United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion for
Default Judgment against Defendants Stephen O. Foster,
individually and d/b/a City Life Lounge and City Life, LLC,
an unknown business entity d/b/a City Life Lounge
(collectively, “Defendants”) [Doc. No. 11].
Plaintiffs filed this action on September 11, 2018, alleging
violations of 47 U.S.C. §§ 553 and 605. In its
Complaint, Plaintiff alleges it has exclusive nationwide
commercial distribution rights to the “Floyd
Mayweather, Jr. v. Andre Berto WBA/WBC Welterweight
Championship Fight Program” telecast (the
“Program”). The Program was broadcast on
September 12, 2015 and included the main event between
Mayweather and Berto, undercard bouts, televised replay, and
color commentary. Plaintiff alleges Defendants violated the
Federal Communications Act by intercepting, receiving,
publishing, divulging, displaying and/or exhibiting the
Program without paying for the right to do so from Plaintiff.
December 21, 2018, Plaintiff filed a Motion for Entry of
Clerk's Default. The Clerk of Court entered an order of
default against Defendants on December 27, 2018. Plaintiff
filed a Motion for Default Judgment on January 10, 2019. In
its Motion for Default Judgment, Plaintiff seeks relief only
under 47 U.S.C. § 605, and not under § 553. Section
605(e)(3)(C)(i)(II) allows an award of statutory damages of
not less than $1, 000 and not more than $10, 000 for each
violation of § 605. Section 605(e)(3)(C)(ii) permits
this Court, in its discretion, to award up to $100, 000 in
additional damages where “the violation was committed
willfully and for the purposes of direct or indirect
commercial advantage or private financial gain . . . .”
In its Motion for Default Judgment, Plaintiff seeks $10, 000
in statutory damages pursuant to 47 U.S.C. §
605(e)(3)(C)(i)(II) and $25, 000 in enhanced statutory
damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii). In
addition, Plaintiff seeks costs and attorney's fees
pursuant to 47 U.S.C. § 605(e)(3)(B)(iii).
have provided documentation supporting their assertion that
they are entitled to relief. The documentation includes:
organizational records for City Life, LLC from the Missouri
Secretary of State's Office, a declaration of
Plaintiff's counsel, an affidavit of Plaintiff's
investigator who observed the Program's exhibition at
City Life, photos of the exterior of City Life, and the
affidavit of Plaintiff's President with the Television
License Agreement for the Program and the “rate
card” for the Program. Plaintiff's investigator
stated in her affidavit that City Life had a maximum
occupancy of 50 patrons, and that three to five patrons were
present during the hour she was at City Life. Plaintiff has
not yet submitted its expenses and attorney's fees.
the Clerk of Court has entered default against a defendant,
the “allegations of the complaint except as to the
amount of damages are taken as true.” Mueller v.
Jones, No. 2:08CV16 JCH, 2009 WL 500837, at *1 n.2 (E.D.
Mo. Feb. 27, 2009) (quoting Brown v. Kenron Aluminum
& Glass Corp., 477 F.2d 526, 531 (8th Cir. 1973)).
The Court finds that, accepting the allegations in
Plaintiff's complaint as true, Plaintiff has established
that it is entitled to damages against Defendants for a
willful violation of 47 U.S.C. § 605 for the purpose of
the amount of damages, Plaintiff claims that the requested
$10, 000 in statutory damages and $25, 000 in enhanced
statutory damages are necessary to achieve the deterrent
effect of the statute. The “rate card” shows that
Plaintiff's licensing fee for the Program was $2, 000.
Plaintiff's investigator saw a maximum of five patrons
while she was at City Life, and was not charged a cover
charge. The Court finds that statutory damages in the amount
of $2, 000 are reasonable, and that enhanced statutory
damages in the amount of $3, 000 are appropriate to achieve
the necessary deterrent effect of the statute.
IT IS HEREBY ORDERED that Plaintiffs'
Motion for Default Judgment, [Doc. No. 11], is
IS FURTHER ORDERED that Plaintiffs are awarded $5,
000 in statutory damages.
IS FURTHER ORDERED that Plaintiffs are awarded
reasonable costs and attorney's fees, and that Plaintiff
shall submit its Motion for Costs and Attorney's Fees to
the Court, including affidavits in support of ...