Zuffa, LLC v. Miller

Filing 28

OPINION AND ORDER. Signed by Charles B. Kornmann on 5/17/12. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

Flt-!D
MAY f 7 2012

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ZUFFA, LLC, d/b/a TIlE ULTIMATE
FIGHTING CHAMPIONSHIP (UFC),
Plaintiff,
-vs-

JASON J. MILLER, Individually, and
d/b/a JAKE'S PUB AND CASINO,
Defendant.

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CIV 11-1017

OPINION AND ORDER

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Plaintiff is a Nevada limited liability company with its principal place of business
in Las Vegas, Nevada. Plaintiff is the owner of the UFC # 121 broadcast, the heavyweight
championship fight between Brock Lesnar and Cain Velasquez, which aired October 23,
2010, via closed circuit television and encrypted satellite signal (capable of being re­
transmitted to cable systems). Plaintiff filed a complaint alleging that defendant aired the
UFC # 121 broadcast without first obtaining a Jicense from plaintiff. Plaintiff claimed in
Count I of the complaint that such unauthorized broadcast violated the Trademark Law
Revision Act of 1988, PL 100-667, §205 (Piracy of Satellite Cable Programming),
codified in part at 47 U.S.C. § 605. In Count II, plaintiff claimed defendant's actions
violated the Cable Communications Policy Act of 1984, which enacted 47 U.S.C. §§ 521­
615 as amendments to the Communications act of 1934, PL 98-549, § 2 (Unauthorized
Reception of Cable Service), codified in part at 47 U.S.C. § 553. In Count III, plaintiff
claimed defendant's actions violated the 1976 revision of the Copyright Law, PL 94-553,

§ 501 (Copyright Infringement and Remedies), codified in part at 17 U.S.C. § 504.

Plaintiff obtained a default and moved for a default judgment as to liability and
damages. Plaintiff established liability for satellite piracy, cable piracy, and copyright
infringement by virtue of defendant's default. Plaintiff seeks damages only under the
satellite piracy damages provision, 47 U.S.C. § 605. Aggrieved parties may elect under
47 U.S.C. § 605(e)(3)(C)(I) to recover either actual damages or statutory damages.
Plaintiff did not allege actual damages and seeks instead statutory damages. Such
damages awards are in an amount "as the court considers just." 47 U.S.C.
§ 605(e)(3XC)(i)(II). Because such an award of damages is not for a sum certain, a

hearing was conducted pursuant to Fed. R. Civ. P. 55(b)(2)(B) to detennine ajust award
of damages.
I. Statutory Damages.

Damages for defendant's violation of the satellite piracy laws shall be detennined
by the court as follows:
(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
detennining 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 tban $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.
47 U.S.C. § 605(e)(3)(C).
Plaintiff elected to receive statutory damages. Plaintiff suggests in its brief in
support of motion for default judgment that an appropriate amount of damages is $35,000
per defendant. No evidence was received and the Court could find no public records
showing Jake's Pub and Casino is a legal entity. If there is no separate Jegal entity, there
is only one defendant in this action.
Plaintiff is seeking the maximum statutory damages of $1 0,000 plus an additional
$25,000 for defendant's willful conduct. I find that the appropriate amount of damages in
this case is $20,000.
II. Costs.

In all civil actions alleging satellite piracy, the court "shalt direct the recovery of
full costs, including awarding reasonable attorneys' fees to an aggrieved party who
prevails." 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff contends in its briefthat it is entitled to
filing fees and process server costs totaling $378 per defendant and attorney fees of
$2501.05 per defendant. Plaintiff is not seeking that "each" defendant pay half the fees
incurred. Instead, plaintiff is requesting an award of the total fees incurred against "each"
defendant, resulting in a double recovery of the costs and fees incurred herein.
I find that the appropriate amount of costs to be awarded is $350.00 filing fees,
$28.80 service fees, and $3940.05 attorneys costs and fees.

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Now, therefore,
IT IS ORDERED that judgment shan enter in favor of the plaintiff against the
defendant in the amount of $20,000 plus costs in the amount of $378.80 and attorneys
fees in the amount of $3,940.05 for a total judgment of $24,218.85.
Dated this l.!l:!ff:day of May, 2012.
BY TIlE COURT:

~ a. JJ.£~....-~.
CHARLEs'f.~NN
United States District Judge

ArrEST:

JOSEPH HAAS, CLERK.

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DEP TY

(SEAL)