United States District Court, C.D. Illinois, Springfield Division
SUE E. MYERSCOUGH, District Judge.
This matter is before the Court on Plaintiff Joe Hand Promotions, Inc.'s Motion for Default Judgment (d/e 18). For the reasons explained below, the Court awards the sum of $1, 000 in statutory damages, no enhanced damages, and $2, 278.50 in attorney's fees and costs. The Court therefore enters final judgment against Defendant Jettery Hibbard, individually and d/b/a Cedar Club, and in favor of Plaintiff in the total amount of $3, 278.50.
In September 2014, Plaintiff filed a Complaint in the Northern District of Illinois, Eastern Division, alleging that Defendant knowingly and willfully violated certain provisions of the Communications Act of 1934, as amended (47 U.S.C. § 605 et seq.) and the Cable and Television Consumer Protection and Competition Act of 1992, as amended (47 U.S. § 553 et seq.). Specifically, Plaintiff alleged that Defendant unlawfully intercepted and exhibited "Ultimate Fighting Championship 167: Georges St-Pierre v. Johny Hendricks" (the Program) on November 16, 2013.
Defendant was served on October 1, 2014. See Return of Service (d/e 5). On January 14, 2015, the Honorable Robert W. Gettleman of the United States District Court for the Northern District of Illinois entered an order of default against Defendant. Minute Entry (d/e 7). On March 16, 2015, the court found that venue was improper in the Northern District of Illinois and transferred the case to the Central District of Illinois, where all the events giving rise to the claim occurred. See Order (d/e 15).
Because Defendant failed to appear, the allegations of Plaintiff's complaint are deemed admitted. See O'Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 940 (7th Cir. 2011). According to the allegations in the Complaint, Plaintiff is a commercial distributor of sporting events. Compl. ¶ 16. By contract, Plaintiff paid for and was granted the exclusive nationwide television distributions rights of the Program. Compl. ¶ 14. Plaintiff entered into subsequent sublicensing agreements with various commercial entities throughout North America, including within the State of Illinois. Plaintiff granted those entities limited sublicensing rights, specifically the rights to publicly exhibit the Program to patrons within their respective establishments. Id. ¶ 15.
Defendant is the owner, officer, director, shareholder, and/or principal of the Cedar Club in Quincy, Illinois. Compl. ¶ 8. Defendant was an individual with supervisory capacity and control over the activities occurring within the Cedar Club on November 16, 2013, and he received a financial benefit from the operation of the Cedar Club on November 16, 2013. Compl. ¶¶ 9, 10.
Defendant, with full knowledge that the Program was not to be intercepted and exhibited by entities unauthorized to do so, did unlawfully publish, divulge, and exhibit the Program at the Cedar Club. Compl. ¶ 17. Said unauthorized interception and exhibition was done willfully and for the purposes of direct or indirect commercial advantage or private financial gain. Id.
On August 13, 2015, Plaintiff filed a Motion for Default Judgment, which included a brief statement of the relevant law and supporting authorities upon which Plaintiff relies. Plaintiff supported the Motion with Affidavits and the Rate Card showing what Defendant would have had to pay had Defendant ordered the Program from Plaintiff. See Ex. B, C, D (d/e 18-2, 18-3, 18-4).
Plaintiff cannot recover under both § 553 and § 605 because those sections target two different types of piracy. See United States v. Norris, 88 F.3d 462, 469 (7th Cir. 1996) (finding "Congress intended for § 605 to apply to the unlawful interception of cable programming transmitted through the air, while it intended for § 553 to apply to the unlawful interception of cable programming while it is actually being transmitted over a cable system"); Joe Hand Promotions, Inc. v. Kaczmar, No. 08 C 2910, 2008 WL 4776365, at *2 (N.D. Ill. Oct. 29, 2008). Consequently, Plaintiff seeks judgment and statutory damages only under § 605. See J & J Sports Productions, Inc. v. Smith, No. 14 C 2955, 2014 WL 3811090, at *2 (N.D. Ill. July 31, 2014) (noting that while it was unclear at what point the alleged interception occurred-over a cable system or satellite broadcast-the plaintiff was deprived of the opportunity to conduct discovery because the defendant did not appear and, in any event, "the practical impact of which statute applies is nil"). Plaintiff seeks statutory damages of $3, 400, enhanced damages of $5, 000, and attorney's fees and costs of $2, 878.50, for a total judgment of $11, 278.50.
Because Defendant failed to answer the Complaint, Defendant is deemed to have unlawfully intercepted the Program and shown the Program to the patrons of the Cedar Club. Joe Hand Promotions, Inc. v. Ewer, No. 09-C-612, 2009 WL 3269658, at *1 (E.D. Wis. Oct. 8, 2009). Defendant is also deemed to have done so willfully and for the purposes of commercial advantage or private financial gain. Id. Further, Defendant has forfeited his ability to contest his personal liability for the violation alleged by Plaintiff because Defendant is deemed to have had the necessary supervisory control over the interception of the Program and received the financial benefit of the same. Id. at *2 (citing J & J Sports Productions, Inc. v. Ribeiro, 562 F.Supp.2d 498, 501 (S.D. N.Y. 2008) (individual who was officer, director, shareholder, and/or principal of the corporation that operated the bar was liable in her individual capacity for the bar's unlawful interception and exhibition of pay-per-view boxing match, where the individual had supervisory control over interception and received a financial benefit therefrom)).
Under § 605, a party may elect to recover: (1) actual damages suffered by him and any profits of the violator; or (2) statutory damages for each violation of not less than $1, 000 or more than $10, 000. 47 U.S.C. § 605(e)(3)(C)(i). Plaintiff seeks statutory damages.
In addition, in any case in which the Court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the Court may increase the award of damages by an amount of not more than $100, 000 for each violation of § 605(a). 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff is also entitled to attorney's fees. 47 U.S.C. § 605(e)(3)(B)(iii). The calculation of statutory and enhanced damages is within the Court's discretion. See Smith, 2014 WL 3811090, at *2; 47 U.S.C. § 605(e)(3)(C)(i)(II) (providing for statutory damages "as the court considers just"); 47 U.S.C. § 605(e)3)(C)(ii) (providing that ...