United States District Court, N.D. Texas, Dallas Division
J&J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 14, 2013 “The One” Floyd Mayweather, Jr.
Saul Alvarez WBC Middleweight Championship Fight Program, Plaintiff,
JESUS FAVELA, individually and d/b/a TIO'S SPORT BAR a/k/a TIO'S SPORTS BAR, Defendant.
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
the court is Plaintiff's Motion for Default Judgment,
filed February 6, 2017 (Doc. 9). After careful consideration
of the motion, brief, record, and applicable law, the court
grants Plaintiff's Motion for Default
20, 2016, J&J Sports Productions, Inc. (“J&J
Sports” or “Plaintiff”) filed
Plaintiff's Original Complaint (“Complaint”)
against Jesus Favela, individually and d/b/a Tio's Sports
Bar (“Favela” or “Defendant”) (Doc.
1). J&J Sports sues Favela in this action for violation
of the Communications Act of 1934, 47 U.S.C. §§ 553
and 605 (the “Act”). J&J Sports is the
license company exclusively authorized to sublicense the
closed-circuit telecast of the September 14, 2013 “The
One”: Floyd Mayweather, Jr. v. Saul Alvarez WBC
Middleweight Championship Fight Program, including undercard
or preliminary bouts (collectively the “Event”),
at closed-circuit locations such as theaters, arenas, bars,
clubs, lounges, restaurants and the like throughout Texas.
Pl.'s Orig. Compl. 2. J&J Sports contends that on
September 14, 2013, Favela illegally intercepted the
closed-circuit telecast of the Event without its permission
at Tio's Sports Bar and did not pay the required
licensing fee. Id. at 2.
was properly served on October 12, 2016 (Doc. 6), and has not
filed an answer to the Complaint or otherwise defended this
lawsuit. J&J Sports requested the clerk to issue entry of
default on February 6, 2017, and default was entered by the
clerk on February 6, 2017 (Doc. 11). J&J Sports now
requests entry of default judgment against Favela for
statutory and additional damages. J&J Sports further
requests reasonable attorney's fees and costs.
Sports was the exclusive licensee through a licensing
agreement, and Favela did not have authorization from J&J
Sports to show the Event at his establishment. J&J Sports
possessed the proprietary right to exhibit and sublicense the
Event through a licensing agreement with the promoter of the
Event. As such, J&J 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 J&J Sports. No. agreement between
J&J Sports and Favela existed that would have allowed
Favela to broadcast the Event to patrons at Favela's
establishment. On September 14, 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
Favela's establishment. J&J Sports' auditor
observed the Event being telecast on eight televisions to
approximately 160 patrons at Favela's establishment.
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 Favela.
by failing to answer or otherwise respond to J&J
Sports' 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 J&J Sports' Original Complaint, which
the court accepts as true, and the record in this action, the
court determines that Favela is in default.
Further, based upon the record, evidence, and applicable law,
the court concludes that Favela violated 17 U.S.C. §
605, [[*] that J&J Sports is an aggrieved
party under the statute, and that it is entitled to statutory
damages and reasonable attorney's fees for Favela
statutory violation. Accordingly, the court determines that
Favela is liable to J&J 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 Favela's actions were willful and for the purpose of
direct or indirect commercial advantage or private financial
gain, the court determines that Favela is liable to J&J
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 Favela
and other commercial establishments and entities from
pirating or stealing protected communications.
court also concludes that J&J 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 J&J 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 are
speculative and unknown. If additional hours are expended
postjudgment, J&J Sports will have an opportunity to seek
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 Favela and in favor of J&J
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.