J&J Sports Productions, Inc. v. Garcia et al
Filing
14
FINAL DEFAULT JUDGMENT in favor of plaintiff. Case terminated on 3/22/2012.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
as Broadcast Licensee of the
June 28, 2008 “Lethal Combination”:
Pacquiao/Diaz Event,
Plaintiff,
v.
SELVIN ROLANDO GARCIA , Individually
and d/b/a GARCIA BROTHERS BAR,
Defendant.
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CIVIL ACTION H-11-2390
F INAL D EFAULT J UDGMENT
Pending before the court are the plaintiff J&J Sports Productions, Inc. (“J&J”) request for
entry of default (Dkt. 12) and motion for final default judgment and brief in support against
defendant Selvin Rolando Garcia, individually and d/b/a Garcia Brothers Bar (Dkt. 13). After
reviewing the request and motion, related filings, and applicable law, the court finds that the request
and motion should be GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, J&J Sports Productions, Inc. (“J&J”), is a broadcast licensee authorized to sublicense the closed circuit telecast of the June 28, 2008 “Lethal Combination”: David Diaz v. Manny
Pacquiao, WBC Lightweight Championship Bout (the “Event”) held at the Mandalay Bay Resort &
Casino in Las Vegas, Nevada. Dkt. 13, Exhs. A, A-1. In Texas, the Event was legally available to
commercial establishments only through an agreement with J&J. Dkt. 13, Exh. A. After receiving
sublicense fees, J&J provided these customers with electronic decoding equipment and/or the
necessary satellite coordinates to receive the signal. Id.
On June 28, 2008, at approximately 9:59 p.m., Jesse Castaneda, who is an auditor for J&J,
entered Garcia Brothers Bar at 309 North 1st Street in Harlingen, Texas 78550. Dkt. 13, Exhs. A,
A-2. He observed approximately 19 persons in the establishment and 2 televisions that were being
viewed by the patrons inside the establishment. Dkt. 13, Exh. A-2. He observed Pacquiao and Diaz
on the television monitors. Id.
J&J filed suit against Selvin Rolando Garcia, individually and d/b/a Garcia Brothers Bar, and
Charles B. Feldman, individually and d/b/a Garcia Brothers Bar on June 24, 2011, claiming
violations of 47 U.S.C. §§ 553, 605. Dkt. 1. On September 9, 2011, J&J filed a motion for
substituted service, as J&J’s process servers had been unsuccessful, despite several attempts, to serve
Garcia or Feldman. Dkt. 4. The court allowed J&J to serve both individuals by leaving a copy of
the summons, complaint, the court’s procedures, and the order for substitute service with a person
over the age of 18 at their residences or places of business. Dkt. 6. On November 27, 2011,
Feldman filed an answer in which he claimed he was not, at the time of the event in question, the
owner or manager of the Garcia Brothers Bar. Dkt. 8. On December 7, 2011, J&J filed an
unopposed motion to dismiss Feldman without prejudice, which the court granted on January 3,
2012. Dkts. 9, 10. On January 6, 2012, J&J filed a return of summons for Garcia, which included
an affidavit indicating that Garcia had been served pursuant to the court’s order for substitute service
by delivering the relevant documents to his mother, Laura Garcia, on November 8, 2011. Dkt. 11.
Garcia never filed an answer or otherwise appeared in the action. J&J therefore requests entry of a
default judgment. Dkts. 12, 13.
II. ANALYSIS
Pursuant to Rule 55 of the Federal Rules of Civil Procedure, entry of a default and default
judgment are appropriate “when a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” FED . R. CIV . P. 55(a). Under Rule 5.5 of the Local Rules of the Southern
District of Texas, a motion for default judgment must be served upon the defendant via certified
mail, return receipt requested. S.D. TEX . L.R. 5.5.
Garcia has was duly served via substitute service on November 8, 2011. Dkt. 11. The
summons explained that failing to respond to the lawsuit within 21 days after service would result
in judgment by default. Dkt. 11. Garcia has not answered or otherwise made an appearance. J&J
properly served its request for entry of default and the motion for default and the motion for default
judgment, under Local Rule 5.5, by mailing copies to Garcia via certified mail, return receipt
requested. Dkts. 12, 13. Given defendants’ failure to answer the complaint within twenty (20) days,
the court has the authority to accept all well-pleaded facts in plaintiff’s complaint as true and to
award the relief sought by plaintiff in this action.
In this case, plaintiff seeks statutory damages, additional damages, attorney’s fees, costs,
post-judgment interest, and a permanent injunction against the defendants. Dkt. 13. Under the
Federal Communications Act of 1934, 47 U.S.C. § 605(e)(3)(C)(i)(II) allows courts to award
statutory damages to a plaintiff in an anti-piracy case; § 605(e)(3)(C)(ii) allows courts to award
additional damages for willful behavior; § 605(e)(3)(B)(iii) mandates that courts award attorney’s
fees and allows courts to award full costs; and § 605(e)(3)(B)(I) permits courts to grant injunctions.1
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Even though plaintiff alleges violations of both § 553 and § 605, it is not clear that damages resulting from
one unlawful act of cable or satellite piracy are recoverable under both sections. The Fifth Circuit has not explicitly
addressed whether recovery under both sections for the same action is permissible. See Prostar v. Massachi, 239 F.3d
669, 673 (5th Cir. 2001) (recognizing the disagreement on the issue of double recovery and citing United States v.
Norris, 88 F.3d 462, 466 (7th Cir. 1996), for the proposition that a plaintiff may not recover under both sections). Even
courts holding that liability overlaps between § 553 and § 605 often have chosen to impose liability under § 605 because
it is more generous to plaintiffs. See Entm’t by J&J, Inc. v. Al-Waha Enter., Inc., 219 F. Supp. 2d 769, 775 (S.D. Tex.
2002).
Specifically, plaintiff has requested statutory damages in the amount of $10,000; additional
damages in the amount of $50,000; attorney’s fees of recovery or, alternatively, $1,000 based on four
(4) hours at an hourly rate of $250; costs; post-judgment interest; and a permanent injunction
prohibiting defendants from intercepting or exhibiting an unauthorized program in violation of the
Federal Communication Act. Dkt. 13. The court finds the requested relief to be reasonable in this
case with the exceptions that statutory damages will be awarded in the amount of $5,000; additional
damages in the amount of $10,000; attorney’s fees in the amount of $1,000; and post-judgment
interest shall accrue at the rate of 0.20% per annum.
Furthermore, J&J is entitled to recover the following conditional awards of attorney’s fees
from Garcia in the following circumstances:
a.
Ten Thousand Dollars ($10,000.00) in the event a defendant files a motion
to vacate, Rule 60 motion, motion for new trial, motion for reconsideration
or other post-judgment, pre-appeal motion that does not result in a reversal
of the judgment obtained in this action;
b.
Fifteen Thousand Dollars ($15,000.00) in the event a defendant files an
appeal to the Fifth Circuit Court of Appeals that does not result in a reversal
of the judgment obtained in this action;
c.
Five Thousand Dollars ($5,000.00) for making and/or responding to a
petition for certiorari to the U.S. Supreme Court that does not result in a
reversal of the judgment obtained in this action;
d.
Ten Thousand Dollars ($10,000.00) for an appeal to the United States
Supreme Court in the event a petition for certiorari review is granted and
does not result in a reversal of the judgment obtained in this action; and
e.
Two Thousand Five Hundred Dollars ($2,500.00) for collection of the
judgment rendered in this case, should plaintiff obtain a writ of execution,
writ of garnishment, writ of attachment or other process.
III. CONCLUSION
For the foregoing reasons, plaintiff’s requests for entry of default and motion for default
judgment are GRANTED.
This is a FINAL JUDGMENT.
Signed at Houston, Texas on March 22, 2012.
__________________________________
Gray H. Miller
United States District Judge
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