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J & J Sports Productions, Inc. v. Hernandez

United States District Court, S.D. Indiana, Indianapolis Division

November 13, 2017




         This 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”).[1] Defendant has not responded and the time for doing so has now passed. The Court GRANTS the motion for the reasons set forth below.


         Entry 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 certainty.” Id.


         Plaintiff 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.

         Defendant 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. ¶ 8.]

         J&J 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.

         J&J now seeks entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b).[2] J&J seeks the maximum amount of statutory damages ($10, 000); enhanced damages; $413.00 in costs; and $1, 618.50 in attorneys' fees.


         J&J's 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.”)).

         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; 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 violation.[3]

         We know 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.

         J&J 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 ...

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