United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION FOR DEFUALT JUDGMENT
William T. Lawrence, Judge.
cause is before the Court on the Plaintiff's Motion for
Default Judgment (Dkt. No. 17). The Court held a hearing on
the motion; the Defendants were given notice of the hearing
but did not appear. The Court, being duly advised,
GRANTS the motion for default judgment to
the extent and for the reasons set forth below. The Court
also GRANTS the Plaintiff's motion to
dismiss Defendant Minerva Soriano (Dkt. No. 23) and
DISMISSES the claims against her without
prejudice. Finally, the Court GRANTS the
Plaintiff's motion to withdraw its motion for default
judgment and replace it with an amended motion to correct
certain scriveners errors in the original (Dkt. No. 27).
The Clerk is directed to note at Docket Number 17
that it has been replaced with Docket Number 27.
of default was made against Defendant Soriano's Mexican
Restaurant, LLC (“Soriano's”) on November 22,
2016. Dkt. No. 13. Following entry of default, “the
well-pled allegations of the complaint relating to liability
are taken as true, but those relating to the amount of
damages suffered ordinarily are not.” Wehrs v.
Wells, 688 F.3d 886, 892 (7th Cir. 2012). “[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, on proper application by a party for
entry of default judgment, the court must conduct an inquiry
in order to ascertain the amount of damages with
“reasonable certainty.” Id.
alleged in the Complaint and established by the entry of
default, Plaintiff J&J Sports Productions, Inc.
(“J&J”) purchased the exclusive national
television distribution rights to Timothy Bradley v. Juan
Manuel Marquez, WBO Welterweight Championship Fight
Program (the “Program”) which was telecast
on October 12, 2013. This included all under-card bouts and
fight commentary in the Program. An investigator for J&J,
Jennifer Hart, visited Soriano's on the night of October
12, 2013, and observed the Program being broadcast at
Soriano's on three televisions to between 22 and thirty
customers. Soriano's did not obtain a license from
J&J to broadcast the Program. Rather, Soriano's
willfully intercepted and broadcast the Program without
authorization in violation of either the Communications Act
of 1934, Title 47 U.S.C. 605, et seq., or The Cable
& Television Consumer Protection and Competition Act of
1992, Title 47 U.S. Section 553, et seq.
noted above, J&J asserts in its Complaint that
Soriano's violated one of two statutory provisions: 47
U.S.C. § 553 or 47 U.S.C. § 605. “[T]he
interception of cable television programming as it travels
through the air is to be governed by § 605, while the
interception of cable television programming traveling over a
cable network (and specifically, the manufacture and
distribution of decoder boxes) is to be governed by §
553(a).” United States v. Norris, 88 F.3d 462,
468 (7th Cir. 1996). Under § 605(e)(3)(C)(i), a claimant
may elect actual damages or statutory damages. Statutory
damages for each violation of § 605 range from $1, 000
to $10, 000, as the court considers just. In addition,
enhanced damages are available where the court finds that the
violation was 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 such cases, the court
may in its discretion increase the award of damages by an
amount of not more than $100, 000 for each violation.
Likewise, under § 553(c)(3)(A), a claimant may elect
actual or statutory damages. Statutory damages for each
violation of § 553 range from $250 to $10, 000, as the
court considers just. 47 U.S.C. § 553(c)(3)(A)(ii). In
addition, enhanced damages are available where the court
finds that the violation was committed willfully and for
purposes of commercial advantage or private financial gain.
47 U.S.C. § 553(c)(3)(B). However, under § 553, the
upper limit for an increase in damages that a court may award
in its discretion is $50, 000. Id.
Plaintiffs have not provided any evidence to the Court
regarding the manner in which the Program was broadcast;
rather, they have been prevented from discovering this
information by the Defendants' failure to appear in this
action. Because the damages the Court ultimately considers
just under these circumstances fall within the parameters of
either statute, and because the entry of default has
established, as a factual matter, that either one or the
other statute has been violated, the Court need not
definitely determine the applicable statute.
first to actual or statutory damages, in its discretion, the
Court imposes a statutory damages award of $2, 200, which is
the amount that J&J would have been entitled to from
Soriano's for a license to broadcast the Program, based
on the investigator's estimate that Soriano's has an
occupancy capacity of between 100 and 150. See Dkt.
No. 11 (establishing licensing fees based on capacity). The
Court considers this award just in light of the small size of
the crowd (22-30 patrons), the lack of a cover charge, and
the fact that there is no evidence that Soriano's
promoted the Program in order to entice additional customers
to come to the restaurant. The Court has considered
J&J's argument that basing the statutory damages
award on the license fee “sends the message to
Defendants and other would-be signal pirates that it is
better to pirate Plaintiffs signal illegally than to obtain
the Program legally because if they are caught then they will
only have to pay what they were going to have to pay anyway
for the program.” Dkt. No. 27-4 at 3. However, rather
than supporting a larger statutory fee award, the Court finds
that that argument supports an award of enhanced fees, which
are akin to punitive damages that are meant, in large part,
as a deterrent.
now to J&J's request for enhanced damages, the Court
finds that enhanced statutory damages are appropriate. The
willfulness of Soriano's violation of the law in
broadcasting the Program is established both by the entry of
default, see Complaint at ¶ 13 (alleging
willfulness) and by common sense. See, e.g., Time Warner
Cable of N.Y. City v. Googies Luncheonette, Inc., 77
F.Supp.2d 485, 490 (S.D.N.Y. 1999) (“Signals do not
descramble spontaneously, nor do television sets connect
themselves to cable distribution systems.”). The
Complaint also alleges, and the default establishes, that it
was done “for purposes of direct or indirect commercial
advantage or private financial gain.” Accordingly, the
Court awards J&J enhanced damages of three times the
statutory damages, or $6, 600.
J&J requests an award of attorney's fees in the
amount of $2, 710.50 and costs in the amount of $425. The
Court finds these amounts to be reasonable and appropriately
supported. See Dkt. Nos. 17-8, 24, and 27-8.
Accordingly, the request for fees and costs is
Court will enter judgment ...