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Joe Hand Promotions, Inc. v. Ballinrobe Development, Inc.

United States District Court, D. New Jersey

June 20, 2017

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
BALLINROBE DEVELOPMENT, INC., et al., Defendants.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiff brings this action pursuant to the Communication Act of 1934 for unauthorized interception and television broadcast of an Ultimate Fighting Championship (“UFC”) event. 47 U.S.C. § 605. The matter comes before the Court on Plaintiff's unopposed motion for default judgment. See Fed. R. Civ. P. 55(b)(2). The motion is GRANTED and Plaintiff is awarded $4, 855 in damages, inclusive of attorneys' fees and costs, pursuant to the Judgment and Order accompanying this opinion.

         I. BACKGROUND

         Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) is a closed-circuit distributor of sports and entertainment programming. Aff. of J. Hand (“Hand Aff.”) ¶ 3, ECF No. 7-3. Plaintiff contracted with non-party Zuffa LLC d/b/a Ultimate Fighting Championship for the exclusive right to sublicense the exhibition of the television broadcast, “UFC 189: Mendes v. McGregor, ” scheduled for July 11, 2015. Hand Aff. at ¶ 3; Distributorship Agreement, ECF No. 7-5.[1] Plaintiff entered into subsequent sublicense agreements with commercial establishments in New Jersey to exhibit the Program to their patrons. Complaint at ¶ 9. Plaintiff charged commercial customers a fee based on the maximum fire code capacity of the establishment. Hand Aff. at ¶ 7. Plaintiff hires auditors and law enforcement personnel to identify signal pirates. Id. at ¶¶ 4-6. To ensure that auditors only visit illegal locations, Plaintiff distributed to auditors a list of customers who paid the required fee to exhibit the Program. Id. at ¶ 6.

         Defendants Ballinrobe Development, Inc. and Art O'Neill own and operate Art O'Neill's Pub (“Bar”), located in North Arlington, New Jersey. Complaint at ¶ 2. From 11 P.M. to 11:20 P.M. on July 11, 2015, Plaintiff's investigator observed the Program being displayed on one television in the back of the Bar. Aff. of G. Castillo (“Castillo Aff.”) ¶ 3, ECF 7-2. Defendants had not paid Plaintiff a fee to display the fight. Id. at ¶ 8. The investigator estimated that the maximum fire code capacity of the Bar was 45 people, and he observed approximately 30 people in the Bar while he was there. Id. at ¶ 6.

         Plaintiff commenced this action on February 24, 2017. ECF No. 1. Defendants have failed to answer or otherwise respond to the Complaint. Pursuant to Rule 55(a), the Clerk entered a default against Defendants on April 18, 2017. ECF No. 6. Plaintiff filed the instant motion for default judgment on April 26, 2017. ECF No. 7. No opposition has been filed. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff brings this civil action pursuant to 47 U.S.C. § 605.

         II. LEGAL STANDARD

         To enter a default judgment, the Court must first determine whether Plaintiff states a sufficient cause of action, taking as true the factual allegations of the Complaint. See Chanel, Inc. v. Gordashevsky, 558 F.Supp.2d 532, 535-36 (D.N.J. 2008). Once a cause of action has been established, the district courts must make explicit factual findings as to three factors: (1) whether the party subject to default has a meritorious defense; (2) the prejudice suffered by the party seeking default; and (3) the culpability of the party subject to default. Joe Hand Promotions, Inc. v. Waldron, 2013 WL 1007398, at *4 (D.N.J. Mar.13, 2013) (citing Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008); Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.1987)). Although the facts pled in the Complaint are accepted as true, Plaintiff must prove damages. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990).

         III. DISCUSSION

         A. Liability

         Section 605 prohibits wireless interception of proprietary communications. See J & J Sports Productions, Inc. v. Castro, No. 14-cv-557, 2015 WL 389381 at *2 (D.N.J. Jan. 28, 2015); Joe Hand Promotions, Inc. v. Cerreto, No. 13-cv-7647, 2014 WL 4612101 at *2 (D.N.J. Sept 15, 2014). Relief under § 605 for the unauthorized interception and broadcast of television programming requires a showing that defendant “(1) intercepted a broadcast; (2) [was] not authorized to intercept the broadcast; and (3) showed the broadcast to others.” Waldron, 2013 WL 1007398, at *3 (quoting J & J Sports Productions, Inc. v. Edrington, No. 10-3789, 2012 WL 525970 at *2 (D.N.J. Feb. 16, 2012)).

         Plaintiff properly alleges each of these elements. The Complaint alleges that Defendants intercepted the Broadcast and exhibited the Broadcast to their patrons. See Complaint at ¶¶ 11-12. Plaintiff's investigator observed the Program being exhibited to Defendants' patrons. Castillo Aff. at ¶ 4. The Complaint also states and Plaintiff's President swore that Plaintiff possessed commercial exhibition rights to the “UFC 189: Mendes v. McGregor” broadcast. Id. at ¶ 1; Hand Aff. ¶ 3. Further, Plaintiff's President swore that the Program cannot be intercepted unless such interception was willful. Hand Aff. at ¶ 9. This evidence satisfies the elements of a Section 605 claim.

         B. Appropriateness of Default Judgment

         Having established a cause of action, the Court now makes factual findings as to: (1) whether the party subject to default has a litigable defense; (2) the prejudice suffered by the party seeking default; and (3) the culpability of the party subject to default. Waldron, 2013 WL 1007398, at *4 (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). First, no evidence indicates that Defendants have any defense to Plaintiff's allegations that Defendants displayed the Program to patrons without contracting for rights to do so. Second, Plaintiff suffers prejudice if it does not receive a default judgment because it cannot otherwise ...


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