United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
(DKT. NO. 8)
PAMELA PEPPER, United States District Judge
case is before the court on plaintiff J & J Sports
Productions, Inc.’s (“J & J Sports”)
motion for default judgment on its complaint against the
defendant, Juan Curiel, d/b/a El Toro Bravo. Dkt. No. 8. In
its complaint, J & J Sports alleged that it held the
rights to distribute via satellite the Floyd Mayweather,
Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight
Program, and that the defendant illegally pirated the
broadcast and displayed it in the restaurant in violation of
The Communications Act of 1934, 47 U.S.C. §605, et
seq. and The Cable & Television Consumer Protection
and Competition Act of 1992, 47 U.S.C. §533 et
seq. Dkt. No. 1 at 3.
plaintiff filed the motion for default judgment on April 8,
2016, Dkt. No. 8, and the clerk entered default on April 11,
2016. In support of its motion for default judgment, J &
J Sports filed the affidavit of Peter S. Balistreri, Dkt. No.
9, and three exhibits: the rate card for the broadcast at
issue, the affidavit of J & J Sports’ investigator,
Michael J. Pfeifer (“Pfeifer”), and documents
supporting J & J Sports’ claimed attorney’s
fees and costs, Dkt. Nos. 9-1 through 9-3.
contract, J & J Sports had the exclusive nationwide
television rights to distribute the Floyd Mayweather, Jr.
v. Saul Alvarez WBC Light Middleweight Championship Fight
Program, including undercard bouts and the entire
television broadcast, scheduled for September 14, 2013 (the
“Broadcast”) via closed circuit television and
via encrypted satellite signal. Dkt. No. 1 at 3. J & J
Sports entered into sub-licensing agreements with commercial
entities throughout North America, including entities in
Wisconsin, in which it granted those entities limited
sub-licensing rights to publicly exhibit the Broadcast to the
patrons in their respective establishments. Id.
little after 10:30 on September 13, 2013, the night of the
Broadcast, Pfeifer, an investigator with M. B. Scurto &
Associates, entered El Toro Bravo, a bar at 2039 W. National
Avenue, Milwaukee, Wisconsin. Dkt. 9-2 at 1. The outside
signs, which read “El Toro Bravo” and
“Open, ” both were off, and the
restaurant’s windows facing the street were obscured
from the inside with either paper or cardboard. Id.
Pfeifer entered the restaurant, without having to pay a cover
charge, and was met by a man. Id. Pfeifer asked if
“they” were showing the Mayweather fight.
Id. The man replied, “Yes, but this is a
private party.” Id. Pfeifer saw six people
come in and stay. Id. Before turning around and
leaving, Pfeifer saw a television set that was tuned to a
pay-per-view fight between Danny Garcia and Lucas Mattysse.
Id. After leaving the bar, Pfeifer stayed
outside to watch for a few minutes, and observed five cars
parked on the street and driveway next to the bar.
Id. at 2.
plaintiff alleges that these facts establish that the
defendant violated 47 U.S.C. §605 or §553, by
intercepting and exhibiting the Broadcast. Id.at
2-3. The plaintiff claims that the defendant’s actions
were willful and for the purposes of direct or indirect
commercial advantage or private financial gain.
January 16, 2016 and January 27, 2016, the plaintiff’s
process server attempted to serve the plaintiff at 2039 West
National Avenue. Dkt. No. 5. He was unsuccessful, and his
affidavit states, “Defendant no longer owns the bar
per/employees. Defendant no longer lives in upper unit
per/current tenant.” Id. At a hearing on March
1, 2016, counsel for the plaintiff told the court that he had
no other address for the defendant. He also noted that
he’d been retained in the case a couple of years after
the events in question, making it likely that the defendant
had moved. Dkt. No. 6. The plaintiff effectuated service by
publication on February 24, March 2 and March 9 of 2016 in
the Daily Reporter. Dkt. No. 7. As of the date of the motion
for default judgment- just over three months after the
summons issued, the defendant had not filed an answer.
reviewing a motion for default judgment, the court takes
“the well- pleaded allegations of the complaint
relating to liability . . . as true.” Wis. Laborers
Health Fund v. KCM Excavation & Landscaping, LLC,
No. 13-C-1366, 2014 WL 1347489 at *1 (E.D. Wis. Apr. 3,
2014), quoting Merrill Lynch Mort. Corp. v. Narayan,
908 F.2d 246, 253 (7th Cir. 1990). A default judgment
establishes liability. Id., quoting United
States v. DiMucci, 879 F.2d 1488, 1497 (7th Cir. 1989).
Allegations relating to the “amount of damages
suffered, ” however, “ordinarily are not”
taken as true. Narayan, 908 F.2d at 253.
J Sports’ complaint pleads two claims arising under
Title 47 of the United States Code. Section 605 governs the
interception of television programming transmitted by wire or
radio (including encrypted satellite transmission), while
§553 governs the interception of television programming
traveling over a cable network. United States v.
Norris, 88 F.3d 462, 468-69 (7th Cir. 1996); 47 U.S.C.
§§553, 605. Section 605(a) prohibits the
unauthorized interception and receipt of radio
communications. Section 553 prohibits the unauthorized
interception and receipt of cable communications. The
complaint alleges that the defendant, without authorization,
unlawfully intercepted the encrypted signal that distributed
the Broadcast, unscrambled it, and showed the Broadcast at
the El Toro Bravo bar for commercial advantage or private
financial gain, in violation of either §605 or
§553. Dkt. No. 1 at 3.
on the facts alleged in the complaint and the exhibits to J
& J Sports’ motion for default judgment, the court
finds that J & J Sports has established a prima
facie case that the defendant engaged in piracy by
intercepting or receiving the Broadcast and displaying it
court also finds that the plaintiff has established a
prima facie case that the defendant’s piracy
was willful. As Judge Griesbach found in J&J
Sports Productions, Inc. v. Sangria’s Mexican Grill
As a result of [the defendant’s] default, [the
defendant] is deemed to have unlawfully intercepted the
program and shown it to their patrons and to have done so
willfully and for purposes of direct or indirect commercial
advantage or private financial gain. See Time Warner
Cable of N.Y. City v. Googies Luncheonette, Inc., 77
F.Supp.2d 485, 490 (S.D.N.Y. 1999) (“[s]ignals do not
descramble spontaneously, nor do television sets connect
themselves to cable distribution systems”); see
also Kingvision Pay-Per-View, Ltd. v. Scott E’s Pub.,
Inc., 146 F.Supp.2d 955, 959 (E.D. Wis. 2001) (“
‘Willful’ as used in these statutes means a
‘disregard for the governing statute and an
indifference for its requirements.’”) (quoting
ON/TV v. Julien, 763 F.2d 839, 844 (7th Cir. 1985)).
“ ‘In addition, the court may draw an inference
of willfulness from a defendant’s failure to appear and
defend an action in which the plaintiff demands increased