Joe Hand Promotions Inc v. AFSB LLC et al

Filing 13

OPINION AND ORDER granting 11 Motion for Default Judgment. Signed by Honorable Bruce Howe Hendricks on 8/25/15.(alew, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
Civil Action No.: 8:14-cv-02676-BHH
Joe Hand Promotions, Inc.,
Plaintiff,
vs.

Opinion and Order

AFSB, LLC d/b/a Break Time Sports Bar
and Grill, and James Blanding,
Defendants.

This matter is before the Court on the plaintiff’s motion for default judgment (ECF
No. 11). For the reasons set forth below, the Court grants the motion and awards
damages as described herein.
BACKGROUND
The plaintiff, Joe Hand Promotions, Inc., filed a complaint on July 1, 2014,
advancing causes of action pursuant to 47 U.S.C. § 553 for the unauthorized reception
of cable service and 47 U.S.C. § 605 for the unauthorized publication or use of
communications.1 The defendants, AFSB, LLC, d/b/a Break Time Sports Bar and Grill
and James Blanding, were served with the complaint as evinced by the affidavits of
Lester Franzen of Southern Pride Process, the process server for the plaintiff. (See
ECF No. 6.) The defendants failed to timely file an answer or otherwise respond to the
plaintiff's complaint.

Thus, upon the plaintiff's request, the Clerk of Court entered

default on August 26, 2014. The present motion for default judgment followed.

1

The plaintiff also advances a state-law claim for conversion.

A review of the complaint, the motion for default judgment, and other supporting
documents, reveals the following facts, which are accepted as true in light of the
defendants' default. See DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322 n. 1 (4th Cir.
2009) (accepting plaintiffs allegations against defaulting defendant as true, noting a
defaulting defendant “admits the plaintiffs well-pleaded allegations of fact, is concluded
on those facts by the judgment, and is barred from contesting on appeal the facts thus
established”) (quoting Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir.
2001)).
The plaintiff had exclusive, nationwide commercial television distribution rights to
“Ultimate Fighting Championship 148: Anderson Silva v. Chael Sonnen”, which included
all under-card bouts and commentary, and which aired on July 7, 2012 (the “Program”).
As alleged in cursory fashion in the plaintiff’s complaint and set forth in greater detail in
the affidavit (ECF No. 11-4) of the plaintiff’s investigator, Donna Persinger, on the night
of July 7, 2012, the defendants, a sports bar and its owner and operator, intercepted,
received, and exhibited the program. The defendants charged patrons a $5.00 cover
charge and sold food and alcohol.
DISCUSSION
The plaintiff asserts that the defendants have violated both 47 U.S.C. § 553 and
47 U.S.C. § 605. These two statutory schemes provide relief for the alternate means of
reception—cable and satellite, respectively—of the Program. In its Motion for Default
Judgment, the plaintiff submitted that it has established liability pursuant to 47 U.S.C.
§ 605 and 47 U.S.C. § 553; and because the two statutory schemes provide relief for
the alternate means by which the Program might have been received (satellite or cable),

the plaintiff elected to proceed under 47 U.S.C. § 605.

The plaintiff’s election of

remedies also extends to its cause of action for conversion, which has been withdrawn.
In electing to pursue damages pursuant to 47 U.S.C. § 605, the plaintiff
concedes the split in authority as to the applicability of this section to pirated
programming involving cable services -- as opposed to satellite services -- at the
delivery point, and it submits that, without the benefit of discovery or an admission by
the defendants, it is impossible to conclusively determine whether the Program was
broadcast by cable or satellite signal. The Court recognizes that 47 U.S.C. § 605 would
be inapplicable if the delivery were by cable; however, given the default, the plaintiff
cannot conduct discovery to determine the mode of transmission.
A higher range of damages is available in 47 U.S.C. § 605 than in 47 U.S.C.
§ 553. Statutory damages under 47 U.S.C. § 605 range from $1,000 to $10,000 for
each violation with a $100,000 maximum enhancement for willfulness, while statutory
damages under 47 U.S.C. § 553 range from $250 to $10,000 for all violations with a
$50,000 maximum enhancement for willfulness. 47 U.S.C. §§ 605(e)(3)(C)(i)(II) and
605(e)(3)(C)(ii); 47 U.S.C. §§ 553(c)(3)(A)(ii) and 553(c)(3)(B). In any event, in light of
the damages awarded herein, the distinction is without a difference in this case. See
Columbia Cable TV Co., Inc. v. McCrary, 954 F.Supp. 124, 128 (D.S.C. 1996) (noting
that, even if 47 U.S.C. § 605 were applicable to cable theft, under the facts of the case,
the court would award damages "as close as permissible to the amount awarded under
§ 553").
Section 605 provides, in pertinent part:
no person receiving, assisting in receiving, transmitting, or assisting in
transmitting, any interstate or foreign communication by wire or radio shall

divulge or publish the existence, contents, substance purport, effect, or
meaning thereof [ ] to [ ] any person other than the addressee, his agent or
attorney[.]
47 U.S.C. § 605(a). As noted above, the Court has reviewed the affidavit (ECF No. 114) of the plaintiff’s investigator, Donna Persinger, who went to the Break Time Sports
Bar and Grill, located at 100 Miracle Drive, Anderson, South Carolina 29621, on the
evening of July 7, 2012, and observed the Program being aired. The Court finds that
the plaintiff has presented evidence sufficient to establish that the defendants “divulged”
the program in violation of 47 U.S.C. § 605(a).

With regard to remedies, section

605(e)(3)(B) provides as follows:
(B) The court-(i)

may grant temporary and final injunctions on such terms as it
may deem reasonable to prevent or restrain violations of
subsection (a) of this section;

(ii)

may award damages as described in subparagraph (C); and

(iii)

shall direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who prevails.

The plaintiff also seeks damages, attorneys’ fees, and costs.
Section 605(e)(3)(C) governs the computation of damages:
(C)(i) Damages awarded by any court under this section shall be
computed, at the election of the aggrieved party, in accordance with either
of the following subclauses;
(I)

the party aggrieved may recover the actual damages
suffered by him as a result of the violation and any profits of
the violator that are attributable to the violation which are not
taken into account in computing the actual damages; in
determining the violator's profits, the party aggrieved shall be
required to prove only the violator's gross revenue, and the

violator shall be required to prove his deductible expenses
and the elements of profit attributable to factors other than
the violation; or
(II)

the party aggrieved may recover an award of statutory
damages for each violation of subsection (a) of this section
involved in the action in a sum of not less than $1,000 or
more than $10,000, as the court considers just, and for each
violation of paragraph (4) of this subsection involved in the
action an aggrieved party may recover statutory damages in
a sum not less than $10,000, or more than $100,000, as the
court considers just.

(ii) In any case in which the court finds that the violation was committed
willfully and for purposes of direct or indirect commercial advantage or
private financial gain, the court in its discretion may increase the award of
damages, whether actual or statutory, by an amount of not more than
$100,000 for each violation of subsection (a) of this section.
(iii) In any case where the court finds that the violator was not aware and
had no reason to believe that his acts constituted a violation of this
section, the court in its discretion may reduce the award of damages to a
sum of not less than $250.
Here, the plaintiff seeks to recover statutory damages available under 47 U.S.C.
§ 605(e)(3)(C)(i)(II), rather than actual damages available under 47 U.S.C.
§ 605(e)(3)(C)(i)(I). Because of the defendants’ default, actual damages are difficult to
prove as the plaintiff has not been able to conduct discovery concerning, among other
things, the defendants' profits from the broadcast of the Program.
According to the private investigator's affidavit, Break Time Sports Bar and Grill
has a capacity of approximately 100 patrons and charged a $5.00 cover charge the
night of the broadcast. According to Plaintiff's Affidavit in Support of Motion for Default
Judgment, the Rate Card shows that, based on said capacity, the charge for the
license fee for the Program was $950.00. The plaintiff seeks statutory damages of
$10,000, enhanced damages of $100,000, attorneys’ fees in the amount of $2,178.75,

and costs in the amount of $1,120.
Courts have used various methods of determining an appropriate amount of
statutory damages.

Some courts fashion an award by considering the number of

patrons who viewed the programming, often multiplying that number by the cost if each
had paid the residential fee for watching such programming. Some courts base the
statutory damages amount on an iteration of the licensing fee the violating
establishment should have paid the plaintiff. Other courts award a flat amount for a
violation. See J & J Sports Prods., Inc. v. JR'z Neighborhood Sports Grille, Inc., 2:09–
3141–DCN, 2010 WL 1838432 (D.S.C. April 5, 2010) (noting various methods of
calculating statutory damages); Joe Hand Promotions, Inc. v. Precint Bar–Daxlam, Ltd.,
3:10–199–CMC, 2010 WL 3420189 (D.S.C. Aug.23, 2010) (noting consideration of
licensing fee “and the multiple and net amount necessary to ensure a deterrent effect”).
This Court finds that a statutory damages award of $2,850, which is three times
the license fee that the defendants should have paid to legally broadcast the Program,
is the appropriate amount of statutory damages. This award is within the range of
statutory damages that other judges within this district have awarded in similar cases.
See, e.g., Joe Hand Promotions, Inc. v. The Precint Bar–Daxlam, Ltd., 3:10–199–CMC,
2010 WL 3420189, *2 & n. 2 (D.S.C. Aug. 23, 2010); Joe Hand Promotions, Inc. v.
Jimmagan's Inlet, Inc., 4:10–801–TLW–SVH, 2010 WL 5141768, *2 (D.S.C. Oct. 1,
2010; Joe Hand Promotions, Inc. v. Scott's End Zone, Inc., 759 F.Supp.2d 742, 748
(D.S.C. 2010); Joe Hand Promotions, Inc. v. KJ'z Wings & Ale, LLC, 0:14-CV-02868JMC, 2015 WL 1549105, at *2 (D.S.C. Apr. 8, 2015); Joe Hand Promotions, Inc. v.
Upstate Recreation, CIV.A. 6:13-2467-TMC, 2015 WL 685461, at *8 (D.S.C. Feb. 18,

2015); Joe Hand Promotions, Inc. v. Double Down Ent., LLC, 0:11-CV-02438-MBS,
2014 WL 994382, at *7 (D.S.C. Mar. 13, 2014). When combined with the enhanced
damages and attorneys' fees, discussed below, the Court finds that the damages
awarded in this case are a sufficient deterrent of similar future conduct.
Section 605(e)(3)(C)(ii) allows for enhanced damages in addition to statutory
damages when the violation is committed “willfully and for purposes of direct or indirect
commercial advantage or private financial gain.” 47 U.S.C. § 605(e) (3)(C)(ii). The
plaintiff claims that Defendants willfully violated 47 U.S.C. § 605(a) for financial gain and
seeks enhanced damages of $100,000, asserting that Defendants intentionally
intercepted and showed the Program for financial gain or commercial advantage and
that the defendants directly or indirectly committed wrongful acts and cannot hide
behind a corporate shield. The statute permits the court, in its discretion, to increase
damages by up to $100,000 per violation when the violation is "committed willfully and
for purposes of direct or indirect commercial advantage or private financial gain[.]" 47
U.S.C. § 605(e)(3)(C)(ii).

In addition to the plaintiff's pleadings regarding the

defendants’ intentional acts, the plaintiff, in its affidavit in support of the motion for
default judgment, asserted that the Program could not have been "mistakenly,
innocently or accidentally intercepted." Although the court finds that the defendants’
violations were intentional and willful and agrees that more than nominal damages
should be awarded to deter future violations, the court does not approve the maximum
of statutory enhanced damages, and it concludes that enhanced damages in the
amount of $5,700.00 (in addition to the $2,850.00 award discussed above and the
award of attorneys’ fees and costs discussed below) should be granted.

Finally, the plaintiff seeks attorneys' fees under 47 U.S.C. § 605(e) (3)(B)(iii),
which states that the court “shall” award attorney's fees and costs. In determining what
constitutes a reasonable number of hours and the appropriate hourly rates (i.e., in
calculating the lodestar fee), the court must consider the following factors: (1) the time
and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill
required to properly perform the legal services rendered; (4) the attorney's opportunity
costs in pressing the instant litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation; (7) the time limitations imposed by
the client or circumstances; (8) the amount in controversy and the results obtained; (9)
the experience, reputation and ability of the attorney; (10) the undesirability of the case
within the legal community in which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and (12) attorneys' fees awarded
in similar cases. Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir.1978); Jackson v.
Estelle's Place, LLC, No. 09–1700–2010 WL 3190697, *4 (4th Cir. Aug. 12, 2010). A
number of the factors may not be applicable in a particular case and, thus, need not be
strictly applied. See E.E.O.C. v. Service News Co., 898 F.2d 958, 965 (4th Cir.1990).
In support of its requests for attorneys’ fees and costs, the plaintiff has submitted
the declarations of its South Carolina counsel and its California counsel. The plaintiff
seeks attorney’s fees in the amount of $2,178.75. After considering the factors set forth
in the foregoing discussion and the declaration of the plaintiff’s counsel, the Court finds
that the requested fee is reasonable and appropriate.

Accordingly, the plaintiff is

awarded attorneys’ fees in the amount of $2,178.75. The Court also finds that the
record supports an award of costs in the amount of $1,120.00.

CONCLUSION
For the reasons set forth above, the Court grants the plaintiff’s motion for default
judgment and awards the plaintiff $2,850.00 in statutory damages, $5,700.00 in
enhanced damages, $2,178.75 in attorneys’ fees, and $1,120.00 in costs, for a total
award of $11,848.75.

The defendants are jointly and severally liable for these

damages.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
August 25, 2015
Greenville, South Carolina