United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Joe Hand Promotions, Inc.'s Motion
for Default Judgment (ECF No. 14.) For the reasons that
follow, the motion is GRANTED. Damages are awarded in amounts
set forth below.
Joe Hand Promotions, Inc. (“Joe Hand”) is a
nationwide distributor of closed-circuit and pay-per-view
sports and entertainment programming to commercial
establishments. Joe Hand enters into sublicensing agreements
with these establishments to permit the public broadcast of
its programming. By contract, Joe Hand purchased rights to
distribute the “Ultimate Fighting Championship 171:
Lawlor v. Hendricks” broadcast scheduled for March 15,
2014, (the “Broadcast”), via closed circuit
television and encrypted satellite signal. (Compl. ¶ 14,
ECF No. 1 at 3.) Joe Hand entered into agreements with
several West Virginia commercial establishments allowing them
to distribute the Broadcast for viewing by their patrons.
(Id. ¶ 15.)
November 20, 2014, Joe Hand filed this lawsuit alleging that
Defendants Miguel's Sports Grill Inc.
(“Miguel's”) and Deborah Sergeon Nichols, its
principal, owner, or director, unlawfully intercepted and
exhibited the Broadcast for the purpose of direct or indirect
commercial advantage or private financial gain. The two-count
Complaint alleges violations of 47 U.S.C. §§ 553
and 605. Defendants have failed to answer or otherwise
respond to the Complaint despite being properly served. The
Court entered default on July 28, 2016 and now enters default
judgment is available “when the adversary process has
been halted because of an essentially unresponsive
party.” S.E.C. v. Lawbaugh, 359 F.Supp.2d 418,
421 (D. Md. 2005) (citing Jackson v. Beech, 636 F.2d
831, 836 (D.C. Cir. 1980)). Under Federal Rule of Civil
Procedure 55, which governs default judgments, “trial
judges are vested with discretion, which must be liberally
exercised, in entering . . . [default] judgments and in
providing relief therefrom.” United States v.
Moradi, 673 F.2d 725, 727 (4th Cir. 1982). The
defendant's failure to respond constitutes an admission
of the well-pleaded factual allegations in the complaint,
except as related to damages. Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780 (4th Cir. 2001). The court
must make an independent determination of damages where the
amount of the plaintiff's claim is uncertain.
Fed.R.Civ.P. 55(b). Reliance on affidavits, without an
in-person hearing, is appropriate as long as the record
supports the damages requested. Id. The Court notes
that no hearing is necessary in this case.
Hand has alleged violations of §§ 553 and 605.
However, an injured plaintiff cannot recover damages under
both § 553 and § 605, see Joe Hand Promotions,
Inc. v. Coaches Sports Bar, 812 F.Supp.2d 702, 704 (E.D.
N.C. Sept. 19, 2011) (citation omitted), and here Joe Hand
elects to pursue damages only under § 605. The Court
will consider whether Joe Hand has pleaded facts giving rise
to liability under § 605 before resolving the question
605 provides 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 . . . . ” 47 U.S.C. § 605(a). The
statute continues: “Any person aggrieved by any
violation of subsection (a) of this section or paragraph (4)
of this subsection may bring a civil action in a United
States district court.” § 605(e)(3). The
“intercepted communications” referenced in the
statute include satellite transmissions. See §
605(d)(6) (defining “any person aggrieved” as a
person who maintains “proprietary rights in the
intercepted communication by wire or radio, including
wholesale or retail distributors of satellite cable
programming”); see also Nat'l Satellite Sports,
Inc. v. Eliadis, Inc., 253 F.3d 900, 914 (6th Cir. 2001)
(concluding after discussion of the relevant legislative
history that “Congress intended to bring cable and
satellite communications under the protection of [the
Hand has alleged facts that, when accepted as true, support
liability under § 605. Joe Hand alleges that it was
granted the right to display the Broadcast via encrypted
satellite signal on March 15, 2014 and that Defendants
knowingly and intentionally intercepted its satellite
transmission and displayed the program for its patrons to
view. (Compl. ¶ 14-18.) Joe Hand provides the affidavit
of its auditor, Stoney Lee Shifflett, who was present at
Miguel's on March 15, 2014 and testifies that he observed
Miguel's airing the Broadcast on four television screens.
(Shifflett Aff. at 1, ECF No. 15-3.) Joe Hand adds that there
are several illegal methods of accessing the Broadcast,
though without discovery it is impossible to determine which
particular method Defendants employed. Nevertheless, Joe Hand
avers that its programming cannot be mistakenly, innocently,
or accidentally intercepted. (Aff. of Joe Hand Jr.,
President, at ¶ 9, ECF No. 15-1.) Joe Hand believes that
Defendants most likely “used an illegal satellite
receiver, misrepresented [their] business establishment as a
residence, or removed an authorized residential receiver from
one location to a different commercial location” to
intercept the Broadcast. (Compl. ¶ 18.)
allegations establish liability against Miguel's as well
as Nichols individually, as she “was the individual
with supervisory capacity and control over the activities
occurring within the establishment on March 15, 2014”
and received a financial benefit therefrom. (Id.
¶¶ 7-8); see Joe Hand Promotions, Inc. v.
Phillips, No. 06 Civ. 3624(BSJ)(JCF), 2007 WL 2030285,
at *3 (S.D.N.Y. July 16, 2007) (finding vicarious liability
applies where the defendant “had a ‘right and
ability to supervise' the violations, and that he had a
strong financial interest in such activities” (citation
omitted)). Accordingly, Nichols may be held jointly and
severally liable along with Miguel's for the § 605
aggrieved plaintiff may recover between $1, 000 and $10, 000
in actual or statutory damages for each violation of §
605(a). § 605(e)(3)(C)(i)(II). The statute also provides
enhanced damages of up to $100, 000 per violation for those
who violate its provisions “willfully” with the
purpose of obtaining a commercial advantage or private
financial gain. § 605(e)(3)(C)(ii). Joe Hand requests
$4500 in statutory damages and $20, 000 in enhanced damages.
estimation of actual damages would be speculative in this
case, though Joe Hand has provided some evidence to guide the
Court's calculation of its losses. Mr. Schifflett attests
that 28 patrons were present at Miguel's during the
airing of the Broadcast. (Shifflett Aff. at 2.) He estimates
the occupancy limit of Miguel's is 50 persons.
(Id.) Joe Hand calculates rates for its sublicensing
contracts based on maximum occupancy, as noted by the
“rate card” attached to Joe Hand's motion.
For an establishment of this size, Joe Hand would charge $900
for the right to display the Broadcast. (Rate Card, ECF No.
15-4.) Defendants had not paid the fee to air the Broadcast.
Joe Hand also submits a printout from Miguel's social
media page showing that Miguel advertised the broadcast of a