United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
MOTION: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
WITH SUPPORTING MEMORANDUM OF LAW (Doc. No. 29)
FILED:August 8, 2019
THEREON it is RECOMMENDED that the motion be GRANTED
IN PART AND DENIED IN PART.
MOTION: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
WITH SUPPORTING MEMORANDUM OF LAW (Doc. No. 34)
FILED:October 8, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED IN PART AND DENIED IN
January 22, 2019, Joe Hand Promotions, Inc.
(“Plaintiff”) filed a complaint (the
“Complaint”) against Lidia Santana, Manuel
Santana, and Mali & Sons Inc. (collectively,
“Defendants”), alleging violations of the
Communications Act of 1934, 47 U.S.C. § 605 (Count I),
47 U.S.C. § 553 (Count II), and the United States
copyright laws, 17 U.S.C. § 501(a) (Count III). Doc. No.
1. In the Complaint, Plaintiff alleges it is the exclusive
owner of the distribution and broadcast rights and the
copyright owner of the exclusive rights of distribution and
public performance as to commercial establishments of the
“Mayweather vs. McGregor Match” (the
“Broadcast”), which took place on August 26,
2017. Id. at ¶ 6. The Broadcast travelled
“via satellite uplink and then [was] re-transmitted to
cable systems and satellite companies via a satellite
signal[, ]” eventually to Plaintiff's customers,
who paid Plaintiff a fee to obtain the Broadcast.
Id. at ¶ 22. Plaintiff alleges that Defendants,
without paying Plaintiff a license fee, knowingly and
“unlawfully intercepted, received and/or descrambled
Plaintiff's Broadcast” and exhibited the Broadcast
in Defendants' restaurant and bar, the Orlando Grill
& Restaurant (the “Orlando Grill”).
Id. at ¶ 25. Plaintiff further alleges that
Defendants ordered the Broadcast for residential use and
knowingly utilized an illegal satellite receiver or other
device to intercept the Broadcast signal. Id. at
¶¶ 26, 27.
on its allegations that Defendants willfully violated 47
U.S.C. § 605(a), which prohibits the unauthorized
transmission and exhibition of interstate communications,
Plaintiff seeks statutory damages under 47 U.S.C.
§§ 605(e)(3)(C)(i)(II) and enhanced statutory
damages under 605(e)(3)(C)(ii). Id. at ¶ 31.
Plaintiff also requests attorneys' fees and costs under
47 U.S.C. § 605. Id. at ¶ 32. These same
allegations form the basis for Plaintiff's contention
that Defendants violated the copyright laws. Id. at
¶¶ 40-47. Plaintiff seeks statutory damages,
attorney's fees and costs for the copyright violations
pursuant to 17 U.S.C. §§ 504(c)(1), (c)(2), and
505. Id. at ¶¶ 47-48.
February 26, 2019, Defendants were served with the Complaint.
Doc. Nos. 12-15. On March 26, 2019, Defendants Lidia and
Manuel Santana responded to the Complaint. Doc. No. 11.
Defendant Mali & Sons Inc. did not file a response to the
Complaint, and on April 29, 2019, the Clerk entered a default
against it. Doc. No. 18. On August 20, 2019, pursuant to the
Court's order, Doc. No. 30, the Clerk entered defaults
against Lidia and Manuel Santana, due to their failure to
comply with the Court's previous orders directing them to
file Certificates of Interested Persons and Corporate
Disclosure Statements, Doc. No. 31.
August 8, 2019, Plaintiff filed a motion for default judgment
against Mali & Sons Inc., Doc. No. 29, and on October 8,
2019, Plaintiff filed a motion for default judgment against
Lidia and Manuel Santana, Doc. No. 34 (the
“Motions”). In the Motions, Plaintiff elects to
proceed under Count I (Communications Act of 1934, 47 U.S.C.
§ 605) and Count III (United States copyright laws, 17
U.S.C. § 501(a)) and seeks a default judgment on both
counts. Doc. No. 29 at 13, 19; Doc. No. 34 at 13, 19.
Defendants did not file a response to the Motions.
to the Motions is an August 7, 2017, affidavit of Marc
Middleton, which avers the following: On August 26, 2017, he
entered the Orlando Grill at approximately 11:11 p.m. Doc.
No. 29-1 at 1. Middleton observed one projection screen
displaying the Broadcast. Id. Middleton watched the
second round of the match from the Broadcast. Id. In
Middleton's estimation, the Orlando Grill has a capacity
of approximately 201 to 300 people. Id. at 2.
Middleton estimated that approximately 200 people were
present while he was there. Id. at 1.
to 47 U.S.C. § 605, Plaintiff requests a judgment of
$40, 000.00 in damages and fees, jointly and severally,
against Defendants, and representing:
statutory damages of $10, 000.00, under 47 U.S.C. §
enhanced statutory damages of $30, 000.00, under 47 U.S.C.
§ 605(e)(3)(C)(ii).Doc. No. 29 at 15, 16, 24; Doc. No. 34
at 14, 16, 24. With respect to its claim for statutory
damages of $10, 000.00, Plaintiff states that Defendants
unlawfully exhibited the Broadcast for commercial advantage.
Doc. No. 29 at 15; Doc. No. 34 at 14. In support of same,
Plaintiff attaches the affidavit of Joe Hand, Jr.,
Plaintiff's president, who avers that intercepting
Plaintiff's encrypted satellite signal without a
sublicense agreement cannot be accomplished mistakenly or
innocently. Doc. No. 29-1 at ¶ 12. ...