United States District Court, N.D. Texas, Dallas Division
INNOVATIVE SPORTS MANAGEMENT, INC., as Broadcast Licensee of the June 2, 2013 Honduras V. Israel Soccer Game, Plaintiff,
MARTIN E. SOLIS-MARTINEZ individually and d/b/a Mi Cocina Hondurena a/k/a Mi Cocina Hondurena Restaurant a/k/a Mi Comida Hondurena Restaurant a/k/a Mi Comida Hundureno Restaurant, Defendant.
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff's Motion for Default Judgment,
filed August 9, 2017 (Doc. 9). After careful consideration of
the motion, brief, record, and applicable law, the court
grants Plaintiff's Motion for Default
1, 2016, Innovative Sports Management, Inc.
(“Innovative Sports” or “Plaintiff”)
filed Plaintiff's Original Complaint against Martin E.
Solis-Martinez, individually, and d/b/a Mi Cocina Hondurena
(“Solis-Martinez” or “Defendant”)
(Doc. 1). Innovative Sports sues Solis-Martinez in this
action for violation of the Communications Act of 1934, 47
U.S.C. §§ 553 and 605 (the “Act”).
Innovative Sports is the license company exclusively
authorized to sublicense the closed-circuit telecast of the
June 2, 2013 Honduras v. Israel soccer game
(“Event”) at closed-circuit locations such as
theaters, arenas, bars, clubs, lounges, restaurants and the
like throughout Texas. Pl.'s Orig. Compl. 1. Innovative
Sports contends that on June 2, 2013, Solis-Martinez
illegally intercepted the closed-circuit telecast of the
Event without its permission at Mi Cocina Hondurena
Restaurant and did not pay the required licensing fee.
Id. at 2.
was properly served on September 21, 2016 (Doc. 6), and to
date has not filed an answer to the complaint or otherwise
defended this lawsuit. Innovative Sports requested the clerk
to issue entry of default on August 9, 2017, and default was
entered by the clerk on August 10, 2017 (Doc. 10). Innovative
Sports now requests entry of default judgment against
Solis-Martinez for statutory and additional damages and a
permanent injunction. Plaintiff further requests reasonable
attorney's fees and costs.
Sports was the exclusive licensee through a licensing
agreement, and Solis-Martinez did not have authorization from
Innovative Sports to show the Event at his establishment.
Innovative Sports possessed the proprietary right to exhibit
and sublicense the Event through a licensing agreement with
the promoter of the Event. As such, Innovative Sports was
licensed to show the Event at closed-circuit locations
throughout the state of Texas, and the Event was legally
available to a commercial establishment in Texas only if the
commercial establishment had an agreement with Innovative
Sports. No. agreement between Innovative Sports and
Solis-Martinez existed that would have allowed Solis-Martinez
to broadcast the Event to patrons at Solis-Martinez's
establishment. On June 2, 2013, Defendant intercepted, or
assisted in the interception of, the transmission of the
Event and broadcast or aired it for viewing by the patrons of
Solis-Martinez's establishment. Innovative Sports'
auditor observed the Event being telecast on two televisions
to approximately 40 patrons at Solis-Martinez's
is entitled to entry of a default by the clerk of the court
if the opposing party fails to plead or otherwise defend as
required by law. Fed.R.Civ.P. 55(a). Under Rule 55(a), a
default must be entered before the court may enter a default
judgment. Id.; New York Life Ins. Co. v.
Brown, 84 F.3d 137, 141 (5th Cir. 1996). The clerk of
the court has entered a default against Solis-Martinez.
by failing to answer or otherwise respond to Innovative
Sports' Original Complaint, has admitted the well-pleaded
allegations of the Complaint and is precluded from contesting
the established facts on appeal. Nishimatsu Constr. Co.
v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975) (citations omitted). Based on the well-pleaded
allegations of Innovative Sports' Original Complaint,
which the court accepts as true, and the record in this
action, the court determines that Solis-Martinez is in
based upon the record, evidence, and applicable law, the
court concludes that Solis-Martinez violated 17 U.S.C. §
605, [*] that
Innovative Sports is an aggrieved party under the statute,
and that it is entitled to statutory damages and reasonable
attorney's fees for Solis-Martinez statutory violation.
Accordingly, the court determines that Solis-Martinez is
liable to Innovative Sports in the amount of $10, 000 in
statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II).
Further, because the record reflects that
Solis-Martinez's actions were willful and for the purpose
of direct or indirect commercial advantage or private
financial gain, the court determines that Solis Martinez is
liable to Innovative Sports in the amount of $50, 000 in
damages for willful acts under 47 U.S.C. §
605(e)(3)(C)(ii). Moreover, the court determines that such
damages are necessary to deter Solis-Martinez and other
commercial establishments and entities from pirating or
stealing protected communications.
court also concludes that Innovative Sports is entitled to
reasonable attorney's fees; however, the court disagrees
that reasonable attorney's fees should be based on 33
percent of the damages awarded. The court does not believe
that such a fee is reasonable under the circumstances of the
case. The court believes that the lodestar method, that is,
the number of hours reasonably expended times a reasonable
hourly rate, should apply in this case. The lodestar method
adequately compensates Plaintiff's counsel, Mr. David M.
Diaz, in this case for legal services performed.
Plaintiff's counsel estimates that he has expended
approximately four hours on this litigation and believes that
a blended hourly rate of $250 is reasonable for antipiracy
litigation, considering his firm's experience with
antipiracy cases. The court is familiar with Plaintiff's
counsel's law firm and agrees that an hourly rate of $250
is certainly reasonable under the circumstances of this case.
The court has awarded this hourly rate in prior cases handled
by Mr. Diaz. Accordingly, the court awards Innovative Sports
$1, 000 as reasonable attorney's fees in this case. The
court declines to award attorney's fees for postjudgment
work, including appellate matters, as the amount of such fees
is speculative and unknown. If additional hours are expended
postjudgment, Innovative Sports will have an opportunity to
seek such fees.
reasons herein stated, the court grants
Plaintiff's Motion for Default Judgment. As required by
Federal Rule of Civil Procedure 58, the court will issue a
final default judgment against Solis-Martinez and in favor of
Innovative Sports in the total amount of $61, 000, which
consists of $10, 000 as statutory damages; $50, 000
additional statutory damages; and $1, 000 as reasonable
attorney's fees. Postjudgment interest will accrue on the
judgment at the applicable federal rate of
1.97% from the date of its entry until it is
paid in full.