J&J Sports Productions Inc v. Carbonero Mexican Grill Inc et al
Filing
12
MEMORANDUM OPINION AND ORDER granting 8 Motion for Default Judgment filed by J&J Sports Productions Inc. (Ordered by Judge Sam A Lindsay on 2/10/2016) (aaa)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
J&J SPORTS PRODUCTIONS, INC. as
Broadcast Licensee of the May 5, 2012
Floyd Mayweather, Jr. v. Miguel Cotto
Event,
Plaintiff,
v.
CARBONERO MEXICAN GRILL,
INC. individually d/b/a Carbonero
Mexican Grill a/k/a Carbonero Mexican
Restaurant; and BRISA MOJICA
individually d/b/a Carbonero Mexican
Grill a/k/a Carbonero Mexican Restaurant
a/k/a Briska Mujica,
Defendants.
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Civil Action No. 3:15-CV-1363-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Motion for Final Default Judgment, filed October 5, 2015.
After carefully considering the motion, record, and applicable law, the court grants Plaintiff’s
Motion for Final Default Judgment.
I.
Background
J&J Sports Productions, Inc., (“J&J” or “Plaintiff”) sued Carbonero Mexican Grill, Inc.
and Brisa Mojica (“Defendants”) in this action. Plaintiff sued Defendants for alleged violations
of 47 U.S.C. §§ 553 and 605. J&J contends that Defendants illegally intercepted the closed-circuit
telecast of the May 5, 2012 Floyd Mayweather, Jr. v. Miguel Cotto Event, (the “Event”) and
exhibited the Event in Defendants’ Establishment, Carbonera Mexican Grill a/k/a Carbonera
Mexican Restaurant, located at 2828 Webb Chapel Extension, Dallas, Texas 75220, as well as the
Memorandum Opinion and Order – Page 1
undercard and preliminary bouts to the Event. According to J&J, Defendants did not pay the
required licensing fee to J&J and did not receive J&J’s authorization to show the Event. The
Summons and Complaint were served on Defendants on June 13, 2015. The deadline for
Defendants to answer or otherwise respond was 21 days after service, which was July 4, 2015. As
July 4, 2015, was a Saturday and a holiday, Defendants should have filed an answer on July 6,
2015. See Fed. R. Civ. P. 12. Despite being served, Defendants, as of the date of this opinion and
order, have not served an answer or otherwise responded to Plaintiff’s Original Complaint
(“Complaint”).
Further, the court determines that Defendants are not infants, mentally
incompetent persons, or members of the United States military. The clerk of court entered a default
against Defendants on October 6, 2015.
J&J was the exclusive licensee through a licensing agreement, and Defendants did not have
authorization from J&J to show the Event at his establishment. Plaintiff possessed the proprietary
right to exhibit and sublicense the Event through a licensing agreement with the promoter of the
Event. As such, J&J was licensed to show the Event at closed-circuit locations throughout the
state of Texas, and the Event was legally available to a commercial establishment in Texas only if
the commercial establishment had an agreement with J&J. No agreement between J&J and
Defendants existed that would have allowed Defendant to broadcast the Event to patrons at
Defendants’ establishment.
On May 5, 2012, Defendants intercepted, or assisted in the
interception of, the transmission of the Event and broadcast or aired it for viewing by the patrons
of Defendants’ establishment. Plaintiff’s auditor observed the Event being telecast on two
televisions to 30 patrons at Defendants’ establishment.
Memorandum Opinion and Order – Page 2
II.
Discussion
A party is entitled to entry of a default by the clerk of the court if the opposing party fails
to plead or otherwise defend as required by law. Fed. R. Civ. P. 55(a). Under Rule 55(a), a default
must be entered before the court may enter a default judgment. Id.; New York Life Ins. Co. v.
Brown, 84 F.3d 137, 141 (5th Cir. 1996). The clerk of the court has entered a default against
Defendants.
Defendants, by failing to answer or otherwise respond to Plaintiff’s Complaint, has
admitted the well-pleaded allegations of the Complaint and is precluded from contesting the
established facts on appeal. Nishimatsu Constr. Co. v. Houston Nat’l Bank, 515 F.2d 1200, 1206
(5th Cir. 1975) (citations omitted). Based on the well-pleaded allegations of Plaintiff’s Complaint,
which the court accepts as true, and the record in this action, the court determines that Defendants
are in default.
Further, based upon the record, evidence, and applicable law, the court concludes that
Defendants have violated 47 U.S.C. §§ 553 and 605, that J&J is an aggrieved party under the
statute, and that it is entitled to statutory damages and reasonable attorney’s fees for Defendants’
statutory violations. Accordingly, the court determines that Defendants are liable to J&J in the
amount of $5,000, pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II), and J&J shall recover this amount
from Defendants. Further, the court determines that an additional $25,000 shall be awarded to
J&J, pursuant to 47 U.S.C. § 605(e)(3)(C)(ii), because the record reflects that Defendants’ actions
were willful and for the purpose of direct or indirect commercial advantage or private financial
gain. Moreover, the court determines that such damages are necessary to deter Defendants and
other commercial establishments and entities from pirating or stealing protected communications.
Memorandum Opinion and Order – Page 3
The court also concludes that J&J is entitled to reasonable attorney’s fees; however, the
court disagrees that reasonable attorney’s fees should be based on 33 1/3 percent of the damages
awarded. The court does not believe that such a fee is reasonable under the circumstances of the
case. The court believes that the lodestar method, that is, the number of hours reasonably expended
times a reasonable hourly rate, should apply in this case. The lodestar method adequately
compensates Plaintiff’s counsel, Mr. David M. Diaz, in this case for legal services performed.
Plaintiff’s counsel estimates that he has expended approximately four hours on this litigation and
believes that a blended hourly rate of $250 is reasonable for antipiracy litigation, considering his
firm’s experience with antipiracy cases. The court is familiar with Plaintiff’s counsel’s law firm
and agrees that an hourly rate of $250 is certainly reasonable under the circumstances of this case.
The court has awarded this hourly rate in prior cases handled by Mr. Diaz. Accordingly, the court
awards Plaintiff $1,000 as reasonable attorney’s fees in this case. The court declines to award
attorney’s fees for postjudgment work, including appellate matters, as the amount of such fees is
speculative and unknown. If additional hours are expended postjudgment, Plaintiff will have an
opportunity to seek such fees.
III.
Conclusion
For the reasons herein stated, the court grants Plaintiff’s Motion for Final Default
Judgment. As required by Federal Rule of Civil Procedure 58, the court will issue a final default
judgment against Defendants, jointly and severally, and in favor of J&J in the total amount of
$31,000, which consists of $5,000 as statutory damages; $25,000 additional statutory damages;
and $1,000 as reasonable attorney’s fees. Postjudgment interest will accrue on the judgment at the
applicable federal rate of .52 percent from the date of its entry until it is paid in full.
Memorandum Opinion and Order – Page 4
It is so ordered this 10th day of February, 2016.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 5
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