United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL DISTRICT JUDGE.
Court has for its consideration plaintiff's Motion for
Default Judgment and Brief in Support (the
“Motion”) (Docs. 15, 16). For the reasons
discussed herein, the Court finds that the Motion should be
granted in part and denied in part.
Complaint alleges defendant Christina Miranda to be the
owner, operator, and manager of a commercial establishment,
La Revancha Bar, located in Tulsa, Oklahoma. (Doc. 2,
¶¶ 5-6). On April 12, 2014, “Toe to
Toe” Manny Pacquiao v. Timothy Bradley, II WBO
Welterweight Championship Fight Program, a television
program including the titled fight plus undercard bouts and
fight commentary (the “Program”) was broadcast.
Plaintiff alleges that it paid for and was granted exclusive
nationwide television rights to the Program, and plaintiff
expended substantial sums to market, advertise, promote,
administer and transmit the Program to customers nationwide,
including in Oklahoma. (Id., ¶ 9-10). The
Complaint further states that the defendant and/or her agents
knowingly and unlawfully intercepted, published, divulged and
exhibited the Program at the time of its transmission at
defendant's commercial establishment in Tulsa, Oklahoma,
and that their actions were in violation of 47 U.S.C. §
605 et seq. (Id., ¶ 13).
Clerk of Court granted plaintiff's Motion for Entry of
Default against defendant Christina Miranda on November 10,
2016. (Doc. 14). Plaintiff then moved for default judgment,
requesting a judgment in its favor, in addition to
attorneys' fees and costs. (Docs. 15, 16).
seeks maximum statutory damages against defendant under 47
U.S.C. § 605(e)(3)(C)(i)(II), which provides that an
aggrieved party “may recover an award of statutory
damages for each [unauthorized publication of an intercepted
broadcast] in a sum of not less than $1, 000 or more than
$10, 000, as the court considers just . . . . ” In
addition, plaintiff seeks maximum enhanced damages against
defendant pursuant to 47 U.S.C. § 605(e)(3)(C)(ii),
which states that “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.” In sum,
plaintiff requests $110, 000 in statutory damages against
defendant and also seeks attorneys' fees in the amount of
$1, 410.00 and costs in the amount of $560.59.
support of its request for maximum statutory and enhanced
damages, plaintiff has submitted the affidavit of its
President, Joseph M. Gagliardi (Doc. 16, Ex. 1) and the
affidavit of investigator Jasem Nassif (id., Ex. 2).
Nassif witnessed the pirated exhibition of the Program at La
Revancha Bar at 11:26 p.m. on April 12, 2014. At that time,
Nassif counted approximately 52 patrons at La Revancha.
(Id.). He observed the Program was displayed on
three television screens. (Id.) Nassif saw
“HBO PPV” displayed on the bottom right corner of
one of the television screens. (Id.). Nassif did not
see any advertisements or promotions at La Revancha on the
night of the event, but reports that two days later, he saw a
handwritten advertisement for the Program on the door.
(Id.). Nassif noted that the door had been open on
the night of April 12. According to the Rate Card for the
Program, the minimum fee to broadcast the Program in an
establishment with a capacity of up to 100 people was $2,
200. (Doc. 16, Ex. 1).
argues that an award of maximum statutory and enhanced
damages is appropriate in this case. (Doc. 16 at 10-14).
However, judges in this district have routinely declined to
award the maximum statutory and enhanced damages. See,
e.g., J & J Sports Prods., Inc. v. Rivas,
10-CV-760-GKF-TLW (N.D. Okla. Aug. 16, 2012) (awarding $2,
500 in statutory damages and $2, 500 in enhanced damages);
J & J Sports Prods., Inc. v. Samano,
13-CV-721-GKF-FHM (N.D. Okla. May 5, 2014) (awarding $2, 500
in statutory damages and $3, 000 in enhanced damages); J
& J Sports Prods., Inc. v. Ramirez, 14-CV-38-GKF-TLW
(N.D. Okla. July 2, 2014) (awarding $3, 000 in statutory
damages and $2, 500 in enhanced damages).
reasoning in Joe Hand Promotions, Inc. v. John M.
McLemore, 10-CV-772-CVE-TLW (N.D. Okla. Sept. 26, 2011)
is instructive. In that case, the establishment had a
capacity of 70; the sublicense fee would have been $875; no
cover fee was charged; the event was broadcast on three
television screens; and the plaintiff's investigator
counted 84 people at the establishment. Id. at 3.
Based on these facts, United States District Judge Claire V.
Eagan declined to award the requested maximum statutory and
enhanced damages and instead awarded the plaintiff $2, 500 in
statutory damages and $2, 500 in enhanced damages.
Id. at 3-4. This amount, the court reasoned, was
sufficient to both “compensate the plaintiff for any
fee that should have [been] paid by the defendants, ”
and to “sufficient[ly] punish defendants for the
illegal conduct and deter future violations.”
Court most recently awarded $5, 000 in statutory damages and
$10, 000 in enhanced damages in J & J Sports Prods.
Inc., v. Martinez, 16-CV-573-JED-FHM (N.D. Okla. Jan.
25, 2017). There, the event was broadcast on two television
screens, patrons were charged a $5 cover fee, and the
investigator reported a crowd of between 29 and 31 people at
the establishment. (Doc. 15 at 5). This Court found the same
damages award to be appropriate in a case where patrons were
charged a $10 cover fee, the program was broadcast on two
television screens, and there were approximately 10 people
present at the establishment. See J & J Sports Prods.
Inc. v. Cordoba, 16-CV-184-JED (N.D. Okla. Oct. 25,
compared the uncontested facts presented in this case with
those in the cases cited above, the Court finds that an award
of $5, 000.00 in statutory damages pursuant to §
605(e)(3)(C)(i)(II) and $7, 500.00 in enhanced damages
pursuant to § 605(e)(3)(C)(ii) will adequately and
justly compensate the plaintiff for any fee that should have
been paid by defendant and will sufficiently deter future
45 U.S.C. § 605(e)(3)(B)(iii), the Court “shall
direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who
prevails.” The Court has considered plaintiffs
attorneys' fees and costs submissions (Doc. 15, Ex. 3;
Doc. 15, Ex. 4) and finds that the requested amounts-$1,
410.00 for attorneys' fees and $560.59 for costs-are
reasonable and appropriate in light of the work expended as
indicated by the filings of record.
THEREFORE ORDERED that plaintiffs Motion for Default Judgment
and Brief in Support (Docs. 15, 16) are granted in part and
denied in part. The Court finds that damages totaling $12,
750.00, along with $1, 410.00 in attorneys' fees and
$560.59 in costs, is ...