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J&J Sports Productions Inc v. Curiel

United States District Court, E.D. Wisconsin

July 7, 2016

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
JUAN CURIEL, d/b/a EL TORO BRAVO, Defendant.

          ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT (DKT. NO. 8)

          HON. PAMELA PEPPER, United States District Judge

         This 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.

         The 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.

         I. FACTUAL BACKGROUND

         By 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.

         A 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.[1] 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.

         The 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.

         II. ANALYSIS

         On 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.

         When 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 & 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.

         Based 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 without authorization.

         The 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 2 LLC,

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 ...

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