United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DQWDELL UNITED STATES DISTRICT JUDGE.
Court has for its consideration plaintiff's Motion for
Default Judgment and Brief in Support (“Motion”)
(Doc. 14, 15). For the reasons discussed herein, the Court
finds that the Motion should be granted, as set forth below.
alleges that defendants unlawfully intercepted and exhibited
Manny Pacquiao v. Jesse Vargas WBO World Welterweight
Championship Fight Program (“the Program”)
on November 5, 2016. (See Doc. 2; Doc. 15).
Plaintiff had exclusive nationwide commercial distribution
rights to the Program. The interstate transmission of the
Program was encrypted and available only to commercial
establishments that entered into a sub-licensing agreement
with the plaintiff. Michael Morelli, an investigator hired by
plaintiff, observed the Program being shown at the
defendants' establishment known as La Iguana Night Club,
even though the defendants had not obtained a license for the
Program from the plaintiff. Morelli was charged a $15 cover
charge to enter the bar. He observed the Program on three
televisions: a big screen television on the east wall facing
a dance floor, a 39” television hanging on the north
wall, and another television of approximately the same size
on the west wall near the bathrooms. The bar has a capacity
for 60 patrons. While there, Morelli did two head counts of
50 patrons each. (Doc. 15-2). The sub-licensing fee for an
establishment the size of La Iguana Night Club would have
been $2, 000. (Doc. 15-1 at 9).
alleges that the defendants' actions were in violation of
47 U.S.C. § 605. Plaintiff has presented evidence that
the illegal interception of the program is not and cannot be
mistakenly, innocently, or accidentally intercepted.
(See Doc. 15-1 at 3-4, ¶ 9).
defendants were served by publication pursuant to an Order of
the Court (Doc. 10), but did not appear or file answers. On
April 11, 2018, the Court Clerk entered a default against
defendants. (Doc. 13). Plaintiff now moves for default
judgment and requests $110, 000 against defendants plus $1,
650.00 in attorneys' fees and $523.44 for costs incurred.
seeks maximum statutory damages against defendants 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 . . . . ”
Plaintiff also seeks maximum enhanced damages against the
defendants pursuant to the statute, which in part provides:
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.
U.S.C. § 605(e)(3)(C)(ii). In sum, plaintiff requests
$110, 000 in damages against the defendants.
undersigned has typically declined to award the maximum
damages in similar cases. See, e.g., J & J Sports
Prods., Inc. v. Cordoba, No. 16-CV-184-JED-FHM, 2016 WL
6238583 (N.D. Okla. Oct. 25, 2016); J & J Sports
Prods., Inc. v. Martinez, No. 16-CV-573-JED-PJC, 2017 WL
374472 (N.D. Okla. Jan. 25, 2017); and J & J Sports
Prods., Inc. v. Miranda, No. 16-CV-188-JED-TLW, 2017 WL
1987246 (N.D. Okla. May 12, 2017). All of those cases cited
Joe Hand Promotions, Inc. v. John M. McLemore, No.
10-CV-772-CVE-TLW (N.D. Okla. Sept. 26, 2011), in which
eighty-four people were counted at the establishment at the
time of the broadcast; no cover fee was charged; and the
event was broadcast on three television screens. Id.
at 3. 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. That amount, the
court reasoned, was sufficient both to “compensate the
plaintiff for any fee that should have [been] paid by the
defendants, ” and to “punish defendants for the
illegal conduct and deter future violations.”
compared the uncontested facts presented in this case to
similar cases, the Court finds and concludes that an award of
$7, 000.00 in statutory damages pursuant to §
605(e)(3)(C)(i)(II) and $10, 000.00 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 the defendants and will sufficiently deter
future similar violations.
47 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 plaintiff's
attorneys' fees and costs submissions (Doc. 16-4, 16-5)
and finds that an award of $1, 650.00 for attorneys' fees
and $523.44 ...