United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PLAINTIFF'S MOTION FOR DEFAULT
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT .
cause is before the Court on Plaintiff's Motion for
Default Judgment [Dkt. No. 16] as to Defendant Maria
Monserrat Avalos Hernandez individually and d/b/a El Parral
Dancing Club (“Hernandez”). Defendant has not
responded and the time for doing so has now passed. The Court
GRANTS the motion for the reasons set forth
of default was made against Defendant Hernandez on January
19, 2017. [Dkt. No. 12.] Following a clerk's 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.” J&J Sports
Productions, Inc., v. The Old School Way, LLC, No.
15-c-449, 2015 WL 4623598, at *1 (E.D. Wisc. July 30, 2015)
(citing 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 to
ascertain the amount of damages with “reasonable
J&J Sports Productions, Inc. (“J&J”)
purchased the proprietary rights to distribute Manny
Pacquiano v. Juan Manuel Marquez, IV Welterweight Fight
Program (and the “under-card bouts” and
fight commentary), which was broadcast on December 8, 2012
(the “Fight”). After purchasing the rights to the
Fight, J&J entered into sublicensing agreements with
various commercial establishments (e.g., hotels, racetracks,
casinos, taverns, bars, restaurants, social clubs) to permit
public exhibition of the Fight.
Maria Monserrat Avalos Hernandez operates her business El
Parral Dancing Club (the “Club”) at 3830 North
Georgetown Road, Indianapolis, Indiana 46254. Private
investigator Thomas G. Newgent entered El Parral Dancing Club
on the night of December 8, 2012 and observed the exhibition
of the Fight. [Affidavit of Thomas G. Newgent, Dkt. No. 16-1
(“Newgent Aff.”).] Newgent purchased one Corona
beer while in the Club. During this time, Newgent observed a
crowd of between 27-30 people in the Club which had a
capacity of approximately 200-300 people. He observed two
televisions, one 45” and one 42-46”, both of
which were displaying the Fight; however, loud music was
playing while he was in the Club, which obstructed the audio
of the Fight. Defendant did not lawfully license the Fight
from J&J; rather, she unlawfully intercepted and
exhibited the Fight in the Parral Dancing Club. [Affidavit of
Joseph M. Gagliardi, President of J&J Sports, Dkt. No.
16-3 (“Gagliardi Aff.”) at ¶ 7.] Had
Defendant purchased a commercial sublicense to broadcast the
Fight, the fee would have been $8, 200. [Id. ¶
filed this suit against the Defendant asserting claims for
violations of the Communications Act of 1934, 47 U.S.C.
§ 605 and the Cable & Television Consumer Protection
and Competition Act of 1992, 47 U.S.C.§ 553 on the
grounds that Defendant did not obtain from J&J a license
to exhibit the Fight. J&J then served Hernandez with a
summons and the complaint on March 24, 2015 [see
Dkt. No. 11]. She has not responded to J&J's
Complaint or filed an appearance in the case. On January 19,
2017, the Clerk entered default against the Hernandez.
now seeks entry of default judgment pursuant to Federal
Rule of Civil Procedure 55(b). J&J seeks the
maximum amount of statutory damages ($10, 000); enhanced
damages; $413.00 in costs; and $1, 618.50 in attorneys'
suit is based on 47 U.S.C. §§ 553 and 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). J&J
acknowledges that it cannot recover duplicative damages under
both sections 553 and 605; thus, it has pled its
claims in the alternative. See J&J Sports Prods.,
Inc. v. Gonzales, 2013 WL 4777209, *2 (S.D. Ind. Sept.
5, 2013) (citing J&J Sports Prods. v. Aguilera,
2010 WL 2362189 (N.D. Ill. 2010) (“[A]lthough the
precise means of transmission has not been determined, under
the circumstances of this case, where Plaintiff was deprived
of the opportunity to conduct discovery regarding the
transmission at issue because of Defendants' failure to
appear or defend in this action, Plaintiff should not suffer
the resulting prejudice.”)).
§ 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; the amount awarded
is based on the court's discretion to arrive at a just
amount to compensate for the violation. 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 use its discretion to increase the award of damages by an
amount of not more than $100, 000 for each
that had Defendant properly obtained a license to legally
show the Fight, she would have paid J&J the amount of $8,
200 based on the capacity of the establishment, between
200-300 persons. [Gagliardi Aff. ¶ 8.] Although
J&J's actual damages are readily ascertainable in the
amount of $8, 200, it seeks a statutory award of $10, 000 as
a deterrence measure. Because actual damages are meant to
make Plaintiff whole and not punish or deter, we exercise our
discretion to award $8, 200 as a just amount to compensate
for the violation.
also requests enhanced damages of $30, 000. [Dkt. No. 16 at
11 (Plaintiff requests that the court “award enhanced
damages three times the statutory damages award” of
$10, 000.).] Courts have considered several factors when
determining whether and how much enhanced damages are
appropriate, including: “(1) the number of violations;
(2) defendant's unlawful monetary gains; (3)
plaintiff's significant actual damages; (4) whether
defendant advertised for the event; and (5) whether defendant
collected a cover charge on the night of the event.”
J&J Sports Prods., Inc. v. Gonzalez, 2013 WL
4777209, *3 (S.D. Ind. Sept. 5, 2013) (quoting J&J
Sports Prods, Inc. v. Aguilera, 2010 WL 2362189 (N.D.
Ill. June 11, 2010)). Courts also consider “the
deterrent effect of the award, with an eye toward imposing ...