e)(3)(C)(ii). The record contains no evidence that Montelongo has previously
engaged in similar conduct or that she derived significant profits from unlawfully
exhibiting the Program. Additionally, the Court gives some consideration to the fact that
Plaintiff’s evidence shows that only portions of the Program were exhibited, not
including the main event. On this record, the Court finds that an award of enhanced
damages in the amount of $20,000 is proper to sufficiently punish Montelongo for her
illegal conduct and deter future violations.
Based on the foregoing, Plaintiff is also entitled to an award of reasonable
attorney’s fees and costs. See 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff’s counsel has
submitted declarations setting forth a description of the work performed, the hourly rates
charged, and the costs incurred. See Weintraub Decls. [Doc. Nos. 10-4 and 10-5]. The
Court finds the amounts sought are reasonable, and awards attorney fees in the amount of
$1,170.00 and costs in the amount of $416.00.
For the reasons stated above, Plaintiff’s Motion for Default Judgment [Doc. No. 9]
is GRANTED IN PART and DENIED IN PART. Plaintiff G & G Closed Circuit Events,
LLC is entitled to judgment pursuant to Federal Rule of Civil Procedure 55(b) against
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Defendant Socorro Montelongo, individually and d/b/a Coco’s Bar, for her violation of
47 U.S.C. § 605 as follows:
(1) statutory damages in the amount of $10,000.00 pursuant to 47 U.S.C.
(2) enhanced statutory damages in the amount of $20,000.00 pursuant to 47 U.S.C.
§ 605(e)(3)(C)(ii); and
(3) attorney fees in the amount of $1,170.00 and costs in the amount of $416.00
pursuant to 47 U.S.C. § 605(e)(3)(B)(iii).
The Motion is otherwise DENIED.
IT IS SO ORDERED this 7th day of January 2022.
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