United States District Court, E.D. Wisconsin
ORDER GRANTING DEFAULT JUDGMENT
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
J & J Sports Productions, Inc. brought this action
against Mojitos Mexican Grill & Bar, LLC, as well as its
members Shirley Bullock-Vazquez and Jose Luis
Vazquez-Figueroa in their individual capacities. The
complaint alleges that the defendants knowingly and willfully
violated 47 U.S.C. §§ 553 and 605 by unlawfully
intercepting and exhibiting the television broadcast of the
“Floyd Mayweather, Jr. v. Marcos Rene Maidana, II WBC
World Lightweight Championship Fight Program” on
September 13, 2014, at Mojitos in Appleton, Wisconsin.
Jurisdiction exists under 28 U.S.C. § 1331. After
Bullock-Vazquez and Vazquez-Figueroa answered the complaint,
the court held a November 20, 2017 scheduling hearing, at
which Bullock-Vazquez and counsel for Plaintiff appeared by
telephone. Subsequent to the telephone hearing, Plaintiff and
Bullock-Vazquez submitted stipulated facts. ECF No. 12.
Mojitos, however, has failed to appear in this action, and
the clerk entered default against Mojitos on February 26,
2018. This matter now comes before the court on
Plaintiff's motion for entry of default judgment against
Mojitos. ECF No. 15. For the reasons set forth below, the
motion for default judgment will be granted.
and Bullock-Vazques have stipulated to most of the undisputed
background facts in this case. ECF No. 12. On September 13,
2014, the “Floyd Mayweather, Jr. v. Marcos Rene
Maidana, II WBC World Lightweight Championship Fight Program,
” including undercard bouts and the entire television
broadcast (“the Broadcast”), was shown on five
television screens at Mojitos. Id. ¶ 1.
Bullock-Vazquez owned and operated Mojitos on the day of the
fight, although she no longer owns or operates the
restaurant. Id. ¶¶ 2-3. Mojitos'
capacity was 90 people. Id. ¶ 4. The commercial
rate for showing the Broadcast for a building with a capacity
of 0-100 people was $2, 200, but neither Bullock-Vazquez nor
anyone else acting on behalf of the restaurant ever paid the
commercial rate. Id. ¶¶ 5-6. No cover
charge was needed to enter Mojitos on the night of the
Broadcast, and Mojitos did not advertise the Broadcast.
Id. ¶¶ 7-8. Plaintiff's investigator
took three headcounts during the Broadcast, resulting in
counts of 65, 75, and 80 people. Id. ¶ 9.
remaining facts are taken from the allegations in
Plaintiff's complaint and the affidavit and supporting
documents filed with Plaintiff's motion for default
judgment. ECF No. 1; ECF No. 17. They are deemed admitted as
a consequence of Mojitos' default. See, e.g.,
Black v. Lane, 22 F.3d 1395, 1397 n.4 (7th Cir.
1994). Plaintiff owned the distribution rights to the
Broadcast, which originated via satellite uplink and was then
re-transmitted to cable systems and satellite companies via
satellite signal. Plaintiff entered into sub-licensing
agreements with entities located within Wisconsin that
permitted those entities to exhibit the Broadcast to patrons
within their establishments.
Plaintiff's investigators visited Mojitos at 9:31 p.m. on
September 13, 2014. ECF No. 17-2 at 1. The investigator
observed five televisions displaying the fight. Id.
In the bar area, three television sets and a projection
screen displayed the fight on the west wall and one displayed
it on the south wall. Id. The investigator observed
an interview with Mike Tyson followed by the beginning of the
fight, in which Mayweather wore floral and white shorts with
black stripes and Maidana word red shorts. Id. The
investigator left the establishment at 10:55 p.m.
Id. at 2.
complaint alleges that the defendants violated 47 U.S.C.
§§ 553 and 605, but the stipulations of fact do no
establish how, precisely, the defendants intercepted the
Broadcast (i.e., via coaxial cable or satellite). A plaintiff
may not simultaneously pursue relief under §§ 553
and 605 because the sections target two distinct types of
piracy. See United States v. Norris, 88 F.3d 462,
468 (7th Cir. 1996) (holding that 47 U.S.C. § 605
governs the interception of programming as it travels through
the air, while 47 U.S.C. § 553 governs the interception
of cable television programming traveling over a cable
network). Plaintiff apparently requests damages under §
605 (ECF No. 17 at 1-2), which often produces higher damages
awards, but cannot demonstrate conclusively that Mojitos
intercepted a satellite signal on September 13, 2014.
Nevertheless, because Mojitos' failure to appear or
defend deprived Plaintiff of the opportunity to conduct
discovery regarding the transmission at issue, I conclude
that liability is appropriately established under § 605.
Accord J & J Sports Prods., Inc. v. Aguilera,
No. 09-4719, 2010 WL 2362189, at *2 (N.D. Ill. June 11,
result of Mojitos' default and the stipulated facts,
Mojitos is deemed to have unlawfully intercepted the
Broadcast and shown it to its patrons, and it is deemed 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) (“Signals 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 defendants failure to appear
and defend an action in which the plaintiff demands increased
statutory damages based on allegations of willful
conduct.'” Garden City Boxing Club, Inc. v.
Frezza, 476 F.Supp.2d 135, 138 (D. Conn. 2007) (quoting
J & J Sports Prods., Inc. v. Drake, No. 06CV246
(ILG)(RML), 2006 WL 2927163, at *5 (E.D.N.Y. Oct. 11, 2006)).
claimant entitled to relief under § 605 may elect actual
or statutory damages pursuant to § 605(e)(3)(C)(i)(I).
Plaintiff has elected statutory damages, which range from a
minimum of $1, 000 to a maximum of $10, 000, in the
discretion of the court. 47 U.S.C. §
605(e)(3)(C)(i)(II). Plaintiff also seeks enhanced damages
for a willful violation. Section 605 permits enhanced damages
of up to $100, 000, in the discretion of the court, where the
defendant has exhibited disregard for the governing statute
and indifference to its requirements. See, e.g.,
Kingvision, 146 F.Supp.2d at 959-61. Finally, under
§ 605(e)(3)(B)(iii), Plaintiff has requested an award of
attorneys' fees and costs in the amount of $1, 722.
turn to the question of what amount of statutory damages is
appropriate in this case. There are various ways in which
courts have gone about calculating statutory and enhanced
damages for violations of § 605:
Some courts have assessed statutory damages using as a
yardstick the number of patrons in the establishment viewing
the show. See, e.g., Googies Luncheonette,
Inc., 77 F.Supp.2d at 489 (listing cases); Time
Warner Cable v. Taco Rapido Rest., 988 F.Supp. 107, 111
(E.D.N.Y.1997) (same). Some courts have awarded a flat sum
for each violation. See, e.g., Googies
Luncheonette, Inc., 77 F.Supp.2d at 489-90 (listing
cases); Taco Rapido Rest., 988 F.Supp. at 111
(same). A multiplier has been used in cases of willful
violations. See, e.g., Googies Luncheonette,
Inc., 77 F.Supp.2d at 491 (recommending for willful
violation an additional three times the base statutory
damages award for one defendant, an additional four times the
award for another defendant, and an additional eight times
the award for a third defendant); Cablevision Sys. Corp.
v. Maxie's N. Shore Deli Corp., No. CV 88 2834(ASC),
1991 WL 58350, *2 (E.D.N.Y. 1991) (awarding an additional
amount for willful violation in the amount of five times the
initial statutory damages award).
Kingvision, 146 F.Supp.2d at 960. The court in
Kingvision calculated the statutory damages based
upon the rate the plaintiff charged its customers for the
right to exhibit the program, which in turn was based upon
the maximum fire code occupancy of the ...