Opinion
No. 01-CV-74510-DT.
May 21, 2002.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff National Satellite Sports, Inc.'s ("National") Motion for Default Judgment against Mosley Entertainment, Inc., d/b/a The Comfort Zone Jazz Club and Clifton Mosley, Jr. (hereinafter referred to individually as "Comfort Zone" and "Mosley," and, respectively and collectively, as "Defendants"). For the following reasons, Plaintiffs Motion is GRANTED.
I. FACTS
The Complaint in this matter avers that National entered in a closed-circuit television license agreement (the "License Agreement") to exhibit the closed-circuit telecast of the November 11, 2000 Championship boxing match between Lennox Lewis and David Tua, from the Mandalay Bay Resort Casino in Las Vegas, Nevada. See Compl. at ¶ 7. The License Agreement, which also included undercard or preliminary bouts, allowed viewing of these events "at closed circuit locations such as theaters, arenas, bars, clubs, lounges, restaurants and the like throughout Michigan." Id. National entered into the License Agreement for the purpose of distributing for a commercial gain the closedcircuit broadcast of the Event to various business entities in Michigan. Id. at ¶ 8.
The boxing match and all related bouts are collectively referred to herein as the "Event."
The Complaint further avers that the closed-circuit Event was not intended for viewing by the general public as, in Michigan, the closed-circuit broadcast of the Event could only be exhibited in a commercial establishment if said establishment was contractually authorized to do so by National. Id. at ¶ 9. National marketed and contracted to distribute the right to broadcast the Event to various establishments throughout Michigan in exchange for a fee. Id. at ¶ 10. The transmission of the Event was electronically coded or "scrambled," requiring decoding of the transmission signal in order to view the Event clearly. Id. at ¶ 11. National employed electronic decoding equipment to accomplish the decoding and provided those entities with which National had contracted said equipment. Id. at ¶¶ 11, 13.
According to Plaintiff, the transmission of the Event was available to purchase for broadcast in Comfort Zone, but Comfort Zone did not contract with National to obtain the rights to broadcast the Event. Id. at ¶ 12. Plaintiff alleges that, on the night of the broadcast, "in violation of [National's] rights and federal and state law, the Defendants willfully intercepted and/or received the interstate communication of the Event." Id. at ¶ 14. Plaintiff alleges in the alternative that "Defendants assisted in the receipt of the interstate communication of the Event. The Defendants then transmitted, divulged and published said communication, or assisted in transmitting divulging and publishing said communication, to patrons within Comfort Zone." Id. Plaintiff claims that Defendants were not authorized to intercept, receive or transmit the communication of the Event or to assist in such actions in any form or at any time. Id. at ¶ 18.
The Complaint states that Defendants' actions constituted a misappropriation of National's licensed exhibition of the Event and an infringement of National's exclusive rights while avoiding proper payment to National. Id. at ¶ 15. Plaintiff claims that the persons whom Defendants allowed to view the Event would otherwise have been able to view it at a commercial establishment only if that particular commercial establishment was properly licensed and authorized by National. Id. at ¶ 17. The Complaint alleges that "Defendants' purpose and express intent in committing their unlawful actions was to secure a financial gain and commercial advantage." Id. at ¶ 15. According to Plaintiff, Defendants' actions caused substantial damage to National. Id. at ¶ 19.
On November 29, 2001, Plaintiff commenced the instant action in federal district court, alleging violations of the Federal Communications Act of 1934, as amended, 47 U.S.C. § 605. Plaintiff also brings suit under 47 U.S.C. § 553. Defendants were served with the Complaint and failed to answer or otherwise respond as required by law. Accordingly, this Court entered a default against each of the Defendants on March 15, 2002.
On March 20, 2002, a letter from Defendant Clifton Mosley to Plaintiffs counsel dated March 18, 2002 was filed with the Court. The letter, which is signed by Mr. Mosley in his capacity as President Chief Executive Officer of Mosley Entertainment, Inc., states in pertinent part: "In response to the action filed by you (Civil Action # 01-74510), I have no knowledge of any illegal broadcast of the Lennox Lewis and David Tua boxing match. I don't recall if I was at the bar that night, however, my manager doesn't recall any fight being showed (sic)." See Letter from Clifton ("Doc") Mosley, Jr. dated March 18, 2002. On April 11, 2002, Plaintiff filed the instant Motion for Default Judgment. Defendants have not sought to set aside the default. A hearing was held in this matter on May 14, 2002. This matter is now ready of disposition.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 55(b) governs the entry of default judgment. Rule 55 states, in pertinent part, that judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefore; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein.
* * *
If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
FED.R.Civ.P. 55(b)(1), (2).
For a default judgment, well-pleaded factual allegations are sufficient to establish a defendant's liability. However, the allegations of the complaint regarding the amount of damages suffered are not controlling. See Dundee Cement Co. v. Howard Pipe Concrete Products, 722 F.2d 1319, 1323-1324 (7th Cir. 1983); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977).
III. ANALYSIS
Plaintiffs Complaint alleges violations of 47 U.S.C. § 605 and 47 U.S.C. § 553 (the "Statutes"). 47 U.S.C. § 605 states in pertinent part that:
[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.47 U.S.C. § 605(a).
Similarly, 47 U.S.C. § 553 provides in relevant part that "[n]o person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." 47 U.S.C. § 553(a)(1).
Under §§ 605 and 553, an aggrieved person may be entitled to statutory damages against a party violating these sections:
A. For each violation of the statute, damages in the amount of between One Thousand Dollars ($1,000.00) and Ten Thousand Dollars ($10,000.00) pursuant to § 605(e)(3)(C)(i)(ii);
B. For willful violation of the statute, damages in the amount of between Ten Thousand Dollars ($10,000.00) and One Hundred Thousand Dollars ($100,000.00) pursuant to § 605(e)(3)(c)(ii);
C. For each violation of the statute, damages in the amount of between Two Hundred Fifty Dollars ($250.00) and Ten Thousand Dollars ($10,000.00) pursuant to § 553(3)(A)(ii); and
D. For willful violation of the statute, damages up to Fifty Thousand Dollars ($50,000.00) pursuant to § 553(3)(B);
E. Full costs, including reasonable attorneys' fees, pursuant to § 605(e)(3)(B)(iii).See Pl.'s Mem. in Supp. of Mot. for Default J. at ¶ 3.
It is Plaintiffs discretion whether to elect to receive actual or statutory damages. 47 U.S.C. § 605(e)(3)(C)(i) ("Damages awarded by any court under this section shall be computed, at the election of the aggrieved party, in accordance with either of the following subclauses . . ."); see also Cable/Home Communication Corp. v. Network Prod., Inc., 902 F.2d 829, 850 (11th Cir. 1990) (stating that an aggrieved party may elect to receive actual or statutory damages). Pursuant to §§ 605(e)(3)(C)(i)(II) and 605(e)(3)(C)(ii), Plaintiffs Complaint requests statutory damages in the amount of ten thousand dollars ($10,000.00) and one hundred thousand dollars ($100,000.00), respectively. Plaintiff also requests attorney's fees under § 605(e)(B)(iii) in the amount of one thousand three hundred ninety two dollars ($1,392.00) and costs in the amount of two hundred fifty nine dollars ($259.00). Additionally, Plaintiff seeks statutory damages of ten thousand dollars ($10,000.00) pursuant to § 553(3)(A)(ii), and fifty thousand dollars ($50,000.00) under § 553(3)(B).
In support of its Motion for Default Judgment, Plaintiff has attached the Affidavit ("Declaration") of Marcus Corwin, National's President, to attest to the facts contained in the Complaint and the Memorandum of Law in Support of Plaintiffs Motion for Default Judgment. Also attached to Plaintiffs Motion is the Affidavit of Otic Campbell attesting to the fact that the Event was exhibited by the Defendants on November 11, 2000, and describing the number of patrons viewing the Event. Finally, Plaintiff has attached to the Motion the Affidavit of Julie Beth Teicher, National's attorney, attesting to the attorney's fees and costs incurred on behalf of National in this case.
Based on the pleadings, Defendant is liable for conduct that violates both 47 U.S.C. § 605 and § 553. See e.g., United States v. Norris, 34 F.3d 530 (7th Cir. 1994); Kingvision Pay-Per-View v. Owens, 982 F. Supp. 803, 805 (D. Kan. 1997); TCI Cablevision of New England v. Pier House Inn, Inc., 930 F. Supp. 727, 735 (D.R.I. 1996); but see Kingvision Pay-Per-View v. Arias, 2000 WL 20973, at *2 n. 7 (N.D.Cal. Jan. 7, 2000); International Cablevision, Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir. 1996). In its proposed Judgment by Default, Plaintiff only requests $10,000.00 per alleged violation of §§ 605 and 553, for a cumulative total of $20,000.00. See e.g., Spencer Promotions, Inc. v. 5th Quarter Enterprises, 1996 WL 438789, at *7 (N.D.Cal. Feb.21, 1996). Plaintiff also requests attorney's fees in the amount of $1,392.00 and costs in the amount of $259.00. The amounts requested as attorney's fees and costs are reasonable and are required to be assessed under § 605. At oral argument, Plaintiffs counsel indicated Plaintiff was no longer seeking damages for willful violation.
IV. CONCLUSION
Plaintiffs Motion for Default Judgment is GRANTED and Judgment will be entered in the amount of $21,651.00, as requested in the proposed Judgment by Default.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion for Default Judgment ( Docket # 11, filed April 11, 2002) is GRANTED.