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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`JOE HAND PROMOTIONS, INC.,
`Plaintiff,
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`v.
`VITA GLOVER and PHOENIX CIGARS, LLC
`d/b/a PHOENIX CIGAR LOUNGE,
`Defendants.
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`OPINION AND ORDER
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`Civil Action No.
`1:20-cv-02119-SDG
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`Before the Court is Plaintiff’s Application for Default Judgment Against
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`Defendants [ECF 30]. For the following reasons, the motion is GRANTED.
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`I.
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`Background
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`Plaintiff Joe Hand Promotions, Inc. (Joe Hand) initiated this action on May
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`18, 2020, against Defendants Bernard Hamilton, Vita Glover, and Phoenix Cigars,
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`LLC.1 On June 23, 2020, Defendants moved to dismiss.2 On January 25, 2021, the
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`Court entered an order granting the motion in part and denying it in part.3 It
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`dismissed the claims against Hamilton, but declined to dismiss the claims against
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`1 ECF 1.
`2 ECF 13.
`3 ECF 22.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 2 of 17
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`the other two Defendants.4 The Court directed them to respond to the Complaint,
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`and gave Joe Hand leave to file an amended pleading.5
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`On January 29, 2021, Joe Hand filed its Amended Complaint.6 Joe Hand
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`specializes in distributing and licensing sporting events to commercial and non-
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`residential establishments.7 It had exclusive rights to commercially license the
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`audio-visual broadcast of the fight Manny Pacquiao v. Keith Thurman on July 20,
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`2019 (the Program).8 Defendant Vita Glover is the controlling manager of
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`Defendant Phoenix Cigars, LLC d/b/a Phoenix Cigar Lounge (the Lounge).9
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`Glover and the Lounge purportedly took steps to avoid licensing the Program,
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`instead obtaining it “through an unauthorized cable signal, satellite signal, and/or
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`internet stream” for broadcast at the Lounge.10 Glover was allegedly serving
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`Id. at 12–13.
`4
`Id.
`5
`6 ECF 24.
`Id. ¶ 4.
`7
`Id. ¶ 5.
`8
`9
`Id. ¶ 7.
`10 Id. ¶ 11. See also id. ¶¶ 14–16.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 3 of 17
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`customers during the illicit display.11 Joe Hand contends that Glover “had the right
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`and ability to supervise the display” and financially benefited from it.12
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`Joe Hand asserts causes of action for cable and satellite piracy in violation
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`of 47 U.S.C. §§ 553 and 605 (Count I); and copyright infringement in violation of
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`17 U.S.C. §§ 106 and 501 (Count II).13 It seeks statutory damages and attorneys’
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`fees, interest, and costs.14 On February 10, 2021, Defendants again moved to
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`dismiss.15 On June 17, the Court denied the motion, directed Glover to answer the
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`Amended Complaint, and directed the Lounge to appear through counsel and
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`answer the amended pleading.16 Glover and the Lounge did none of these things,
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`so Joe Hand moved for a clerk’s entry of default on July 9.17 The clerk entered the
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`default the same day,18 and Joe Hand moved for default judgment on August 3.19
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`It seeks damages in the amount of $260,000.00, as well as attorneys’ fees of
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`
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`11 Id. ¶ 20.
`12 Id. ¶¶ 8–9, 20.
`13 ECF 24, at 6–8.
`14 Id. at 8.
`15 ECF 25.
`16 ECF 28.
`17 ECF 29.
`18 July 9, 2021 D.E.
`19 ECF 30.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 4 of 17
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`$4,232.50 and costs.20 Glover and the Lounge belatedly opposed the motion on
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`August 27, with Glover again purporting to represent the Lounge.21
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`II. Applicable Law
`a.
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`Default Judgments
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`Rule 55 governs default judgments. When a defendant “has failed to plead
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`or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
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`must enter the party’s default.” Fed. R. Civ. P. 55(a); Nishimatsu Constr. Co., Ltd., v.
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`Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (entry of default judgment
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`in favor of plaintiff warranted only if there exists “a sufficient basis in the
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`pleadings for the judgment entered”).
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`A default entered pursuant to Rule 55(a) constitutes an admission of all well
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`pleaded factual allegations contained in a complaint. Beringer v. Hearshe, Kemp,
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`LLC, No. 1:10-cv-1399-WSD-ECS, 2011 WL 3444347, at *2 (N.D. Ga. Aug. 8, 2011)
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`(citing Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005))
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`(additional citations omitted). When considering a motion for the entry of default
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`judgment, “a court must investigate the legal sufficiency of the allegations and
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`ensure that the complaint states a plausible claim for relief.” Functional Prod.
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`20 Id. ¶¶ 5–6; ECF 30-1, ¶ 7.
`21 ECF 31.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 5 of 17
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`Trading, S.A. v. JITC, LLC, No. 1:12-cv-0355-WSD, 2014 WL 3749213, at *3 (N.D. Ga.
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`July 29, 2014). See also Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863
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`(11th Cir. 2007). This includes a review of any affidavit or declaration submitted
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`by the plaintiff. Frazier v. Absolute Collection Serv., Inc., 767 F. Supp. 2d 1354, 1362
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`(N.D. Ga. 2011). Further, a defendant in default does not admit allegations relating
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`to the amount of damages. Id. at 1365. But when the amount is “for a sum certain
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`or a sum that can be made certain by computation,” the Court need not conduct a
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`hearing before awarding damages. Fed. R. Civ. P. 55(b).
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`b.
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`Joe Hand’s Claims
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`Federal law prohibits intercepting or receiving (or assisting in intercepting
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`or receiving) a “service offered over a cable system, unless specifically authorized
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`to do so.” 47 U.S.C. § 553(a)(1). It also generally prohibits the unauthorized
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`interception and publication of radio communications, and unauthorized receipt
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`of such communications for one’s own benefit. Id. § 605(a). Private rights of action
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`exist for violations of these laws. Id. §§ 553(c), 605(e). The owner of a copyrighted
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`work has the exclusive ability to authorize its public display. 17 U.S.C. § 106(5).
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`The holder of that exclusive right can sue for infringement. Id. § 501(b).
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`In addition to this primary liability, in BUC International Corp. v. International
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`Yacht Council Ltd., the Eleventh Circuit indicated that there can be secondary
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 6 of 17
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`liability, noting that “vicarious and contributory copyright infringement are well
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`established principles derived from common law.” 489 F.3d 1129, 1138 n.19
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`(11th Cir. 2007). The court described contributory infringement as causing or
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`contributing of another’s infringing conduct. Id. Vicarious infringement, by
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`contrast, “arises when the defendant profits directly from the infringement and
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`has a right and ability to supervise the direct infringer.” Id. (cleaned up). Nafra
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`Worldwide, LLC v. Home Depot U.S.A., Inc., 2013 U.S. Dist. LEXIS 201841, at *12
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`(N.D. Ga. Aug. 29, 2013) (Totenberg, J.) (concluding that, “[t]o subject a corporate
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`defendant to individual liability for copyright infringement, a party must show
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`that the defendant had the ability to supervise the copyright-infringing-activity
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`and had some financial stake in it.”) (citing S. Bell Tel. & Tel. v. Assoc. Tel. Directory
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`Publishers, 756 F.2d 801, 811 (11th Cir. 1985)).
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`III. Discussion
`a.
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`Joe Hand is entitled to default judgment against the Lounge.
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`The Court has made clear several times that, while Glover is entitled to
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`represent herself, the Lounge must be represented by counsel authorized to
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`practice in this Court.22 A corporate entity can only appear through legal counsel,
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`and cannot appear pro se or be represented by a pro se party. Palazzo v. Gulf Oil
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`22 See generally ECF 22, at 7–8, 12–13; ECF 28, at 5–6, 8.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 7 of 17
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`Corp., 764 F.2d 1381, 1385 (11th Cir. 1985) (“The rule is well established that a
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`corporation is an artificial entity that can act only through agents, cannot appear
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`pro se, and must be represented by counsel.”); LR 83.1(E)(2)(b)(I), NDGa
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`(“[A] corporation may only be represented in Court by an attorney . . . .”). To date,
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`no counsel has appeared on behalf of the Lounge despite it having had substantial
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`time to obtain an attorney.23 The Lounge is therefore in violation of this Court’s
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`Orders and the Local Rules. And, the Court has already held that the well-pleaded
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`allegations of the Amended Complaint state a claim against the Lounge.24
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`Accordingly, Joe Hand is entitled to entry of default judgment against it.
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`b.
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`Joe Hand is entitled to default judgment against Glover.
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`Despite having been properly served, being twice directed to answer, and
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`having had substantial time to do so, Glover has consistently failed to answer the
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`Amended Complaint.25 In her untimely response to Joe Hand’s motion for default
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`judgment, Glover finally attempts to defend against the pleading’s allegations by
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`arguing ignorance of the law: “[the Lounge] had no knowledge that they were to
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`23 See generally Docket.
`24 ECF 28.
`25 ECF 10; ECF 22, at 13; ECF 28, at 8.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 8 of 17
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`obtain a commercial license prior to airing” the Program.26 She also disclaims any
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`personal involvement in the infringing activity.27
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`It is now far too late for Glover to try to answer the Amended Complaint
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`without showing good cause or excusable neglect for her failures to timely do so
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`and to comply with the Court’s orders. Fed. R. Civ. P 6(b)(1). The clerk has entered
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`default and Glover has not sought to set that default aside. Fed. R. Civ. P. 55(c).
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`Nor does her response to the motion for default judgment provide good cause for
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`the Court to do so. Id. She had more than ample time to comply with the Court’s
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`Orders and answer the Amended Complaint but did not.
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`As with the Lounge, the Court has already held that the well-pleaded
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`allegations of the Amended Complaint state a claim against Glover.28 And she
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`admits all of the well-pleaded allegations in the Amended Complaint by virtue of
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`her default. Beringer, 2011 WL 3444347, at *2.
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`i.
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`Count I
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`To show violations of these statutes, Joe Hand must show the following
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`elements: that Defendants “(1) intercepted or received the Program, (2) did not
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`26 See generally ECF 31.
`27 Id. at 4–6, 9.
`28 ECF 28.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 9 of 17
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`pay for the right to receive or to exhibit the Program, and (3) displayed the
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`Program to patrons of its commercial establishment.” Joe Hand Promotions, Inc. v.
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`Roussell, No. 1:18-cv-3752-MHC, 2019 WL 5273962, at *2 (N.D. Ga. Jan. 30, 2019).
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`See also J & J Sports Prods., Inc. v. Khin, No. 1:15-cv-3180-MHC, 2016 WL 9046677,
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`at *3 (N.D. Ga. Mar. 31, 2016); J & J Sports Prods., Inc. v. Just Fam, LLC, No. 1:09-cv-
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`03072-JOF, 2010 WL 2640078, at *2 (N.D. Ga. June 28, 2010).29 Courts have
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`additionally held that “willfulness under section 605 is established by the fact that
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`an event is broadcast without authorization.” J&J Sports Prods., Inc. v. Space
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`Millennium 2013, LLC, No. 1:15-cv-1768-MHC, 2015 WL 13357907, at *3 (N.D. Ga.
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`Sept. 17, 2015); Joe Hand Promotions, Inc. v. Blanchard, No. 4:09-cv-100, 2010 WL
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`1838067, at *4 (S.D. Ga. May 3, 2010). Joe Hand has established these elements.30
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`29 The Court notes there is a circuit split concerning whether §§ 553 and 605 cover
`both satellite transmissions and cable programming transmitted over a cable
`network. See Joe Hand Promotions, Inc. v. Jones, No. 1:18-cv-3702-TCB, 2019 WL
`5280971, at *2 (N.D. Ga. Apr. 18, 2019) (following reasoning from Third and
`Seventh Circuits and holding “§ 605’s plain language prohibits commercial
`establishments from intercepting and broadcasting satellite programming,
`while § 553 addresses interceptions that occur through a cable network”). The
`Eleventh Circuit has yet to address this issue. Id. But, as noted by the Court in
`Jones, the difference is immaterial for the purposes of ruling on this motion for
`default judgment.
`30 ECF 24, ¶¶ 11–16.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 10 of 17
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`ii.
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`Count II
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`To show copyright infringement, a plaintiff must establish (1) ownership of
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`a valid copyright and (2) that the defendant infringed an exclusive right granted
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`by the Copyright Act. 17 U.S.C. § 501; Architects Collective v. Pucciano & English,
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`Inc., 247 F. Supp. 3d 1322, 1337 (N.D. Ga. 2017). “Intent or knowledge is not an
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`element of copyright infringement” because it is a strict liability offense. Thornton
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`v. J Jargon Co., 580 F. Supp. 2d 1261, 1275 n.6 (M.D. Fla. 2008) (quoting Fitzgerald
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`Publ’g Co. v. Baylor Publ’g, Co., 807 F.2d 1110, 1113–14 (2d Cir. 1986)). Joe Hand
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`meets both elements. It had a valid copyright and Defendants infringed it by
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`showing the Program without permission. 17 U.S.C. §§ 106(3), (4).31
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`Entry of default judgment against Glover on both Counts is appropriate.
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`c.
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`Damages
`i.
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`Count I
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`For the violations of 47 U.S.C. § 553 and 47 U.S.C. § 605 alleged in Count I,
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`Joe Hand seeks statutory and enhanced damages. Under Section 553, statutory
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`damages from $250 to $10,000 may be awarded for each violation. 47 U.S.C.
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`§§ 553(c)(3)(A)(ii) Where there has been a willful violation for commercial
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`advantage, the Court may increase the statutory award up to $50,000. Id.
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`31 ECF 6; ECF 16-3; ECF 24, ¶ 16.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 11 of 17
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`§ 553(c)(3)(B). If the violator was not aware that its acts constituted a violation, the
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`Court can reduce the award to not less than $100. Id. § 553(c)(3)(C).
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`Under Section 605, the Court may award statutory damages from $1,000 to
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`$10,000. Id. § 605(e)(3)(C)(i)(II). For willful violations for commercial advantage,
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`the Court may increase the damages up to $100,000. Id. § 605(e)(3)(C)(ii). If the
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`violator was unaware that its acts were a violation, the Court may reduce the
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`damages to not less than $250. Id. § 605(e)(3)(C)(iii). Where a court “determines
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`that a defendant’s conduct has violated both sections 553 and 605 of the
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`Communications Act, a plaintiff may recover damages under only one of those
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`sections.” Just Fam, 2010 WL 2640078, at *2. See also J & J Sports Prods., Inc. v.
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`Herbelaine, Inc., No. 1:15-cv-1595-CC, 2016 WL 9045967, at *4 (N.D. Ga. Feb. 8, 2016)
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`(“Recovery under both §§ 553 and 605 is not permissible.”). Thus, whether
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`Defendants here violated Section 553 or Section 605 is immaterial.
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`1.
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`Statutory damages
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`Although Joe Hand seeks a fixed sum of damages—the statutory maximum
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`available—the Court has substantial discretion in setting the appropriate amount.
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`Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 852 (11th Cir. 1990)
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`(stating that courts have “wide latitude . . . in awarding statutory damages.”).
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`Here, the Program was purportedly displayed on two television sets in a facility
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 12 of 17
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`with a maximum capacity of about 70 people.32 There were never more than 25
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`people in attendance at the same time.33 The Lounge promoted its display of the
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`Program in advance, presumably to attract customers, but did not charge a cover
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`to patrons.34 Nor is there any indication that the Lounge increased the prices it
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`charged for food, beverages, or cigars during the broadcast.35 The sublicensing fee
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`Joe Hand would have charged in advance is $1,475.36 Given these facts, the Court
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`finds an adequate statutory damage award to be that sublicense fee.
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`2.
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`Enhanced damages
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`Joe Hand also seeks enhanced damages. “Under both [Section 553 and 605],
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`the district court is given discretion to award enhanced damages where there is a
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`finding of willful conduct done for purposes of commercial advantage or private
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`financial gain.” Khin, 2016 WL 9046677, at *5 (citing 47 U.S.C. §§ 553, 605). To
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`determine if a defendant’s willful conduct justifies increased damages, courts
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`consider several factors “(i) repeated violations over an extended period of time;
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`(ii) substantial unlawful monetary gains; (iii) advertising of the broadcast;
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`32 ECF 30-2, at 18–19.
`33 Id.
`34 Id. at 18, 31–32.
`35 Id. at 18–19, 25–26 ¶ 16.
`36 Id. at 22–23 ¶ 8; id. at 29.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 13 of 17
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`(iv) charging of a cover charge or premiums for food and drinks; or (v) plaintiff’s
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`significant actual damages.” Just Fam, 2010 WL 2640078, at *3.
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`Here, there is evidence that the Lounge advertised its broadcast of the
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`Program and Glover (by virtue of her default) admitted to having been the
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`controlling manager at the time. This is sufficient to show a willful violation of
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`Sections 553 and 605. As such, some enhanced damages are warranted. District
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`courts in the Eleventh Circuit routinely calculate enhancement awards by
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`multiplying the statutory damage amount by three. See, e.g., Joe Hand Promotions,
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`Inc. v. Jones, No. 1:18-cv-3702-TCB, 2019 WL 5280971, at *3 (N.D. Ga. Apr. 18, 2019);
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`Khin, 2016 WL 9046677, at *5; Herbelaine, 2016 WL 9045967, at *5; Blanchard, 2010
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`WL 1838067, at *4; Just Fam, 2010 WL 2640078, at *3. “The formula of three times
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`the statutory award is common . . . where the establishment is a first-offender, did
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`not charge for entry, did not charge a premium on drinks or food during the
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`broadcast, and did not advertise the broadcast.” Blanchard, 2010 WL 1838067, at *4.
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`Other than having advertised, these rationales apply to Defendants. As such, the
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`Court finds that a three-times multiplier of the statutory damage award ($4,425) is
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`appropriate and will act as a sufficient deterrent. The total statutory damages
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`award for Count I is therefore $5,900.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 14 of 17
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`ii.
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`Count II
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`Under Count II for copyright infringement, Joe Hand seeks statutory and
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`enhanced damages pursuant to 17 U.S.C. §§ 106 and 501. Statutory damages may
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`range from $750 to $30,000 “as the court considers just.” 17 U.S.C. § 504(c)(1).
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`Willful violations can incur damages up to $150,000. Id. § 504(c)(2). Courts in this
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`district have found the sublicensing fee plus the average residential charge each of
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`the viewing patrons would have paid to view the Program at home to be an
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`appropriate measure of statutory damages. See, e.g., Jones, 2019 WL 5280971, at *4.
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`In determining whether actions were willful for purposes of enhanced
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`damages, a court looks to “whether the infringer had experience with previous
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`copyright ownership, prior lawsuits regarding similar practices, or work in an
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`industry where copyright is prevalent.” Marshall v. Marshall, No. 08-cv-1420, 2012
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`WL 1079550, at *25 (E.D.N.Y. Mar. 30, 2012); Superior Form Builders, Inc. v. Dan
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`Chase Taxidermy Supply Co., 74 F.3d 488, 496–97 (4th Cir. 1996). The Court also has
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`wide discretion under the statute in determining the appropriate damages award
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`for copyright infringement. Cable/Home Commc’n Corp., 902 F.2d at 852.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 15 of 17
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`Here, no more than 25 people viewed the Program at any time.37
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`Multiplying that figure by the price that would have been charged to
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`“independents” for viewing the program—$12.50—yields $312.50. Adding the
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`sublicensing fee of $1,475, Joe Hand is entitled to statutory damages of $1,787.50
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`on its copyright infringement claim. There is no evidence to support any of the
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`factors to which courts look to impose an enhanced damages award. Accordingly,
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`Joe Hand is not entitled to such damages. The total statutory damages award for
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`Count II is therefore $1,787.50.
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`iii. Costs and fees
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`Because liability has been established under §§ 553 and 605, Joe Hand is
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`entitled to its reasonable attorneys’ fees. It requests $4,232.50 in fees and has
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`submitted a copy of the detailed billing statement from its counsel showing each
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`task performed and counsel’s hourly rate.38 The Court finds that the requested
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`attorneys’ fees are reasonable. As such, Joe Hand is entitled to $4,232.50 in
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`attorneys’ fees. In addition, within 14 days after entry of this Order it may submit
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`a bill of costs to seek its recoverable costs. 28 U.S.C. § 1920.
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`37 ECF 30-2, at 18.
`38 ECF 30, at 6–8.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 16 of 17
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`iv.
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`Joint and several liability
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`Defendants are jointly and severally liable to Plaintiff for all damages,
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`attorneys’ fees, and costs awarded in this Order. A person is vicariously liable for
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`satellite or cable piracy if he “had a right and ability to supervise the violations,
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`and . . . had a strong financial interest in such activities.” Blanchard, 2010 WL
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`1838067, at *3. The same vicarious liability test applies for copyright infringements.
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`BUC Int’l, 489 F.3d at 1138 n.19 (“Liability for vicarious copyright infringement
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`arises when the defendant profits directly from the infringement and has a right
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`and ability to supervise the direct infringer, even if the defendant initially lacks
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`knowledge of the infringement.”). Joe Hand alleges—and, by their default,
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`Defendants admit—that Glover was “acting as the controlling manager” of the
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`Lounge on the date of the broadcast, supervising the display of the Program, and
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`had a strong financial interest in the illicit broadcast.39 These allegations provide a
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`sufficient basis for vicarious and, therefore, joint and several liability on default
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`judgment.
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`39 ECF 24, ¶¶ 7–9.
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`Case 1:20-cv-02119-SDG Document 33 Filed 03/28/22 Page 17 of 17
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`IV. Conclusion
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`Plaintiff’s Application for Default Judgment Against Defendants [ECF 30] is
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`GRANTED. The Clerk is DIRECTED to enter judgment in favor of Plaintiff and
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`against both Defendants, jointly and severally, in the amount of $11,920.00.
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`SO ORDERED this 28th day of March, 2022.
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`Steven D. Grimberg
`United States District Court Judge
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