Joe Hand Promotions, Inc. v. Maamo
Filing
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ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT 23 (Illston, Susan) (Filed on 8/10/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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No. C 11-05569 SI
JOE HAND PROMOTIONS, INC.,
ORDER GRANTING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT
Plaintiff,
v.
AHED A. MAAMO,
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Defendant.
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On August 10, 2012, the Court held a regularly-noticed hearing on plaintiff's motion for
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default judgment. Plaintiff appeared through counsel. No one appeared on behalf of defendant.
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The Court GRANTS plaintiff’s motion for default judgment.
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BACKGROUND
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Plaintiff, the exclusive licensor of rights to exhibit certain closed circuit and pay-per-view sports
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programming, brought suit against defendant Ahed A. Maamo, dba Mezzas Pizza & Grill, operating at
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34145 Fremont Blvd., Fremont, CA. The complaint alleges that defendant showed a program in his
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establishment without a license. Plaintiff’s complaint alleges that defendant is liable under the Federal
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Communications Act, 47 U.S.C. § 605 et seq., for receiving, intercepting and assisting in the receipt or
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interception of licensed programming.1 Plaintiff alleges it secured the domestic commercial exhibit
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47 U.S.C. § 605 prohibits the unauthorized interception of satellite programming. Plaintiff
also alleges that defendant is liable under 47 U.S.C. § 553, which prohibits unauthorized interception
of cable programming. Plaintiff does not allege, in either the complaint or in the motion for default
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right to broadcast and license Ultimate Fighting Championship 121: Rampage Johnson v. Lyoto
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Machida, including the undercard bouts and commentary (“Program”). Plaintiff asserts that had
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defendant wished to legally broadcast the Program, the cost would have been $900. Plaintiff’s hired
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private investigator was present on the evening of the fight, November 20, 2010, in defendant’s
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establishment and saw one of the undercard bouts in the Program. See Affidavit of Mark Gerstle.
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Plaintiff filed a complaint against defendant, who never responded. The Clerk entered default against
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defendant on June 8, 2012.
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DISCUSSION
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United States District Court
For the Northern District of California
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The Federal Communications Act, 47 U.S.C. § 605 et seq., prohibits commercial establishments
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from intercepting and broadcasting to its patrons satellite cable programming. The Act allows an
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aggrieved party to bring a civil action in federal district court and permits that party to elect an award
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of either statutory or actual damages. See 47 U.S.C. § 605(e)(3)(C)(I). The statute allows the court to
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award between $1,000 and $10,000 for each violation of section 605 as it considers just. Id. at §
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605(e)(3)(C)(i)(II). The Court may increase its award by not more than $100,000 when the violation
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has been “committed willfully and for purposes of direct or indirect commercial advantage or private
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financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff’s application for default judgment contends that
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defendant’s violation of 47 U.S.C. § 605 et seq. was willful and that this Court should enter default
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judgment in the amount of the statutory maximum, $110,000 plus $900 for conversion damages.
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This Court declines to grant plaintiff’s request for the statutory maximum. The allegations in
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a complaint regarding the monetary amount of damages that should be granted in a default judgment
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are not controlling, and “the mere assertion that defendants acted willfully is insufficient to justify
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enhanced damages.” Kingvision Pay-Per-View Ltd. v. Backman, 102 F. Supp. 1196, 1198 (N.D. Cal.
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2000).
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Communications Act have cited such factors as the repeated violation of the Act, the intent to profit
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from the violations and actual profit derived from the violation. Id. at 1197-98. Plaintiff’s papers do
Courts that have awarded enhanced damage awards due to willful violations of the
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papers which method of transmission defendant used, but plaintiff seeks damages solely under 47 U.S.C.
§ 605.
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not disclose whether defendant advertised the broadcast and plaintiff’s affiant did not pay a cover charge
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to enter defendant’s establishment. According to the affidavit of Mr. Gerstle, the capacity of defendant’s
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establishment is “50” people, but during three separate head counts only 5 - 8 patrons were present.
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Therefore, the facts indicate that the establishment did not intend to and did not profit from the
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broadcast. There are no allegations that defendant is a repeat offender.
“Courts in this district have considered several cases involving pirating of closed-circuit sports
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broadcasts and, absent a showing of egregious wrongdoing, generally have awarded damages slightly
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over the statutory minimum.” Universal Sports Network v. Jimenez, No. C–02–2768–SC, 2002 WL
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31109707, at *1 (N.D. Cal. Sept. 18, 2002). Therefore the Court finds that an enhanced damage award
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United States District Court
For the Northern District of California
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is not warranted under the statute. Under 47 U.S.C. § 605(e)(3) the Court may award statutory damages
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between $1,000 and $10,000 for a violation of the Act. Based on the facts alleged – including the fact
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that the license fee was $900, the establishment did not charge a cover fee, did not advertise the
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broadcast, and there were only a handful of patrons – the Court finds that an award of $2,900 is
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appropriate.
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Plaintiff also requests default judgment on its state law claim of conversion. The Court finds
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that the statutory damages in the amount of $2,900 sufficiently compensates plaintiff, and this case does
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not present a set of circumstances where an additional award might be warranted. Further, plaintiff’s
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conversion claim raises what one judge in the Eastern District of California has called “the
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thought-provoking question of whether an interest in intangible property such as an exclusive license
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to distribute a broadcast signal is the proper subject of a claim of conversion under California law.” See
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J & J Sports Productions, Inc. v. Hernandez, No. 09-CV-3389 GEB KJN, 2010 WL 1980186, *6 n.12
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(E.D. Cal. May 17, 2010). California state and federal courts have reached varying conclusions.
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Compare, e.g., Fremont Indem. Co. v. Fremont Gen. Corp., 148 Cal. App. 4th 97, 119 (Ct. App. 2007)
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(noting California courts' traditional refusal to recognize as conversion the unauthorized taking of
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intangible interests not merged with or reflected in something tangible), with DIRECTV, Inc. v. Pahnke,
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405 F. Supp. 2d 1182, 1189 (E.D. Cal. 2005) (observing that courts have relaxed tangibility requirement,
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and granting summary judgment for conversion of satellite broadcast programming) and Don King
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Prods./Kingvision v. Lovato, 911 F. Supp. 419, 423 (N.D. Cal. 1995) (finding that plaintiff’s exclusive
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rights to distribute program in California qualified as right to possession of property under conversion
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claim).
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CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion for default judgment. Docket
No. 23. The Court awards $2,900.
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IT IS SO ORDERED.
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United States District Court
For the Northern District of California
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Dated: August 10, 2012
SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE
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