J&J Sports Productions Inc v. The Old School Way LLC et al

Filing 11

ORDER signed by Judge Rudolph T. Randa on 7/30/2015 GRANTING 9 Plaintiff's Motion for Default Judgment. Judgment to be entered in favor of J&J Sports for $1,000 in statutory damages and $535 in costs. (cc: all counsel, via mail to The Old School Way, Lee Allen Gaither) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J&J SPORTS PRODUCTIONS, Inc.,
Plaintiff,
-vs-

Case No. 15-C-449

THE OLD SCHOOL WAY, LLC, d/b/a
The Old School Way, and LEE ALLEN
GAITHER, individually and as member
of The Old School Way, LLC,
Defendants.
DECISION AND ORDER
J&J Sports Productions, Inc. alleges that a bar in Racine called The
Old School Way unlawfully televised a boxing match in violation of The
Communications Act of 1934, 47 U.S.C. § 605, et seq..1 J&J Sports moves for
default judgment against the bar and one of its owners, Lee Allen Gaither.
“[O]nce a default has been established, and thus liability, the plaintiff must
establish his entitlement to the relief he seeks.” In re Catt, 368 F.3d 789, 793
(7th Cir. 2004). Therefore, the Court must conduct an inquiry in order to
ascertain the amount of damages with “reasonable certainty.” Id.
An investigator hired by J&J Sports entered The Old School Way at

The complaint also alleges that the defendants violated The Cable & Television
Consumer Protection and Competition Act of 1934, 47 U.S.C. § 553, et seq.. J&J Sports
appears to have abandoned this claim. The Court will not address it here.
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9:04 p.m. on the evening of June 9, 2012. He observed that the fight was being
shown on a flat screen television behind the bar. The investigator stayed for
21 minutes and made three separate head counts of 12, 14, and 15 people. He
estimated that the total legal occupancy was 30 persons. There was no cover
charge to enter. ECF No. 10-2, Affidavit of Daniel Prinn.
The relevant damages provisions are 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 …; 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, …
(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.
§ 605(e)(3) (emphases added).
J&J Sports requests $10,000 in statutory damages pursuant to
§ 605(e)(3)(C)(i)(II) and an additional $100,000 pursuant to § 605(e)(3)(C)(ii).
Both requests are outsized and, quite frankly, ridiculous. The Old School Way
is a small establishment that was showing the fight on one television. There

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was no cover charge, and there is no evidence that the bar advertised the fight
as a way to attract patrons. Thus, while the Court must presume that the
defendants violated the statute, the minimum statutory amount of $1,000 is
just under the foregoing circumstances. § 605(e)(3)(C)(i)(II).
Regarding enhanced damages, the Court agrees that the defendants’
actions were willful because signals “do not descramble spontaneously, nor do
television sets connect themselves to cable distribution symbols.” Time
Warner Cable v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y.
1999). However, for the reasons already stated, the Court does not agree that
the defendants were acting “for purposes of direct or indirect commercial
advantage or private financial gain.” § 605(e)(3)(C)(ii).
It might be argued that the defendants showed the fight in an effort to
attract customers, or perhaps to keep customers in the bar longer than they
otherwise would have stayed, and therefore were acting for purposes of
commercial advantage. The Court does not agree, but even if this was an
appropriate inference, the Court would not exercise its discretion in the severe
manner advanced by J&J Sports. “[I]n awarding enhanced damages, courts
have borne in mind that ‘although the amount of damages should be an
adequate deterrent, [a single] violation is not so serious as to warrant putting
[someone] out of business.” Kingvision Pay-Per-View Ltd. v. Autar, 426 F.
Supp. 2d 59, 64 (E.D.N.Y. 2006). The minimum statutory award of $1,000 plus

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costs is more than enough to deter future violations.
Regarding costs, the statute provides that a court “shall direct the
recovery of full costs, including reasonably attorneys’ fees to an aggrieved
party who prevails.” § 605(e)(3)(B)(iii). However, a party seeking attorneys’
fees must “support that request with contemporaneous time records that
show, for each attorney, the date, the hours expended, and the nature of the
work done.” Kingvision, 426 F. Supp. 2d at 66. J&J Sports failed to provide
this information. Costs are documented and will be awarded, but not
attorneys’ fees.
J&J Sports’ motion for default judgment [ECF No. 9] is GRANTED.
The Clerk of Court is directed to enter judgment in favor of J&J Sports for
$1,000 in statutory damages and $535 in costs.

Dated at Milwaukee, Wisconsin, this 30th day of July, 2015.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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