J&J Sports Productions Inc v. ADF Management Inc et al

Filing 19

MEMORANDUM OPINION AND ORDER granting 17 Motion for Final Default Judgment. (Ordered by Judge Sam A Lindsay on 3/22/2016) (twd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
J&J SPORTS PRODUCTIONS, INC. as
Broadcast Licensee of the June 9, 2012
Manny Pacquiao v. Timothy Bradley Event,
Plaintiff,
v.
ADF MANAGEMENT, INC. individually
and d/b/a Pandora’s Men’s Club; and
CHRISTOPHER MULVANEY
individually and d/b/a Pandora’s Men’s
Club,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:15-CV-1976-L

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Motion for Final Default Judgment, filed February 11, 2016.
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 ADF Management, Inc. and

Christopher Mulvaney (“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 June 9, 2012 Manny Pacquiao v. Timothy Bradley Event, (the
“Event”) and exhibited the Event in Defendants’ Establishment, Pandora’s Men’s Club, located at
10649 Harry Hines Boulevard, Dallas, Texas 75220, as well as the undercard and preliminary
bouts to the Event. The main event and undercard and preliminary fights for the Event included
the following bouts: Timothy Bradley v. Manny Pacquiao; Randall Bailey v. Mike Jones;
Memorandum Opinion and Order – Page 1

Guillermo Rigondeaux v. Teon Kennedy; Jorge Arce v. Jesus M. Rojas; Mikael Zewski v. John
Ryan Grimaldo; Ernie Sanchez v. Wilton Hilario; Andrew Ruiz v. Tyler Lawson; and Jesse Hart
v. Manuel Eastman. 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 Defendant ADF Management, Inc. (“ADF”) on October 15, 2015; and on Defendant
Christopher Mulvaney (“Mulvaney”) on October 17, 2015. The deadline for Defendants to answer
or otherwise respond was 21 days after service, which was November 5, 2015 for ADF; and
November 7, 2015 for Mulvaney. See Fed. R. Civ. P. 12. As November 7, 2015, was a Saturday,
Defendant Mulvaney should have filed an answer on November 9, 2015. See Fed. R. Civ. P.
6(a)(1)(C). 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”).
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 Defendants to broadcast the Event to patrons at
Defendants’ establishment.

On June 9, 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 (specifically the bout between
Jorge Arce and Jesus M. Rojas) being telecast on seven televisions to an average of 33 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, jointly and severally, 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 .67 percent from the date of its entry until it is paid in full.

Memorandum Opinion and Order – Page 4

It is so ordered this 22nd day of March, 2016.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 5