United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, 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. Timothy Bradley, Jr., WBO World
Welterweight Championship Fight Program”
(“the Program”) on April 9, 2016. (Doc. 2, 14).
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. An investigator hired by plaintiff
observed the Program being shown at the defendants'
establishment, Buchanan's Bar, even though the defendants
had not obtained a license for the program from the
plaintiff. (Doc. 15-2). The investigator, Nathan Alessi,
observed one large projection screen and took three head
counts of 20, 22, and 19 patrons. (Doc. 15-2 at 2). The
investigator reported having paid a cover charge of $5 to
enter the establishment. (Id. at 1). The
sub-licensing fee for an establishment the size of
Buchanan's Bar would have been $2, 000. (Doc. 15-1 at 3,
9). Plaintiff alleges that the defendants' actions were
in violation of 47 U.S.C. § 605, and plaintiff has
presented evidence that the illegal interception of the
program is not and cannot be mistakenly, innocently, or
accidentally intercepted. (See id. at 3-4).
were served by means of publication, as authorized by this
Court (Doc. 10), but they did not appear or file answers. On
August 7, 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,
575.00 in attorneys' fees and $674.64 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.
47 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. Bautista, No. 13-CV-719-JED-FHM, 2015
U.S. Dist. LEXIS 19745 (N.D. Okla. Feb. 19, 2015); 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). Instead, based on such factors as the number of
patrons at the establishment at the time of the broadcast and
the cover fee charged, the undersigned determines what amount
of damages will be 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.”
Miranda, 2017 WL 1987246 at *2 (quoting Joe Hand
Promotions, Inc. v. John M. McLemore, No.
10-CV-772-CVE-TLW (N.D. Okla. Sept. 26, 2011)).
case, the Court notes that these same defendants have
recently been found liable for similar conduct in J&J
Sports Productions, Inc. v. Chavez, et al., No.
17-CV-166-JED-JFJ (N.D. Okla. Oct. 19, 2018) and J&J
Sports Productions, Inc. v. Chavez, et al., No.
18-CV-155-CVE-JFJ (N.D. Okla. Aug. 30, 2018). In No.
17-CV-166, the undersigned adopted Magistrate Judge Jodi F.
Jayne's recommendation of $3, 540 in statutory damages
and $14, 000 in enhanced damages where 13 to 18 patrons were
present at the establishment, the sublicensing fee was $3,
000, and there was a $10 cover charge. Having compared the
uncontested facts presented in these two cases, the Court
finds and concludes that $4, 200.00 in statutory damages
pursuant to § 605(e)(3)(C)(i)(II) and $14, 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. 15-3, 15-4)
and finds that an award of $1, 575.00 for attorneys' fees
and $674.64 for costs is reasonable and appropriate in light
of the work expended as indicated by the filings of record.