Joe Hand Promotions, Inc. v. Chavez et al

Filing 12

OPINION AND ORDER: Plaintiff's Motion for a Default Judgment 11 is GRANTED. The Court awards statutory damages in the amount of $20,000 and attorney fees and costs in the amount of $4,172 in favor of plaintiff and against defendants. It is further ordered that defendant is enjoined from (1) interfering with plaintiff's proprietary rights, and (2) intercepting, receiving, divulging or displaying plaintiff's satellite programming without prior written consent of plaintiff. Signed on 6/25/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

JOE HAND PROMOTIONS, INC., Broadcast
Licensee of the November 21, 2015
Cotto/Canelo Program,

Case No. 6: l 7-cv-01596-JR
OPINION AND ORDER

Plaintiff,

v.
SOTERO ENCISO CHAVEZ, an individual,
and SOTENO LLC, d/b/a SEVEN SEAS
RESTAUTRANT & BAR, a/k/a 7 MARES
RESTAURANT,
Defendants.
AIKEN, District Judge:
Plaintiff, Joe Hand Promotions, Inc., initiated this action on October 10, 2017 against
defendants, Sotero Enciso Chavez and Soten LLC, doing business as Seven Seas Restaurant &
Bar ("7 Mares Restaurant"). Plaintiff alleges defendants infringed plaintiffs exclusive rights

1 - OPINION AND ORDER

under sections 553 and 605 of the Communications Act by illegally intercepting and exhibiting
the Cotto vs. Canelo broadcast (the "Program") on November 21, 2015. Further, plaintiff alleges
the conduct of defendants has and will continue to cause harm to plaintiff unless the unlawful
activity is enjoined.
DISCUSSION

The Court entered an order of default against defendant on January 23, 2018. Plaintiff
now moves for default judgment against defendants.

Specifically, plaintiff seeks statutory

damages from each defendant in the amount of $15,000, a permanent injunction, attorney fees in
the amount of$3,022, and costs in the amount of$1,150.

1

47 U.S.C. § 553 and§ 605
To establish a claim of unlawful interception of satellite programs, plaintiff must

demonstrate that it has a proprietary interest in the Program, and that the defendants unlawfully
intercepted, received, published, displayed, and/or exhibited the Program without plaintiffs
authorization. 47 U.S.C. § 553(a); 47 U.S.C. § 605(a); J&J Sports Prods. v. Segura, 2018 U.S.
Dist. LEXIS 66291, *8-9 (N.D. Cal. 2018). Direct evidence of unlawful satellite interception is
not required to establish a violation under sections 553 or 605. DirecTV, Inc. v. Webb, 545 F.3d
837, 844 (9th Cir. 2008). Circumstantial evidence may be equally persuasive. Id.
Upon default, the factual allegations of the complaint are taken as true, except the
allegations relating to the amount of damages. Geddes v. United Financial Group, 559 F.2d 557,
560 (9th Cir. 1977). The complaint establishes that plaintiff had a proprietary interest in the
Program and that defendants were not on Oregon's list of authorized commercial purchasers of

2 - OPINION AND ORDER

the Program. 1 Pl.'s Comp. at 4-5. Defendant 7 Mares Restaurant is a commercial establishment
and, as such, could only have lawfully obtained the Program if plaintiff had contracted with
defendants for the rights to show it. While plaintiff is unable to determine the direct method of
interception, an auditor witnessed the Program being displayed on five television sets at
defendants' commercial establishment. Pl.'s Aff. Ex. A, at 7. Taking the allegations as true,
plaintiffs complaint establishes the elements of unlawful satellite interception required to state a
claim under sections 553 and 605.
fl

Vicarious Liability

Plaintiff claims defendant Sotero Enciso Chavez should be held personally liable,
alongside defendant 7 Mares Restaurant, for the unlawful activities occurring within the
restaurant on November 21, 2015. In order for defendant Chavez to be held liable, plaintiff must
demonstrate that he authorized the violations alleged in the complaint, or had a "right and ability
to supervise" the violations and a strong financial interest in such activities.

Joe Hand

Promotions, Inc. v. Prezio, 2009 U.S. Dist. LEXIS 137101, *4-5 (S.D. Cal. 2009) (citing J&J
Sports Prods. v. Potions Bar & Lounge, Inc., 2009 WL 763624, *9 (E.D.N.Y. 2009)).

Plaintiff contends that defendant Sotero Enciso Chavez is the owner/operator of 7 Mares
Restaurant, where the violation took place, and has oversight and management thereof. Pl.'s
Comp. at 2-3. Plaintiff further alleges defendant Chavez received a financial benefit from the
operations of 7 Mares Restaurant. Id. at 3. As these allegations are undisputed, the Court finds
this ownership/operation and strong financial interest sufficient to establish vicarious liability.

1

The Affidavit of Joe of Hand, Jr. marks both the Oregon list of authorized commercial
purchasers and the auditor's affidavit as Exhibit A. Pl.'s Aff. at 2-3. Exhibit A consists only of
the auditor's affidavit. Pl.'s Aff. Ex. A, at 7-8. While the Oregon list of commercial purchasers
is not provided, the Court is entitled to assume as true the facts alleged in the pleadings. Geddes,
559 F.2d at 560.
3 - OPINION AND ORDER

Ill

Statuto1y Damages Under 47 US. C. § 605(e)(3)(C)(i)(JJ)
A plaintiff may elect to recover damages under sections 553 and 605, but not both. J&J

Sports Prods. v. Ro, 2010 U.S. Dist. LEXIS 21425, *8 (N.D. Cal. 2010). Here, plaintiff elects to
recover damages under section 605(a). Pl.'s Mem. in Supp. of Default J. at 10. Plaintiff is
entitled to recover actual damages attributable to the unauthorized interception of the Program or
may elect to recover statutory damages. Plaintiff seeks statutory damages in the amount of
$5,000 and enhanced statutory damages in the amount of $10,000 from each defendant. The
comi may award statutory damages "in a sum of not less than $1,000 or more than $10,000." 47
U.S.C. § 605(e)(3)(C)(i)(II). However, where the interception is committed willfully, "the court
in its discretion may increase the award of damages ... by an amount not more than $100,000."
47 U.S.C. § 605(e)(3)(C)(ii).
Courts use a variety of methods for calculating an award of statutory damages under
section 605. "A traditional method of determining statutory damages is to estimate either the
loss incurred by the plaintiff or the profits made by the defendants." Garden City Boxing Club,

Inc. v. Zavala, 2008 U.S. Dist. LEXIS 79647, *3 (N.D. Cal. 2008).

See also Joe Hand

Promotions, Inc. v. Holmes, 2015 U.S. Dist. LEXIS 116899, *20 (D. Or. 2005); Kingvision PayPer-View, Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).
Following the traditional approach, the Comi considers the losses and profits resulting
from defendants' unlawful interception. In this case, it would be impossible to calculate the full
extent of the profits obtained by defendants; however, plaintiff indicates that defendants' cost to
legally license the Program would have been $4,200. Pl.'s Mem. in Supp. of Default J. at 13.
The Court shall base the award of statutory damages off of the cost of the licensing fee had the
defendants legally purchased the Program. The Comi finds that the circumstances of this case

4 - OPINION AND ORDER

justify awarding plaintiffs request of damages in the amount of $5,000 against each defendant,
for a total of$10,000.
In detennining whether the interception was committed willfully, comis typically
consider the following factors with respect to enhanced damages: "repeated violations over an
extended period of time; substantial monetary gains; significant actual damages to plaintiff;
defendants' advertising for the intended broadcast of the event; defendants charging a cover
charge; or charging premiums for food and drink." Joe Hand Promotions, Inc. v. Gonzalez, 2015
U.S. Dist. LEXIS 14763, *12-13 (E.D. Cal. 2015).
Here, plaintiff provides no evidence in the record of prior violations, significant earnings
by defendants or a cover charge fee. Nevertheless, plaintiff establishes that defendants' unlawful
act of intercepting the Program caused the plaintiff significant damages. Pl.'s Mem. in Supp. of
Default J. at 13. Plaintiff provides evidence that defendants advertised the Program at their
location. Pl.'s Aff. Ex. B at 13. Moreover, plaintiff claims that defendants increased food and
drink prices, and thus, an inference can be drawn that defendants intended to increase business
and entice a larger crowd. Pl.'s Comp.if 14.
Taking these factors into consideration, defendants willfully took an affomative action to
illegally intercept plaintiffs Program, and plaintiff is entitled to receive enhanced damages under
47 U.S.C. § 605(e)(3)(C)(ii). However, I see no reason justifying plaintiffs request of enhanced
damages in the total amount of $20,000. The Court finds an award of damages in the total
amount of $10,000 adequate to deter defendants and others from committing similar acts in the
future. Accordingly, the Court awards enhanced statutory damages in the amount of $5,000
against each defendant, for a total of $10,000, in addition to the $10,000 awarded under section
605(e)(3)(C)(i)(II).

5 ~OPINION AND ORDER

JV.

Injunction
The court may grant final injunctions to prevent further unauthorized interceptions. 47

U.S.C. § 605(e)(3)(B)(i). Accordingly, defendants are hereby pe1manently enjoined from
intercepting, receiving, exhibiting, or displaying plaintiffs satellite programming without the
consent of plaintiff.

V.

Attorney Fees and Costs
The court shall direct the recovery of full costs, including awarding reasonable attorneys'

fees to an aggrieved party who prevails in a Communication Act case. 47 U.S.C. §
605(e)(3)(B)(iii). An aggrieved pmiy "shall include any person with proprietary rights in the
intercepted communication by wire or radio, including wholesale or retail distributors of satellite
cable programming." 47 U.S.C. § 605(d)(6).

Here, plaintiff had the exclusive commercial

distribution rights to the Program and is considered an aggrieved person under section 605(d)(6).
An award to plaintiff of full costs and reasonable attorney fees is appropriate in this case.
In determining reasonable attorney fees under section 605, courts apply the lodestar
method. DirecTV, Inc. v. Atwa/, 2005 U.S. Dist. LEXIS 43784, *5 (E.D. Cal. 2005). The
lodestar calculates the number of hours expended on the case multiplied by a reasonable hourly
rate. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543 (1984). Plaintiff, as the party
requesting fees, has the burden of documenting the appropriate hours expended on the case and
must submit evidence supporting the hours worked. Chalmers v. City ofLos Angeles, 796 F.2d
1205, 1210 (9th Cir. 1986).

6 - OPINION AND ORDER

In this case, plaintiff provides detailed documentation of attorney and paralegal time
expended. Att'y Aff. at 4-8. Plaintiff seeks an hourly rate of$250. 2 Id. at 4. In similar cases,
the Court has previously dete1mined this rate to be reasonable. See J&J Sports Prods. v.
Gonzalez, 2018 U.S. Dist. LEXIS 51868, *5 (D. Or. 2018); DIRECTV, Inc. v. Taylor, 2004 U.S.

Dist. LEXIS 21840, *7 (D. Or. 2004). Additionally, under the Oregon State Bar 2017 Economic
Survey, the mean hourly rate in the lower Willamette Valley region is $260. Accordingly, the
rate of $250 an hour is reasonable in this case. Moreover, the Comt finds the total hours
expended by plaintiffs attorney and paralegal of 19.9 hours is reasonable. Plaintiff is entitled to
an award of attorney fees in the amount of $3,022. Additionally, plaintiff is entitled to an award
of costs in the amount of$1,150 for filing and service fees.
CONCLUSION

For the forgoing reasons, plaintiffs Motion for a Default Judgment is GRANTED. (doc
11 ). The Court awards statutory damages in the amount of $20,000 and attorney fees and costs
in the amount of $4,172 in favor of plaintiff and against defendants. It is further ordered that
defendant is enjoined from (1) interfering with plaintiffs proprietary rights, and (2) intercepting,
receiving, divulging or displaying plaintiffs satellite programming without prior written consent
of plaintiff.
IT IS SO ORDERED.
DATED this

Jsrfay of June 2018.

ANNAIKEN
United States District Judge

'The actual hourly fee referenced in this case is $250 per hour for associate time and $95
an hour for paralegal time.
7 - OPINION AND ORDER