Joe Hand Promotions, Inc. v. Flynt, No. 6:2015cv00056 - Document 15 (S.D. Ga. 2016)
Court Description: ORDER granting in part and denying in part 9 Motion for Default Judgment. The Court grants Plaintiff's motion for default judgment with respect to liability. The Court grants Plaintiff $1,200.00 for statutory damages and $1,545.00 f or attorney fees. Plaintiff's request for enhanced damages is DENIED. The Clerk is directed to enter a final judgment in favor of Plaintiff, terminate all deadlines and motions, and close the case. Signed by Judge J. Randal Hall on 01/07/2016. (thb)
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Joe Hand Promotions, Inc. v. Flynt Doc. 15 IN THE UNITED STATES SOUTHERN DISTRICT DISTRICT STATESBORO JOE HAND PROMOTIONS, COURT FOR THE OF GEORGIA DIVISION * INC., * * Plaintiff, * * v. CHESTER FLYNT, individually * and d/b/a CHESTEFIELD'S BAR & * 6:15-cv-56 * 'GRILL, * * Defendant, * * ORDER A man walks show the Evans into a bar and says versus Henderson to fight?" the owner, "could you The owner directs the bartender to call their television provider and ask how much the fight costs. costs around The provider informs the bartender that the fight $50 owner shows the bar, to view, which the fight and he and his in a small Georgia town, arts. owner agrees to pay. The friends gather at a quiet to enjoy a night of mixed martial Or so they affirm in this case. To Plaintiff, the above transaction is no joke. Plaintiff contends that Defendant's conduct is but a single occurrence of a larger trend of "serious punish erosion" and deter nationwide in "signal theft" Plaintiff's such conduct, sales. that (Doc. Plaintiff has 9-2 filed caused a at this 2). To action Dockets.Justia.com against Defendant attorneys' This default GRANTS seeking the fees under 47 U.S.C. case comes judgment. IN PART before For damages and §§ 553 and 605. the the statutory Court reasons on Plaintiff's discussed motion below, for the Court Chester Flynt Plaintiff's motion. I. Plaintiff maximum filed PROCEDURAL BACKGROUND this suit against Defendant individually and doing business as Chesterfield's Bar and Grill. The suit alleges that Defendant violated either 47 U.S.C. or § 605 Program") by showing 161: Evans never Plaintiff's motion, 8) . filed a responsive ("the (Compl., Doc. 1). pleading the clerk entered default (Doc. 9). and, on August 17th, and, upon on July 21, 2015. On August 14th, Defendant appeared filed a brief in opposition to Plaintiff's motion, requested a damages hearing, and the affidavits 2013. admitted Henderson Plaintiff then filed the present motion for entry of default judgment. 15, versus at Chesterfield's on June 15, 2013. Defendant (Doc. UFC § 553 of (Doc. 12). to ordering others and attached his present at affidavit Chesterfield's on In light of Defendant's affidavit, the Program via Dish Network, June which Plaintiff clarified in its reply brief that it was only pursuing liability under 47 U.S.C. § 605, which applies to unlawful interception of satellite transmissions. therefore forfeited its (Doc. § 553 14 at claim. 2-3). Plaintiff Plaintiff's motion has for default judgment on its claim under 47 U.S.C. for the Court's decision. II. A. ANALYSIS Requirements for Default Judgment Federal ability to to Pitts ex 1353, 1356 of a Ga. warrant be a Procedure default Pitts (S.D. must Civil determine rel. itself There Rule grant discretion in judgment whether v. Seneca 2004). the 55(b) sufficient 515 F.2d default, 1200, is 1206 Sports, in entering in a the Co. the should Inc., the 321 Court's court be entered. F. Supp. default default with does 2d not judgment. pleadings for the v. Houston Nat'l Bank, 1975).x A defendant, by his only deemed to have admitted the "plaintiff's well- pleaded allegations matters that are jurisdiction, Supp. vests Defendant's basis (5th Cir. governs judgment " [A] court and judgment entered." Nishimatsu Constr. (1) § 605 is now ripe of fact." essential Id. There are for the entry of (2) liability, and (3) damages. to the jurisdictional element, three default distinct judgment: Pitts, 321 F. 2d at 1356. With respect subject-matter personal jurisdiction jurisdiction, 1 In Bonner v. by under 28 virtue City of Prichard, U.S.C. of § the 1331. appearing 661 F.3d 1206, Court has As for and not 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the former Fifth Circuit's decisions prior to October 1, 1981. challenging Defendant personal is jurisdiction deemed to jurisdiction over him. Co. , 594 F.3d 852, Prudential Ins. service consented of to process, the Court's See Baragona v. Kuwait Gulf Link Transp. 854 Co., have or (11th Cir. 902 F.2d 897, 2010) 899 (citing (11th Cir. Sanderford v. 1990)). The remaining issues of liability and damages are discussed below. B. 47 U.S.C. § 605 1. Liability under 47 U.S.C. § 605 Under the default whether § 605. the alleged For judgment standard, facts purposes of state a liability, the Court must claim the for Court liability will factual allegations contained in the Complaint, by virtue of not Nishimatsu Constr. "To Co., establish establish that Defendants appearing, (1) did a not and patrons Promotions, (S.D. Ala. Inc. July 2, lO-cv-00085-KD-C, 2011)). (3) v. of Defendants pay their of consider the which Defendant, to have for the Defendants Neal, 2015) WL No. § 605, a admitted. plaintiff intercepted the commercial 2011 deemed under 515 F.2d at 1206. violation the transmission, is assess right (2) the the establishment.'" 14-cv-348-KD-C, (quoting Zuffa, 1539878, program, receive to displayed at *4 2015 LLC v. (S.D. ^must program Joe WL Hand 4039076 Al-Shaikh, Ala. to April No. 21, Additionally, showing the to hold Program at Defendant individually Chesterfield's, liable Plaintiff for must also establish that Defendant had the "right and ability to supervise the violations, such and that he activities." Joe 4:09-cv-100, 2010 2010) (quoting J 3490859, at *5 The the J Promotions, 1838067, Sports Fla. facts exclusive circuit commercial WL (M.D. admitted possessed closed & Hand had a strong financial the 27, right television *3 the v. Ga. No. May 3, 2009 Arboleda, following: distribute encrypted (Compl. allegations, Blanchard, in WL 2009)). to and v. (S.D. Inc. establish establishments. understands at Prods., Oct. Inc. interest the Plaintiff the Program satellite SI 14) . Program signal As was via the to Court distributed to cable and satellite television providers via a satellite signal. (Id. ) These licensees. eventual were providers, Instead, they sub-licensees. "various however, are (Id. entities are in a f 16). the not means The State the of relevant distribution actual of to sub-licensees Georgia" to whom Plaintiff granted the right to publicly show the Program. 1 sub (Id. 15) . Defendant is an owner, officer, Chesterfield's Bar and Grill, director, or shareholder of located in Metter, Georgia, and he was "the individual with supervisory capacity and control the activities 2013." (Id. 11 occurring 6-7, 9). within [Chesterfield's] Defendant or his agent on or June over 15, employee showed the Program at Chesterfield's Plaintiff's authorization. Defendant, however, (Id. on June 15 without Dish Network Ifl 18-19). argued that he relied on to charge him the correct price and did not know he violated any laws. (Doc. 12-1). "[Section 605], however, knowing violation." Kingvision Pay Per View, F. Supp. that 1481, [Defendant] rights Joe 2d from Hand at therefore [Plaintiff], *5 Ga. who Inc. (S.D. liable at (S.D. 1981). Ltd. v. Williams, "[T]he fact 1 remains did not obtain the proper commercial exhibition Promotions, 1823351 Program 1484 does not require a v. held these Beech, No. Ala. April 21, 47 U.S.C. § under Chesterfield's without rights exclusively." 13-346-KD-M, 2015). 605 for 2015 WL Defendant displaying authorization, and is the default judgment as to liability is GRANTED. C. Damages under 47 U.S.C. Section 605 permits either actual the Plaintiff's election. case, Plaintiff 22). With § 605(e) (3) (C) (i) (II) maximum of Additionally, willfully and 47 elected to respect $10,000 § 605 to U.S.C. pursue or statutory damages, § 605(e) (3) (C) (i) . statutory damages. statutory damages, at In this (Compl. 47 1 U.S.C. provides a minimum award of $1,000 and a for each violation of § 605(a). if the Court finds that a "violation was committed for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may § increase the award of 605(e) (3) (C) (ii) . had no reason to of this statute, not WL less "where believe that up ^the his to $100,000. violator acts was at *3 Joe constituted n.2 Hand Promotions, (N.D. 111. Oct. Inc. 7, 47 not a an award of damages may be reduced than $250.'" 5526524, U.S.C. But damages" aware and violation' *to a sum of v. Zani, 2013) § 605 (e) (3) (C) (iii)) . Reasonable attorneys' U.S.C. 2013 (quoting 47 fees are also available under § 605(e) (3) (B) (iii) . Plaintiff seeks the maximum amounts of $10,000 in statutory damages, (Compl. $100,000 M in 22-23). enhanced At the damages, damages and stage, attorneys' the Court fees. considers the admitted factual allegations and the affidavits filed during the briefing requested hearing a was attorneys' of this damages motion. hearing, unnecessary fees. The while and Based on Court would notes Plaintiff only evidentiary that argued increase material Plaintiff and not challenged by Defendant, Defendant that a Plaintiff's provided the Court by finds that the damages in this case are "for a sum which can by computation be made certain" without the need for a hearing. 55(b) (1) ; see Tara Productions, 449 F. App'x 908, 911-12 Inc. (11th Cir. v. Fed. R. Civ. Hollywood Gadgets, P. Inc., 2011). 1. Statutory Damages Plaintiff argues that the statutory maximum damages is warranted in this case. In support, district a multi-factor courts that have employed 7 of $10,000 Plaintiff cites analysis to determine the 7 (citing, appropriate statutory damages award. e.g., C-02-2768-SC, 2002))). In Universal Sports Networks, 2002 WL 31109707, fashioning a at *2 Inc. v. (N.D. statutory damages (Doc. Jimenez, Cal. award, 9-2 at Sept. these 18, courts have considered many factors including whether the defendant a repeat Jimenez, offender and the extent 2002 WL 31109707, adopt this *2. the financial gain. (Doc. "other Circuit—have is E.g., Plaintiff urges the Court to framework and to make deterrence a central its analysis. But at of No. factor in 9-2 at 8). courts—particularly ordered defendants those to pay, within as the Eleventh statutory damages, the amount of the license fee that they would have been charged if they had actually been authorized to show the program." Hand Promotions, 1838067, at approach *3 taken Inc. (S.D. by v. Ga. Blanchard, May 3, 2010). district courts in No. 4:09-cv-100, 2010 Joe WL The Court finds that the the Eleventh Circuit is appropriate in this case. According to Joe Hand Jr., Plaintiff's president, used a rate card to determine the licensing fee by reference (Doc. 9-2 Ex. investigator, capacity (Doc. 14, to the of Ex. 1). A) . for the Program licensed establishment's maximum occupancy. Additionally, estimated 150 Plaintiff persons, The E. Jay, Chesterfield's that has which rate Justin Defendant card indicates has that not Plaintiff's a maximum disputed. establishments with a maximum occupancy of 150 persons were charged $1,200 to 8 show the Program. therefore (Doc. awards 1 9-2, $1,200 in 8; Doc. 9-2, statutory Ex. damages 1) . The Court under 47 U.S.C. § 605(e)(3)(C)(i)(II). 2. Enhanced Damages Plaintiff enhanced also seeks damages. the Enhanced statutory maximum of damages are $100,000 available when in the violation was "committed willfully and for purposes of direct or indirect commercial U.S.C. § advantage or private 605(e) (3) (C) (ii) . violation occurred, To determine advantage See, J & J Sports Productions, 2486, 2013 courts event, WL or financial 228962, consider at "the of demonstration that *5 number the existence of advertisement gain." whether such 47 a many courts look to factors relating to the commercial e.g., financial the gain Inc. v. Pa. Jan. (M.D. of realized by event in defendants Kraynak, televisions a cover charge, the made 22, No. 2013 10-cv- (noting broadcasting sale of food or defendants' more defendants. money bar, or the drink, and a conducted additional business by illegally broadcasting the event"). Plaintiff, however, illogical and infringing activity," looking acts . argues to . . that enhanced inconsistent avoid, ." argues not (Doc. this damages because Court for that with at the a detection 9). For test very "[c]ommercial attract, 9-2 such for "act 9 of of pirates their reason, should follow other courts the "largely nature signal this is interception are unlawful Plaintiff that and the awarded not the promotion of the event." J, Inc. Tex. v. Al-Waha Enters., 9-2 at 10 Inc., (citing Entm' t by J & 219 F. Supp. 2d 769, 776 (S.D. 2002))). Plaintiff's direct gain" or preferred test all indirect out of the commercial statute. J & J Sports Prods., WL (Doc. 4512322, at Inc. *4 (N.D. reads advantage 47 v. but U.S.C. Bolano, Cal. § No. July conjunctive nature of the statute) . or "for purposes private financial 605 (e) (3) (C) (ii) ; 5:14-cv-03939-BLF, 24, 2015) of see 2015 (noting For this reason, the the Court finds that a multi-factor analysis of the commercial purposes is the proper inquiry. See Kraynak, Plaintiff argues that that its conduct direct or gain. Bare indirect 663 factual (2009) . Complaint's and advantage or Complaint also have without the Moreover, for claim's to gain access Ashcroft of direct gain." pleads to the specificity necessary to Plaintiff's Complaint 10 have admitted for v. Iqbal, not multiple 1 (Id. not U.S. the Program commercial 17). methods Program, 556 the indirect (Compl. are admitted showed of financial however, has or purposes private elements, Defendant financial alternatively or Defendant that purposes and advantage Accordingly, private used a willfully allegations. allegation "willfully may commercial of at *5. Defendant is deemed to committed recitals well-pleaded 662, was 2013 WL 228962, 1 The Defendant 18), but show a willful violation. contains no allegations concerning how Defendant advertised or otherwise promoted the Program. The evidence in argument. In his request "a couple of this occasion, from Dish he Network provide him the its reply program still ordered Dish drink or a stated has private cover were he relied argues that the of financial charges, or Network ordered Defendant's 14 at Dish or similar to In the 4) . In and Plaintiff's indirect through on conduct Network without direct gain Dish the Program (Doc. 12-1) . called Program evidence on (Doc. he at customers Defendant violation. admitted that that, order the fight. that Defendant's also employee to that and supports admitted who accepts willful Absent specials, Defendant instructed his and also friends," displayed authorization. advantage of Network Defendant and affidavit, Plaintiff constitutes essence, record correct price for the brief, via the commercial advertisements, conduct, the Court concludes that enhanced damages are not warranted. Plaintiff's own affidavits do not dislodge this conclusion. For instance, Plaintiff's investigator's affidavit acknowledges that Chesterfield's did not require a cover charge. Ex. A) . Plaintiff Chesterfield's. (Doc. also 14-2, submitted Ex. B). a Facebook (Doc. post specials, And, although the by But the Facebook post does not indicate the date it was made or the particular U.F.C. being broadcast. 14-1, fight Facebook post mentions drink another post indicates the same specials were offered 11 on the previous broadcast. day (Id.) when The presumably drink specials no U.F.C. appear to fight be a was regular happy-hour special and not a promotion tied to a U.F.C. program. This case is therefore lacking necessary to award enhanced damages. Inc. v. (N.D. No. Bolano, Cal. No. July 24, 3:14-cv-00001, 2014); Joe Hand the Court finds violation of 2015); 2014 at *5 that 47 See 5:14-cv-03939-BLF, additional J 2015 WL 3749148, Inc. (M.D. v. Sports WL 4512322, § Inc. 26, conduct v. (N.D. Miss. Becchetti, Pa. Aug. Defendant's U.S.C. at *3 evidence & J Joe Hand Promotions, Promotions, 2013 WL 4520638, the No. 2013). does Prods., at *4 Plummer, July 29, 12-cv-1242, Absent that, not constitute 605 (e) (3) (C) (i) (11) . The a Court therefore DENIES Plaintiff's request for enhanced damages. 3 . Attorneys' In Fees addition reasonable to attorneys' Plaintiff's fees counsel Plaintiff's Doc. expended litigating attorneys' costs. (Doc. 9-1). The fees. Court a 9 at reviewed reasonable for this case; U.S.C. 5-6; § to recover 605 (e) (3) (B) (iii) . as an Declaration exhibit of to Ronald D. counsel details the 4.6 hours he case, Plaintiff has 47 seeks declaration In it, this Plaintiff under filed motion. Reemsnyder, damages, resulting provided the therefore, fees in the amount of $1,545.00. 12 no affidavit in $1,545.00 evidence and finds in regarding the fees the Court awards attorneys' III. For the foregoing CONCLUSION reasons, Plaintiff's Motion Judgment is GRANTED IN PART and DENIED IN PART. for Default In particular, the Court GRANTS Plaintiff's motion for default judgment against Defendant with Plaintiff's $1,200.00 request and Plaintiff's Clerk Plaintiff, fees for Court all to in the the amount a FINAL deadlines in Court damages Plaintiff ENTER The damages enhanced awards DIRECTED terminate liability. statutory attorneys' the is to for request Accordingly, The respect and total JUDGMENT motions, of GRANTS amount of $1,545.00. is of in and DENIED. $2,745.00. favor CLOSE of the case, ORDER January, ENTERED at Augusta, Georgia, lis _2^ this / day 2016. HONORABLE J. RANDAL HALL UNITED/STATES DISTRICT JUDGE SOUTHERN 13 DISTRICT OF GEORGIA of
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