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J&J Sports Productions, Inc. v. Sutton

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

January 4, 2018

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF
v.
ALBERT W. SUTTON, INDIVIDUALLY and d/b/a CLUB ELEMENT, et. al., DEFENDANTS

          MEMORANDUM OPINION

          Thomas B. Russell, Judge

         On September 26, 2017, Plaintiff J & J Sports Productions, Inc. obtained an entry of default against Defendants Albert W. Sutton, individually and d/b/a Club Element; Elaine Sutton, individually and d/b/a Club Element; and The Reel Fathertime and Sunshine Productions LLC. [DN 10.] Thereafter, the sole issue to be determined prior to Judgment was the amount of damages. On December 13, 2017, the Court held a damages hearing, at which both Plaintiff and Defendants had the opportunity to present evidence. For the reasons explained in detail below, the Court will enter a judgment in favor of J&J Sports on its claim under 47 U.S.C. § 605 and award J&J Sports $6, 000.00 in statutory damages, $2, 000.00 in enhanced damages, $1, 560.00 in attorney's fees, and $422.50 in costs, for a total amount of $9, 982.50. The Court will enter and Order and Judgment consistent with this Memorandum Opinion.

         BACKGROUND

         On May 2, 2015, a professional boxing match entitled “The Fight of the Century” Floyd Mayweather, Jr v. Manny Pacquiano Championship Fight Program (the “Program”) aired on television. [DN 1 at 4 (Complaint).] Plaintiff, J & J Sports Productions, Inc. (“J&J Sports”) owned the exclusive nationwide distribution rights to the Program. [Id.] After discovering that Defendants Albert and Elaine Sutton broadcasted the Program at Club Element, their place of business, without first purchasing a license to show the Program in a commercial establishment, J&J Sports brought the instant suit. [DN 1 (Complaint).] Specifically, J&J Sports seeks damages for violations of the Cable Communications Policy Act, 47 U.S.C. §§ 553 and 605. After Defendants failed to appear, file an answer, or file any other pleadings to defend against this action, the Court granted Plaintiff's motion for entry of default against Defendants on September 26, 2017. [DN 10 (Entry of Default).] Thereafter, the Court held a telephonic status conference in which both Plaintiff and Defendants Albert and Elaine Sutton participated. [DN 11.] Defendants later filed a post-default answer to Plaintiff's complaint, [DN 13], and Plaintiff filed a memorandum addressing its requested damages. [DN 14.] The Court held an evidentiary hearing on the issue of damages on December 13, 2017. [DN 15.] Both J&J Sports and the Suttons participated at the hearing.

         STANDARD

         After the Clerk of Court enters a party's default pursuant to Federal Rule of Civil Procedure 55(a), the Court may thereafter enter default judgment pursuant to Rule 55(b)(2) after, if necessary under the circumstances of the case, holding a hearing to “determine the amount of damages.” Fed.R.Civ.P. 55(a)-(b)(2)(B).

         DISCUSSION

         Though J&J Sports brings suit under both 47 U.S.C. § 553 and § 605, these statutes provide alternative means of recovery, and therefore J&J Sports may only recover under one. See J&J Sports Prods., Inc. v. Ultimate Jet-A-Way Sportsbar & Lounge, Inc., No. 4:17-CV-1038-RBH, 2017 WL 4923559, at *3 (D.S.C. Oct. 31, 2017) (“[T]he two statutory schemes provide relief for the alternate means by which the Program might have been received (satellite or cable).”); J & J Sports Prods., Inc. v. Smalls, No. CV 16-4883, 2017 WL 4680612, at *2 (E.D. Pa. Oct. 18, 2017) (“‘Section 553 prohibits the unauthorized interception and transmission of cable communications, whereas § 605 prohibits the unauthorized interception and transmission of encrypted satellite cable programming.' Thus, a defendant cannot be held liable under both sections.”) (internal citation omitted) (citing TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 207 (3d Cir. 2001)). Here, J&J Sports has elected to proceed under § 605 for the purposes of a judgment of damages in this case.[1]

         A. Liability under 47 U.S.C. § 605(a)

         Section 605(a) provides, in part, that

no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney . . . .

47 U.S.C. § 605(a). Accordingly, to prevail under § 605(a), “Plaintiff must demonstrate that Defendants intercepted the Program's signals and ‘divulged' or aired it to commercial patrons.” Ultimate Jet-A-Way Sportsbar & Lounge, Inc., 2017 WL 4923559, at *3. In this case, it is undisputed that the Suttons broadcast the Program at Club Element without having purchased the necessary license from J&J Sports. Rather, the Suttons only contend that they “were unaware that said fight . . . could not be shown in public facility.” [DN 13 (Defendants' Post-Default Answer).] However, “Section 605(a) is a strict liability statute, ” and therefore Defendants' knowledge or intent is irrelevant. J & J Sports Prods., Inc. v. J & J Keynote Lounge, Inc., No. 11-CV-15002, 2013 WL 1747803, at *6 (E.D. Mich. Apr. 23, 2013) (citations omitted). In sum, Defendants admit that the “[f]ight was purchased from cable provider by a member of [the] club” and shown at Club Element with their knowledge. [DN 13.]

         Additionally, J&J Sports submitted the affidavit of its investigator, Steve Clark, who averred that he witnessed the Program being shown at Club Element on May 2, 2015 on multiple screens to approximately 126, 134, and 149 people, based on three different head counts he took throughout the night. [DN 14-1 at 1-2 (Clark Affidavit).] At the evidentiary hearing, Elaine Sutton explained that she and her husband, Albert Sutton, ran and received all of the profits from Club Element. She further admitted that she knew the fight was going to be shown at Club Element on May 2, 2015, that she advertised the Program on Club Element's Facebook page, and that she offered drink specials on the night of the fight. Based on the foregoing undisputed facts, the Court finds that J&J Sports has shown that Defendants violated § 605(a), and therefore that J&J Sports is entitled to judgment in its favor.

         B. Damages under 47 ...


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