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Joe Hand Promotions, Inc. v. Dick

United States District Court, W.D. Kentucky, Paducah Division

April 4, 2017

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
BRANDY MARIE DICK, et al., Defendants.

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge United States District Court

         Joe Hand Promotions, Inc. filed this action against Brandy Marie Dick and The Neon Saddle LLC, bringing claims under 47 U.S.C. §§ 553 and 605, along with a common-law claim for unjust enrichment, for broadcasting a pay-per-view program without authorization. In a prior order, the Court entered default against Dick and The Neon Saddle LLC, and neither has acted since that time. Now, Joe Hand Promotions has filed a motion for entry of a default judgment against them. Having carefully reviewed the record before it, the Court finds entry of a default judgment to be warranted. Accordingly, Joe Hand Promotions, Inc.'s Motion for Entry of Default Judgment, [R. 11], is GRANTED.

         I.

          A.

         Joe Hand Promotions, Inc. is a closed-circuit distributor of sports and entertainment programming. [R. 11-2 at 2, ¶ 3 (Hand, Jr.'s Affidavit).] It purchases the commercial exhibition rights to programming including, as pertinent to this action, those related to the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson, which was broadcasted on September 21, 2013. [Id.] Joe Hand Promotions, in turn, sublicenses those exhibition rights to commercial establishments for a fee based on the capacity of the location in question. [Id. at 2-3, ¶¶ 3, 7.]

         Unsurprisingly, there are many who wish to exhibit popular sports programming but remain unwilling to pay for the privilege. [Id., ¶ 4.] To make sure those businesses pay their fair share, Joe Hand Promotions dispatches investigators to local bars and restaurants on the nights of major showings, including the broadcast of the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson, to catch “signal pirates” in the act. [Id., ¶¶ 5-6.]

         Brandy Marie Dick is a managing member of The Neon Saddle LLC, which owns and operates The Neon Saddle, a bar located in Paducah, Kentucky. [R. 1 at 2, ¶¶ 7-8 (Complaint).] An investigator for Joe Hand Promotions, Shawna M. Spiller, visited The Neon Saddle on the night of September 21. [R. 11-4 at 1-2 (Spiller's Affidavit).] Spiller estimated the capacity of The Neon Saddle to be around ninety people. [Id. at 2.] Inside the establishment, Spiller observed one of two televisions exhibiting the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson. [Id. at 1.] The Neon Saddle, however, had not entered into a sublicensing agreement with Joe Hand Promotions to exhibit that program. [R. 11-2 at 3, ¶ 8.] Had Dick and The Neon Saddle paid for the right to exhibit that program, the cost would have been $1, 100.00. [R. 11-3 at 1 (Rates).]

         B.

         Joe Hand Promotions sued Dick and The Neon Saddle LLC, bringing claims under 47 U.S.C. §§ 553 and 605, along with a common-law claim for unjust enrichment, for broadcasting the program without appropriate authorization. [R. 1 at 4-7, ¶¶ 16-33.] Dick and The Neon Saddle LLC were served with copies of the complaint and summons on November 2, 2015. [R. 6 at 1-2 (Summons); R. 7 at 1-2 (Summons).] However, neither appeared or filed an answer (or any other pleadings) to defend against this action. The Court entered default against Dick and The Neon Saddle LLC on September 15, 2016. [R. 9 (Entry of Default).] No action has been taken by either Dick or The Neon Saddle LLC since default was entered. Now, Joe Hand Promotions moves for entry of a default judgment against them. [R. 11 at 1-2 (Motion for Entry of Default Judgment).]

         II.

         Upon default, the Court takes as true all factual allegations in the complaint except those relating to the amount of damages. Fed.R.Civ.P. 8(b)(6); see also Thomas v. Miller, 489 F.3d 293, 299 (6th Cir. 2007); Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995). Even after the entry of default, however, the decision “to grant a default judgment is within the Court's discretion.” AF Holdings LLC v. Bossard, 976 F.Supp.2d 927, 929 (W.D. Mich. 2013) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)). In determining whether to enter a default judgment, courts in this Circuit typically consider factors such as:

[1] the amount of money potentially involved; [2] whether material issues of fact or issues of substantial public importance are at issue; [3] whether the default is largely technical; [4] whether plaintiff has been substantially prejudiced by the delay involved; [5] and whether the grounds for default are clearly established or are in doubt.

10A Charles A. Wright et al., Federal Practice and Procedure ยง 2685 (4th ed.), Westlaw (database updated ...


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