Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
The plaintiff's motion for default judgment [29-1] is granted as follows. As to Count I, the court awards the plaintiff $2,090 in statutory damages, $5,250 in enhanced damages and the requested attorneys' fees and costs, which the court concludes are reasonable, in the amount of $3,327.25, for a total award of $10,667.50. Counts II and III are dismissed with prejudice and the clerk is directed to enter a Rule 58 judgment terminating this case.
O[ For further details see text below.]
Plaintiff J&J Sports Productions, Inc. brought suit against defendant, Arturo Aceves d/b/a Villa's Restaurant, seeking to recover for the alleged unlawful interception and exhibition of a boxing match entitled "Danger Zone: The Oscar De La Hoya v. Richardo WBC Middleweight Championship Fight Program" (the "Program"), which aired on May 6, 2006. The plaintiff's first amended complaint alleges three counts: Count I under 47 U.S.C. § 605; Count II under 47 U.S.C. § 553; and Count III for conversion.
After being served, the defendant never answered or appeared and the court entered default under Fed. R. Civ. P. 55(a) on January 8, 2009. Currently before the court is the plaintiff's motion for default judgment and prove-up.
The facts alleged in the plaintiff's complaint are deemed true as a result of the defendant's default. In re Catt, 368 F.3d 789, 793 (7th Cir. 2004). The plaintiff entered into sublicensing agreements with various commercial entities throughout North America granting them rights to publicly exhibit the Program within their respective establishments. The plaintiff expended substantial monies marketing, advertising, promoting, administering and transmitting the Program to its customers. With full knowledge that the Program was not to be intercepted, received, or exhibited by entities unauthorized to do so, the defendant willfully and unlawfully published, divulged and exhibited the Program at the time of its transmission.
As to the current motion, the plaintiff has submitted the affidavit of one Christine Gier attesting to the fact that on May 6, 2006, she entered Villa's Restaurant in Round Lake, Illinois at approximately 9:24 p.m and observed two television sets broadcasting boxing matches. However, Ms. Gier's affidavit states that:
We walked in at the very end of Fight no. 3. We watched the very beginning of the Fight for Kassim Ouma who was wearing yellow & orange boxers he was of African American Decendent [sic]. Marco Antonio Rubio was wearing Green/White/Red Shorts.
The plaintiff has attached to its motion the printout of a webpage indicating that the fight between Ouma and Rubio described by the investigator was an undercard fight of the De Lay Hoya/Mayorga fight, which was part of the Program misappropriated by the defendant.
The plaintiff states that it is moving for judgment only under Count I, 47 U.S.C. § 605. J & J Sports Productions, Inc. v. Resendiz, 08 C 4121, 2009 WL 1953154, at *2 (N.D.Ill. Jul. 2, 2009)("J & J is permitted to plead its § 553 and § 605 claims in the alternative, but it may recover damages only under one of those statutes."). The plaintiff does not seek judgment under Count III, the conversion count.
The plaintiff states that it is seeking damages only under 47 U.S.C. § 605, Count I, which was pled in the alternative to Count II under § 553. As noted by another court in this district, "J & J is permitted to plead its § 553 and § 605 claims in the alternative, but it may recover damages only under one of those statutes."
J & J Sports Productions, Inc. v. Resendiz, 08 C 4121, 2009 WL 1953154, at *2 (N.D. Ill. Jul. 2, 2009)(citation omitted). The plaintiff does not seek ...