Case 6:19-cv-06254-FPG Document 11 Filed 01/30/20 Page 1 of 7
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` Case # 19-CV-6254-FPG
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` DECISION AND ORDER
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`Plaintiff,
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`Defendants.
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`JOE HAND PROMOTIONS, INC.,
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`v.
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`JASON BOYD, et al.,
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`INTRODUCTION
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`Plaintiff Joe Hand Promotions, Inc. brings this action against Defendants Jason Boyd and
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`Tavern 2 7 8 Inc.,1 alleging that they unlawfully received and exhibited a pay-per-view boxing
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`match at their restaurant, in violation of 47 U.S.C. §§ 553, 605. On September 18, 2019, the Clerk
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`of Court filed an entry of default against Defendants after they failed to appear or otherwise defend.
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`ECF No. 9. Plaintiff now moves for default judgment. ECF No. 10. For the following reasons,
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`Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 55 sets forth the procedure for obtaining a default
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`judgment. First, the plaintiff must have secured an entry of default from the clerk, which requires
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`a showing, “by affidavit or otherwise,” that the defendant “has failed to plead or otherwise defend”
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`itself in the action. Fed. R Civ. P. 55(a). Once the plaintiff has obtained an entry of default, and
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`if his claim against the defendant is not “for a sum certain,” the plaintiff “must apply to the court
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`for a default judgment.” Fed. R. Civ. P. 55(b)(1)-(2).
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`1 In one paragraph of the complaint, Plaintiff references another defendant identified as “OYINDAMOLA
`ODUSANYA AKINKUGBE.” ECF No. 1 ¶ 20. This defendant is neither listed in the caption nor
`referenced elsewhere in the complaint. The Court assumes this was an inadvertent addition.
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`1
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`Case 6:19-cv-06254-FPG Document 11 Filed 01/30/20 Page 2 of 7
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`The clerk’s entry of default does not mean that default judgment is automatically
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`warranted. See Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton
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`Masonry & Constr., LLC, 779 F.3d 182, 187 (2d Cir. 2015) (per curiam). Instead, “the court may,
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`on [the plaintiff’s] motion, enter a default judgment if liability is established as a matter of law
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`when the factual allegations of the complaint are taken as true.” Id. If liability is established, the
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`Court must then determine the proper amount of damages, which requires evidentiary support. See
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`id. at 189 (“[A] party’s default . . . is not considered an admission of damages.”).
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`BACKGROUND
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`The following facts are taken from the complaint, unless otherwise noted. Plaintiff held
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`the exclusive right to distribute to commercial establishments the broadcast of Wilder v. Fury, a
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`December 1, 2018 boxing match (the “PPV”). ECF No. 1 ¶ 6. It broadcasted the match via closed-
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`circuit television and encrypted satellite signal. Id.
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`Boyd is the principal of Tavern 2 7 8 Inc., and through that entity he runs a restaurant
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`located in Rochester. Id. ¶ 8. On December 1, 2018, Defendants advertised on social media that
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`they would be broadcasting the PPV at the restaurant. Id. ¶ 14. That evening, Defendants showed
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`the PPV, charging a cover of $10 per person. Id. ¶¶ 13, 16. However, Defendants did not pay any
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`commercial licensing fee to, or otherwise receive authorization from, Plaintiff to broadcast the
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`PPV. Id. ¶ 15. While Plaintiff acknowledges that, without discovery, it does not know how
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`Defendants intercepted the broadcast, it identifies several “readily available” methods by which
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`one can do so. Id. ¶ 26. Plaintiff brought this action in April 2019. It raises two claims for
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`violations of § 553 and § 605 of Title 47.2
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`2 In its motion for default judgment, Plaintiff seeks damages for copyright infringement. See ECF No. 10
`at 1-2. Because Plaintiff did not raise a claim for copyright infringement in its complaint, the Court will
`not address that issue. See generally ECF No. 1.
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`2
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`Case 6:19-cv-06254-FPG Document 11 Filed 01/30/20 Page 3 of 7
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`I. Liability
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`DISCUSSION
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`The Court first evaluates whether Plaintiff’s allegations, taken as true, establish
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`Defendant’s liability. See Moulton Masonry, 779 F.3d at 187.
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`Plaintiff’s first claim arises under § 605, which “generally prohibits the unauthorized use
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`or publication of wire or radio communications.” J & J Sports Prods., Inc. v. Nacipucha, No. 17-
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`CV-1186, 2018 WL 2709222, at *3 (E.D.N.Y. May 18, 2018). As is relevant here, the statute
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`provides, “No person not being authorized by the sender shall intercept any radio communication
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`and divulge or publish the existence, contents, substance, purport, effect, or meaning of such
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`intercepted communication to any person.” 47 U.S.C. § 605(a). “In common parlance, this
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`subsection prohibits the interception of a radio communication . . . [and] its publication to a third
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`party.” Nacipucha, 2018 WL 2709222, at *3 (internal quotation marks omitted). A “radio
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`communication” includes a satellite transmission. Id.
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`Taking the allegations in the complaint as true, Plaintiff adequately states a claim against
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`Defendants for violation of § 605. Specifically, Plaintiff alleges that Defendants intercepted the
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`PPV, which was broadcasted via satellite uplink, and exhibited it at the restaurant to patrons. ECF
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`No. 1 ¶¶ 13, 26. Plaintiff alleges that Defendants did not pay the commercial licensing fee for the
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`PPV or receive authorization from Plaintiff to show it. Id. ¶¶ 15, 25. These facts suffice to state
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`a violation of § 605. See, e.g., Joe Hand Promotions, Inc. v. Soviero, No. 11-CV-1215, 2012 WL
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`3779224, at *4 (E.D.N.Y. July 31, 2012) (finding similar allegations sufficient to state a § 605
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`claim).
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`Having concluded that Plaintiff has a sufficient claim under § 605, the Court need not
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`address the second claim under § 553. That provision prohibits a person from intercepting or
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`3
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`receiving “any communications service offered over a cable system, unless specifically authorized
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`to do so by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. §
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`553(a)(1). Courts have held that where a defendant has violated both § 605 and § 553, only
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`damages under § 605 should be awarded. See Garden City Boxing Club, Inc. v. Fofana, No. 05-
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`CV-3409, 2006 WL 2927228, at *3 (S.D.N.Y. Oct. 13, 2006). Also, Plaintiff states that it “elects
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`to recover” under § 605. ECF No. 10-5 at 9. Accordingly, the Court need not analyze the § 553
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`claim and may proceed to assess damages under § 605.
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`II. Damages3
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`“[W]hile a party’s default is deemed to constitute a concession of all well pleaded
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`allegations of liability, it is not considered an admission of damages.” Moulton Masonry, 779 F.3d
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`at 189. Rule 55(b)(2) provides that “on the matter of damages the court may conduct such hearings
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`or order such references as it deems necessary and proper.” Id. “That rule allows but does not
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`require the district judge to conduct a hearing.” Id.
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`Against each defendant, Plaintiff requests $30,000 in statutory and enhanced damages
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`based on Defendants’ willful violation of § 605. See ECF No. 10 at 1-2. Plaintiff also requests
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`$3,845.04 in attorney’s fees and costs. Plaintiff has provided sufficient evidence to assess damages
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`without a hearing.
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`A prevailing party may elect to receive statutory damages under § 605. 47 U.S.C. §
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`605(e)(3)(C)(i)(II). A district court is vested with the discretion to award damages of between
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`$1,000 and $10,000 per violation, unless the violation “was committed willfully and for purposes
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`3 In its complaint, Plaintiff requests a permanent injunction “prohibiting [D]efendants from receiving,
`transmitting, and exhibiting Plaintiff’s programming.” ECF No. 1 at 9. Although it does not appear that
`Plaintiff is requesting that relief in its present motion, the Court notes that it would deny that request if the
`Plaintiff were seeking it. This is because Plaintiff has not shown that it lacks an adequate remedy at law.
`See Kingvision Pay-Per-View Ltd. v. Lalaleo, 429 F. Supp. 2d 506, 516 (E.D.N.Y. 2006).
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`4
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`of direct or indirect commercial advantage or private financial gain,” in which case the court may
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`“increase the award of damages . . . by an amount of not more than $100,000.” Id.
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`§ 605(e)(3)(C)(ii). In exercising their discretion, courts in this Circuit “have used essentially two
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`approaches.” J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469, 474
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`(E.D.N.Y. 2009) (collecting cases). “The first calculates damages on the basis of the number of
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`patrons observed in the defendant establishment, and then multiplies that figure by a set amount.”
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`Id. “A slight variation to this approach awards the plaintiff the license fee the defendant, based on
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`its capacity, would have paid if it had legally purchased the event for exhibition.” Id. Because
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`Plaintiff has not submitted evidence relating to the number of patrons who viewed the PPV, the
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`Court will use the latter approach. See J & J Sports Prods., Inc. v. Benson, No. 06-CV-1119, 2007
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`WL 951872, at *4-5 (E.D.N.Y. Mar. 27, 2007).
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`Plaintiff has submitted evidence sufficient to establish the licensing fee it would have
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`charged Defendants to broadcast the PPV. Specifically, Plaintiff would normally charge a venue
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`$1,450 where, as here, it has a maximum occupancy of 100 people. See ECF No. 10-4 at 1, 6. The
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`Court therefore concludes that statutory damages in the amount of $1,450 are warranted. Accord
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`Benson, 2007 WL 951872, at *5; Joe Hand Promotions, Inc. v. Bernal, No. 18-CV-85, 2019 WL
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`885930, at *4-5 (E.D.N.Y. Feb. 22, 2019).
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`The Court also finds an award of enhanced damages appropriate. The evidence Plaintiff
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`provides establishes that Defendants’ conduct was willful and for the purpose of private financial
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`gain. On social media, Defendants advertised that they would be exhibiting the PPV, and they
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`charged a $10 cover to patrons. Far from being a mistaken or unintentional violation, Defendants
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`brazenly exhibited the PPV in order to make money and increase business. Courts usually
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`calculate enhanced damages by trebling the award of statutory damages. See, e.g., id. at *5-6
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`(collecting cases); Benson, 2007 WL 951872, at *5 (same). Accordingly, the Court awards
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`enhanced damages in the amount of $4,350.
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`III. Attorney’s Fees and Costs
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`Under § 605(e)(3)(B)(iii), the prevailing party is entitled to recover attorney’s fees and
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`costs. Plaintiff requests $1,910 in attorney’s fees and $1,935.04 in costs. ECF No. 10-1 at 5-6.
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`“In the Second Circuit, a party seeking an attorney’s fees award must support that request
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`with contemporaneous time records that show, for each attorney, the date, the hours expended, and
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`the nature of the work done.” Benson, 2007 WL 951872, at *6 (internal quotation marks omitted).
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`The Court has reviewed the billing records and concludes that the requested fees are reasonable.
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`The Court awards $1,910 in attorney’s fees.
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`As to costs, Plaintiff’s requested costs are for filing fees ($400), service of process ($774),
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`postage ($11.04), and an auditing fee ($750). Plaintiff is entitled to costs for filing fees, service of
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`process, and postage, J & J Sports Prods., Inc. v. El Sonador Cafe Restaurant, Inc., No. 14-CV-
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`7074, 2015 WL 1928757, at *5 (E.D.N.Y. Apr. 28, 2015), but auditing fees (i.e., investigator’s
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`fees) are not permitted. See Kingvision Pay-Per-View Ltd. v. Cardona, No. 03-CV-3839, 2004
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`WL 1490224, at *4 (S.D.N.Y. June 30, 2004) (“There is no provision for a prevailing party to be
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`awarded the cost of its investigator.”). In addition, while recoverable, Plaintiff’s costs for private
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`process servers are excessive. Service of process costs may not exceed the rate established for
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`service through the U.S. Marshals Service, which is currently $65 per hour. Premium Sports, Inc.
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`v. Nichols, No. 17-CV-741, 2018 WL 3574870, at *9 (N.D.N.Y. July 25, 2018). The invoices
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`Plaintiff provides show that the process servers charged a flat rate and did not indicate the number
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`of hours worked. See ECF No. 10-2 at 1-4. Absent such evidence, the Court will award $65 for
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`each of the three excessive invoices, and $60 for the reasonable invoice, totaling $255 for service
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`of process. See Nichols, 2018 WL 3574870. Therefore, the Court awards $666.04 in costs.
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`IV.
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`Prejudgment Interest
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`Finally, Plaintiff requests prejudgment interest “at 9% per year from December 1, 2018.”
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`ECF No. 10-9 at 1. That request is denied. See J & J Sports Prods., Inc. v. Vasquez, No. 19-CV-
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`5238, 2019 WL 7194405, at *2 (E.D.N.Y. Dec. 26, 2019) (“A majority of courts in this Circuit
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`have held that pre-judgment interest should not be imposed when statutory damages have been
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`enhanced under Section 605(e)(3)(C)(ii), as the enhancement serves to punish defendants’ willful
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`conduct rather than to compensate plaintiff for a loss.”).
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`CONCLUSION
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`For the reasons discussed above, Plaintiff’s motion for a default judgment (ECF No. 10) is
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`GRANTED IN PART and DENIED IN PART. Plaintiff is awarded $8,376.04 ($1,450 in statutory
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`damages, $4,350 in enhanced damages, $1,910 in attorney’s fees, and $666.04 in costs), for which
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`Defendants Jason Boyd and Tavern 2 7 8 Inc. are jointly and severally liable. Plaintiff’s requests
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`for injunctive relief, prejudgment interest, and damages under the Copyright Act are denied. The
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`Clerk of Court is directed to enter judgment in Plaintiff’s favor and close this case.
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`IT IS SO ORDERED.
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`Dated: January 30, 2020
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`Rochester, New York
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`______________________________________
`HON. FRANK P. GERACI, JR.
`Chief Judge
` United States District Court
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