United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR
ENTRY OF DEFAULT JUDGMENT AS TO CRUISIN1, INC. AND DISMISSING
DEFENDANTS TIGER WHITE AND STANLEY KALISEK (ECF NO.
TERRENCE G. BERG UNITED STATES DISTRICT
case, Defendants allegedly intercepted and exhibited for
public viewing at their bar the boxing event entitled
Manny Pacquiao v. Timothy Bradley, II WBO Welterweight
Championship Fight Program for private financial gain
without paying the requisite commercial licensing fee to
Plaintiff. See, e.g., ECF No. 1.
the Court is Plaintiff's “Renewed Motion for
Default Judgment Against Defendant Cruisin1 Inc., and to
Dismiss Defendants, Tiger White, and Stanley Kalisek.”
ECF No. 33. The record reflects Cruisin1 Inc. was properly
served with notice of this pending lawsuit through service on
its resident agent, Cheyenne Usewick, on July 3, 2017. ECF
No. 8; ECF No. 5-1, PageID.27 (corporate entity details).
Defendant Cruisin1 Inc. has failed to respond to the
complaint or otherwise plead. On July 26, 2017, Plaintiff
obtained a clerk's entry of default. ECF No. 12.
default is entered against a defendant, that party is deemed
to have admitted all the well-pleaded allegations in the
complaint pertaining to liability. See Ford Motor Co. v.
Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006) (citing
Matter of Visioneering Construction, 661 F.2d 119,
124 (6th Cir. 1981)).
January 22, 2018 the Court held a hearing on Plaintiff's
motion for default judgment; only counsel for Plaintiff
appeared. Although Plaintiff requested a judgment on both
liability and an award of damages, the Court concluded that
it would be appropriate to enter judgment in favor of
Plaintiff and against Defendant Cruisin1 Inc. on liability
only at that time. This is because Plaintiff sought and was
granted leave to amend its complaint, dismissing one
defendant and adding two new individual defendants who
Plaintiff believed may be liable. See Amended
Complaint, ECF No. 18; and Stipulation and Order,
ECF No. 19. Because the complaint sought joint and several
liability against all defendants, the Court thought it proper
to await the determination of any amount of damages until
after the litigation regarding the additional defendants is
was therefore entered in favor of Plaintiff and against
Defendant Cruisin1 on the issue of liability only.
now moves to enter default judgment against defendant
Cruisin1 on the issue of damages, claiming that
“[t]here is sufficient evidence to calculate and
liquidate damages with the need for an evidentiary hearing to
establish damages.” ECF No. 33, PageID.163. Plaintiff
alleges that the cost of the program-if defendants had
legally purchased the rights to display it-was $3200.00. ECF
No. 33-6 (rate card). Plaintiff claims as well to have
incurred fees and costs in relation to this action totaling
$7, 201.25 ($6, 198.50 in attorney's fees, and $1002.75
in costs). ECF No. 33-7 (Plaintiff's counsel's time
and expense tracking).
also seeks judgment against defendant Cruisin1 in the amount
of $110, 000.00, for “enhanced statutory damages,
” plus $7, 201.25 for “reasonable attorney fees
[and] costs, ” plus “statutory interest on the
judgment.” ECF No. 33, PageID.164. Plaintiff further
seeks to dismiss defendants Tiger White and Stanley Kalisek
from this case.
reasons explained below, the Court GRANTS
Plaintiff's Renewed Motion for Default Judgment Against
Defendant Cruisin1 Inc., and to Dismiss Defendants, Tiger
White, and Stanley Kalisek, awards damages of $10, 000, and
attorneys' fees and costs of $7, 201.25. ECF No. 33.
Communications Act of 1934 - 47 U.S.C. § 605
Communications Act of 1934, as amended, prohibits the
unauthorized interception of radio communications. 47 U.S.C.
§ 605(a). That section has been interpreted as outlawing
satellite signal piracy and applies in this case.
Cablevision of Michigan, Inc. v. Sports Palace,
Inc., 27 F.3d 566 (6th Cir. 1994). Plaintiff's
complaint establishes the elements of liability required to
state a claim under 47 U.S.C. § 605.
605 permits recovery of actual damages or statutory damages
of between $1, 000-$10, 000 for each non-willful
violation of this section. 47 U.S.C. §
605(e)(3)(C)(i)(I) & (II). Non-willful violation of this
section is a strict liability offense-it is unnecessary to
prove intent or knowledge to establish liability under the
Act. Joe Hand Promotions, Inc. v. Easterling, No.
4:08-cv-1259, 2009 WL 1767579 at *4 (N.D. Ohio June 22,
2009), citing Int'l Cablevision, Inc. v. Sykes,
997 F.2d 998, 1004 (2d Cir. 1993) and Kingvision Pay Per
View Ltd. v. Williams, 1 F.Supp.2d 1481, 1484 (S.D. Ga.
court also has discretion to increase the award by up to
$100, 000.00 for willful violations of the act. 47
U.S.C. § 605(e)(3)(C)(ii) (“In any case in which
the court finds that the violation was committed willfully
and for purposes of direct or indirect commercial advantage
or private financial gain, the court in its discretion may
increase the award of damages, whether actual or statutory,
by an amount of not more than $100, 000 for each violation of
subsection (a) of this section.”). The statute does not
define “willful, ” but in Joe Hand
Promotions, Inc. v. Easterling, the Northern District of
Ohio collected cases discussing the parameters of willfulness
under Section 605,
“The Supreme Court has defined “willful” in
the context of civil statutes as conduct showing
“disregard for the governing statute and an
indifference to its requirements.” Transworld
Airlines, Inc. v. Thurston, 469 U.S. 111, 127, 105 S.Ct.
613, 83 L.Ed.2d 523 (1985).
For purposes of § 605, courts have identified conduct as
“willful” where there were repeated violations
over time, or there was a sophisticated understanding of the
satellite programming industry and there was a violation of
the statutes that regulate the conduct. Cable/Home
Communication Corp. v. Network Prod., 902 F.2d 829, 851
(11th Cir. 1990); Home Box Office v. Champs of New Haven,
Inc., 837 F.Supp. 480, 484 (D. Conn. 1993).
Other district courts have ruled that a court may draw an
inference of willfulness from a defendant's failure to
appear and defend an action in which the plaintiff demands
increased statutory damages based on allegations of willful
conduct. Time Warner Cable of New York City, [a
Div. of Time Warner Entm't Co., L.P. v. Olmo, 977
F.Supp. 585, 589 (E.D.N.Y. 1997)]; Fallaci v. The New
Gazette Literary Corp., 568 F.Supp. 1172, 1173
One district court has interpreted 47 U.S.C. §
605(e)(3)(C) (ii) to include substantial unlawful monetary
gains by a defendant as an appropriate factor to consider
when exercising discretion in increasing the amount of
statutory damages. Home Box Office, 837 F.Supp. at
Another district court has required that there must be
egregious circumstances before awarding maximum statutory
damages. Joe Hand Promotions v. Burg's Lounge,955 ...