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Joe Hand Promotions, Inc. v. Santana

United States District Court, M.D. Florida, Orlando Division

November 1, 2019

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
LIDIA SANTANA, MANUEL SANTANA, and MALI & SONS INC., Defendants.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY, UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motions:

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 PART.

         I. BACKGROUND.

         On 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.[1]

         Based 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.[2] 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.

         On 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.

         On 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.

         Attached 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.

         Pursuant 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:

         1) statutory damages of $10, 000.00, under 47 U.S.C. § 605(e)(3)(C)(i)(II); and

         2) enhanced statutory damages of $30, 000.00, under 47 U.S.C. § 605(e)(3)(C)(ii).[3]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 ΒΆ 12. ...


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