United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on the Plaintiff's, J & J
Sports Productions, Inc., Amended Motion for Default Judgment
[ECF No. 28], brought pursuant to Federal Rule of Civil
Procedure 55(b)(2), and Motion for Entry of Default Judgment
[ECF No. 34].
Rule of Civil Procedure 55 governs the entry of default and
default judgment. Prior to obtaining a default judgment under
Rule 55(b)(2), there must be an entry of default as provided
by Rule 55(a). Am. Acceptance Co., LLC v. Goldberg,
No. 2:08-CV-9, 2008 WL 838813, at *2 (N.D. Ind. Mar. 28,
2008). In the Seventh Circuit, “well-pleaded
allegations of the complaint relating to liability are taken
as true.” Merrill Lynch Mortg. Corp. v.
Narayan, 908 F.2d 246, 253 (7th Cir. 1990) (quoting
United States v. DiMucci, 879 F.2d 1488, 1497 (7th
Cir. 1989)). If a plaintiff's allegations are well-pled,
a default judgment, as a general rule,
“‘establishe[s], as a matter of law, that
defendants [are] liable to plaintiff as to each cause of
action alleged in the complaint.'” Dundee
Cement Co. v. Howard Pipe & Concrete Prods., Inc.,
722 F.2d 1319, 1323 (7th Cir. 1983) (alterations in original)
(quoting Breuer Elec. Mfg. Co. v. Toronado Sys. of Am.,
Inc., 687 F.2d 182, 186 (7th Cir. 1982)); see also
O'Brien v. R.J. O'Brien & Assocs., Inc., 998
F.2d 1394, 1404 (7th Cir. 1993).
party moving for a default judgment must then establish
entitlement to the relief sought. In re Catt, 368
F.3d 789, 793 (7th Cir. 2004). While the well-pleaded
allegations of the complaint with respect to liability are
taken as true, the amount of damages must still be proved.
Gard v. B & T Fin. Servs., LLC, No. 2:12-CV-005,
2013 WL 228816, at *2 (N.D. Ind. Jan. 22, 2013) (citing
Wehrs v. Wells, 688 F.3d 886, 892 (7th Cir. 2012)).
Courts must ascertain with reasonable certainty the proper
amount to award as damages to the prevailing party, based
upon either an evidentiary hearing or from definite figures
contained in documentary evidence or in detailed affidavits.
In re Catt, 368 F.3d at 793; Dundee Cement
Co., 722 F.2d at 1323. Rule 55(b)(2) authorizes a court
to “conduct hearings or make referrals . . . when, to
enter or effectuate judgment, it needs to: (A) conduct an
accounting; (B) determine the amount of actual damages; (C)
establish the truth of any allegation by evidence; or (D)
investigate any other matter.” Fed.R.Civ.P.
Plaintiff's three-count Amended Complaint [ECF No. 15],
filed on August 7, 2017, alleges conversion and violations of
47 U.S.C.§§ 553 and 605, for which the Plaintiff
seeks statutory, compensatory, and punitive damages as well
as attorneys' fees. The Plaintiff alleges that the
Defendants violated 47 U.S.C. §§ 553 and 605 and
committed conversion through the unauthorized publication of
the Floyd Mayweather Jr. v. Manny Pacquiao Championship Fight
Program (the Program) at their commercial establishment on
May 2, 2015. The Plaintiff alleges that Defendant Anthony
Ramos specifically directed the employees of Big Time Barber
Shop to unlawfully intercept and broadcast the Program at Big
Time Barber Shop or that the actions of the employees of Big
Time Barber Shop are directly imputable to Defendant Anthony
Ramos by virtue of their acknowledged responsibility for the
actions of Big Time Barber Shop. (Am. Compl. ¶ 11.)
Plaintiff filed a Request for Entry of Default [ECF No. 22]
on October 24, 2017, which the Clerk entered on October 25,
2017 [ECF No. 23]. The Plaintiff subsequently filed an
Amended Motion for Default Judgment [ECF No. 28] on November
28, 2017, and a Motion for Entry of Default Judgment [ECF No.
34] regarding the same on February 7, 2019. In support of its
Amended Motion for Default Judgment, the Plaintiff submitted
a Memorandum of Points and Authorities in Support of
Plaintiff's Request for Damages [ECF No. 28-1], an
Affidavit of Investigator Leslie M. Mitchell [ECF No. 28-3],
Plaintiff's Affidavit in Support of Plaintiff's
Motion for Default Judgment [ECF No. 28-4], and an Attorney
Fees Affidavit [ECF No. 28-6].
Plaintiff's Amended Complaint adequately pleads that the
Defendants violated § 553 and § 605 [ECF No. 15].
In this Circuit, well-pleaded allegations of liability are
taken as true once default has been entered. Merrill
Lynch Mortg., 908 F.2d at 252. As such, the Court finds
that the Plaintiff has sufficiently pled liability in the
part of the Defendants. All that remains is to determine a
reasonable judgment. U.S. v. DiMucci, 879 F.2d 1488,
1497 (7th Cir. 1989).
plaintiff may recover actual or statutory damages under
§§ 553 and 605. 47 U.S.C. §§
553(c)(3)(A), (B); 605(e)(3)(C)(ii). In the Seventh Circuit,
however, a plaintiff may not recover damages under both
statutes. United States v. Norris, 88 F.3d 462, 468
(7th Cir. 1996) (“If Congress had intended § 605
to govern the interception of cable television programming
offered over a cable network, it would have had no reason to
enact § 553.”). These sections target two distinct
types of piracy, and courts within the Northern District of
Indiana have prohibited plaintiffs from simultaneously
seeking relief under both sections. Joe Hand Promotions,
Inc. v. Matijevich, No. 2:15-CV-93, 2017 WL 1090945, at
*3 (N.D. Ind. Mar. 22, 2017); G & G Closed Circuit
Events, LLC v. Aguirre, No. 3:14-CV-1884, 2016 WL
7338040, at *3 (N.D. Ind. Dec. 19, 2016). Therefore, the
Plaintiff requests that the Court only contemplate damages
pursuant to § 605. (Mem. of Points and Authorities in
Supp. of Pl.'s Request for Damages at 2, ECF No. 28-1.)
damages pursuant to § 605 may range from $1, 000 to $10,
000, “as the court considers just, ” 47 U.S.C.
§ 605(e)(3)(C)(i)(II), but the statute permits an
increase in damages of up to $100, 000 where “the
violation was committed willfully and for purposes of direct
or indirect commercial advantage or private financial gain,
” id. § 605(e)(3)(C)(ii). Plaintiffs may
also recover costs and attorney's fees. Id.
§ 605(e)(3)(B)(iii). The Plaintiff requests that the
Court award it the maximum statutory damages under § 605
and an enhanced damages award of three times the statutory
damages award. (Mem. of Points and Authorities in Supp. of
Pl.'s Request for Damages at 2.) The Plaintiff argues
that the maximum statutory damage award is appropriate and
that the Defendant exhibited willfulness in violating the
statute. (Mem. of Points and Authorities in Supp. of
Pl.'s Request for Damages at 7.)
Plaintiff has presented evidence that there were between 27
to 35 individuals who attended the viewing of the Program,
the Defendants charged a $10.00 cover fee to display the
Program, and there was damage to the Plaintiff's
business. The Plaintiff contends that the Defendants should
pay maximum statutory damages to incentivize future
lawbreakers appropriately and adhere to the intent of the
statute. (Id. at 3-4, 6.) Courts within the Northern
District of Indiana, however, have declined to grant maximum
statutory damages in similar cases. See, e.g., J
& J Sports Prods., Inc. v. Estrella, No.
2:14-CV-171, 2016 WL 1183202, at *3 (N.D. Ind. Mar. 28,
2016). Rather, the courts have relied upon the Seventh
Circuit's $80.00 per patron rate to calculate statutory
damages or the rate that would have been paid had the
Defendants legally contracted with the Plaintiff. J &
J Sports Prods., Inc. v. Molson, No. 2:17-CV-194, 2018
WL 345766, at *3 (N.D. Ind. Jan. 9, 2018); J & J
Sports Prods., Inc. v. Kotsopoulos, No. 1:13-CV-346,
2016 WL 1388072, at *2 (N.D. Ind. Apr. 8, 2016). Under this
standard, an appropriate calculation of statutory damages in
this case is $2, 800 based on the maximum of 35 patrons at
the $80 per patron rate. The Plaintiff submitted evidence
that the licensing fee for an establishment of the
Defendant's size would have been $3, 000.00. (Aff. in
Supp. of Pl.'s Mot. for Summ. J. at 3, ECF No. 28-4.)
Therefore, the Court finds no reason to award more than $3,
000.00 in statutory damages in this case and finds that an
award of $2, 800 is just.
the Plaintiff asks the Court to consider enhanced damages
three times that of the statutory damages award.
“[E]nhanced damages are analogous to punitive damages,
as they are awarded at the Court's discretion in cases
where a defendant's actions are willful and for the
purposes of financial gain.” J&J Sports
Productions, Inc. v. Garcia, 2013 WL 636707 at *4 (E.D.
Cal. Feb. 15, 2013). Courts consider a range of factors in
setting enhanced damages, including: “(1) the number of
violations; (2) defendant's unlawful monetary gains; (3)
plaintiff's actual damages; (4) whether defendant
advertised for the event; and (5) whether defendant collected
a cover charge on the night of the event.” Joe Hand
Promotions, Inc. v. Chapman, No. 2:15-CV-460, 2016 WL
3881121, at *4 (N.D. Ind. July 18, 2016) (quoting J &
J Sports Prods., Inc. v. McCausland, No. 1:10-CV-1564,
2012 WL 113786, at *4 (S.D. Ind. Jan. 13, 2012)). The
Defendants had multiple persons present to view the Program,
advertised the Program, and collected a cover charge from
patrons to view the Program. Based on the facts presented,
enhanced damages are therefore appropriate. There is no
suggestion, however, that the broadcast was part of a
“grand commercial scheme” that would merit
enhanced damages three times that of the statutory damages.
Joe Hand Promotions, Inc. v. Serrato, No.
2:13-CV-409-JTM-PRC, 2014 WL 5314573, at *5 (N.D. Ind. Oct.
16, 2014), report and recommendation adopted, No.
2:13 CV 409, 2014 WL 6617679 (N.D. Ind. Nov. 21, 2014)
(quoting Joe Hand Promotions, Inc. v. RLA Enter.,
LLC, No. 12-CV-1135, 2013 WL 308956, ...