J&J Sports Productions, Inc. v. RBP, Inc. et al, No. 8:2011cv03336 - Document 13 (D. Md. 2012)
Court Description: MEMORANDUM OPINION (c/m to Defendants 11/27/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/27/12. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : J & J SPORTS PRODUCTIONS, INC. : v. : Civil Action No. DKC 11-3336 : RBP, INC., et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this case involving alleged violations of the Communications Act of 1934 is a motion filed by Plaintiff J & J Sports Productions, Inc., for entry of default judgment. (ECF No. 11). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted in part and denied in part. I. Background On November 18, 2011, Plaintiff J & J Sports Productions, Inc., commenced this action against Defendants RBP, Inc., t/a Mexican Garcia Restaurant, and and Patricia Communications Act two of E. of Garcia, 1934, as its principals, Raul Murillo alleging violations of the amended, 47 §§ 553 U.S.C. (unauthorized reception of cable services) and 605 (unauthorized publication or use of communications), and the common law tort of conversion. The complaint recites that Plaintiff paid for and was thereafter granted the exclusive nationwide television distribution rights to the Firepower: Manny Pacquiao v. Miguel Cotto WBO telecast Welterweight nationwide Broadcast ). then Championship on Saturday, Fight Program[,] 14, November which ( the 2009 (ECF No. 1 ¶ 9 (emphasis in original)). entered into sublicensing agreements with Plaintiff commercial establishments, such as bars and restaurants, which purchased the rights Plaintiff to exhibit alleges that, the Broadcast [w]ith full for their knowledge patrons. that [the Broadcast] was not to be intercepted, received and exhibited by entities unauthorized to do so, . . . [Defendants] did unlawfully publish, divulge and exhibit [the Broadcast] . . . willfully and for the purposes of direct or indirect commercial advantage or private financial gain. (Id. at ¶ 12). Service of process was effected upon Defendant Patricia E. Garcia on December 22, 2011, upon Defendant Raul Murillo Garcia on January 23, 2012, and upon Defendant RBP, Inc., through the Maryland State Department January 31, 2012. of Assessments (ECF Nos. 5-7). and Taxation, on When Defendants failed to respond within the requisite time period, Plaintiff moved for entry of default. The clerk entered default on April 11, 2012, and Plaintiff filed the pending motion for default judgment on May 11. To date, Defendants have taken no action in the case. 2 II. Standard of Review Under Federal Rule of Civil Procedure 55(a), [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit party s default. or otherwise, the clerk must enter the Where a default has been previously entered by the clerk and the complaint does not specify a certain amount of damages, the court may enter a default judgment upon the plaintiff s application and notice to pursuant to Fed. R.Civ.P. 55(b)(2). the defaulting party, A defendant s default does not automatically entitle the plaintiff to entry of a default judgment; rather, that decision is left to the discretion of the See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). court. The Fourth Circuit has a strong policy that cases be decided on their merits, Dow v. Jones, 232 F.Supp.2d 491, 494 (D.Md. 2002) (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993)), but default judgment may be appropriate where a party is unresponsive, see S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D.Md. 2005) (citing Jackson v. Beech, 636 F.2d 831, 836 (D.C.Cir. 1980)). Upon [entry of] default, the well-pled allegations in a complaint as to liability are taken as true, but the allegations as to Federal damages Rule are of not. Civil Lawbaugh, Procedure 3 359 54(c) F.Supp.2d limits the at type 422. of judgment that may be entered based on a party s default: A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Thus, where a complaint specifies the amount of damages sought, the plaintiff is limited to entry of a default judgment in that amount. [C]ourts have generally held that a default judgment cannot award additional damages . . . because the defendant could not reasonably amount. have expected his damages the exceed that court Where a complaint does not specify an is required to make determination of the sum to be awarded. F.Supp.2d would In re Genesys Data Technologies, Inc., 204 F.3d 124, 132 (4th Cir. 2000). amount, that 15, 17 (D.D.C. 2001) (citing an independent Adkins v. Teseo, 180 S.E.C. v. Management Dynamics, Inc., 515 F.2d 801, 814 (2nd Cir. 1975); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2nd Cir. 1981)). While the court may hold a hearing to consider evidence as to damages, it is not required to do so; it may rely instead on detailed affidavits or documentary evidence to determine the appropriate sum. v. Adkins, 180 F.Supp.2d at 17 (citing United Artists Corp. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)); see also Laborers District Council Pension, et al. v. E.G.S., Inc., Civ. No. WDQ 09 3174, 2010 WL 1568595, at *3 (D.Md. Apr. 16, 2010) ( [O]n default judgment, the Court 4 may only award damages without a hearing if the record supports the damages requested. ). III. Analysis In the complaint, Plaintiff seeks statutory damages of $100,000 related to the violation of § 605, $50,000 for the violation of § 553, and unspecified compensatory damages for the alleged conversion. In the motion for default judgment, Plaintiff seeks the same amount of damages under §§ 605 and 553, plus $1,500.00 in compensatory damages on the conversion count. Generally . . . plaintiffs cannot recover under both [§§ 605 and 553] for the same conduct and courts allow for recovery under § 605 as it provides for the greater recovery. Sports Productions, Inc. v. Quattrocche, No. J & J WMN 09 CV 3420, 2010 WL 2302353, at *1 (D.Md. June 7, 2010) (citing J & J Sports Productions, Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469 (E.D.N.Y. 2009); Kingvision Pay Per View, Ltd. v. Las Reynas Restaurant, Inc., No. 4:07 67, 2007 WL 2700008, at *1 (E.D.N.C. Sept. 11, 2007); Kingvision Pay Per View, Ltd. v. Backman, 102 F.Supp.2d 1196, 1197 (N.D.Cal. 2000)). Courts have similarly not conversion, allowed recovery for claims of as [such recovery] would not exceed [that] under §§ 553 or 605 and would result in double-recovery. J & J Sports Productions, Inc. v. Castro Corp., No. 11 cv 00188 AW, 2011 WL 5244440, at *3 (D.Md. Nov. 1, 2011) (citing J & J Sports Productions, Inc. v. J.R. Z 5 Neighborhood Sports Grille, Inc., 1838432, at *2 (D.S.C. 2010)). No. 2:09 03141, 2010 WL Thus, Plaintiff may recover, at most, $110,000, consisting of $10,000 in statutory damages, the maximum allowable under § 605(e)(3)(C)(i)(II), and $100,000 in enhanced damages, the maximum amount under § 605(e)(3)(C)(ii).1 A. Statutory Damages In Quattrocche, 2010 WL 2302353, at *2, Judge Nickerson set forth the relevant considerations in the damages analysis under § 605(e)(3)(C)(i)(II): Here, Plaintiff has elected an award of statutory damages, which under 47 U.S.C. § 605(e)(3)(C)(i)(II) entitles Plaintiff to an award as the court considers just, between a range of $1000 to $10,000 for each unauthorized reception and publication of a radio communication by the defendants in violation of section 605(a). Courts in this Circuit have used two different approaches to exercising [] discretion in awarding damages under § 605(e)(3)(C) (i)(II). The first approach has two variations. This approach involves multiplying a certain amount by either the number of patrons observed in the defendant s establishment at the time the program was shown or by the maximum occupancy of the establishment. Joe Hand Promotions, Inc. v. Bougie, Inc., Civ. No. 109 00590, 2010 WL 1790973, at *5 (E.D.Va. April 12, 2010) (patrons present); [Kingvision Pay Per View, Ltd. v.] Admiral s Anchor, 172 F.Supp.2d [810,] 812 [S.D.W.Va. 2001] (maximum occupancy); Entertainment by 1 While both provisions under § 605(e)(3)(C) are prescribed by statute, for ease of exposition the court refers to the damages amount under § 605(e)(3)(C)(i)(II) as statutory damages and those under § 605(e)(3)(C)(ii) as enhanced damages. 6 J & J, Inc. v. Gridiron, Inc., 232 F.Supp.2d 679, 681 (S.D.W.Va. 2001) (maximum occupancy). The first variation seeks to approximate the defendant s profits or the plaintiff s lost earnings assuming each patron would have ordered the event for residential viewing. [J & J Sports Prods., Inc. v.] 291 Bar & Lounge, 648 F.Supp.2d [469,] 474 [E.D.N.Y. 2009]. The second variation seeks to award the license fee the defendant would have paid if it had legally purchased the event for exhibition. Id. The other approach to calculating damages is to award a flat sum per violation. [J & J Sports Prods., Inc. v.] J.R. Z Neighborhood Sports Grille, 2010 WL 1838432, at *1 [D.S.C. Apr. 5, 2010] ($5000); [Joe Hand Promotions, Inc. v.] Angry Ales, 2007 WL 3226451, at *5 [W.D.N.C. Oct. 29, 2007] ($1000); Kingvision Pay Per View Ltd. v. Gadson, Civ. No. 1:04 678, 2007 WL 2746780, at * 2 (M.D.N.C. Sept. 18, 2007) ($10,000); Las Reynas Restaurant, 2007 WL 2700008, at *3 ($2000). In support of its claim for statutory damages in this case, Plaintiff attaches the affidavit of Jauquine Tantillo, a private investigator who observed the Broadcast on two televisions in the bar area of the Festival Way, Mexican Waldorf, Restaurant, Maryland, approximately 11:40 p.m. on located November (ECF No. 11-2). 14, at 2936 2009, at The investigator was not charged an entrance fee, remained in the restaurant for approximately thirty minutes, and counted ten to twelve other patrons at various times. In its memorandum, Plaintiff cites a number have of appropriate factors award courts of considered statutory 7 damages, in determining but offers an no explanation as to how those factors should be applied in this case, nor has it provided associated with Defendants any evidence violations. of Cf. lost J & profits J Sports Productions, Inc. v. Greene, No. DKC 10-0105, 2010 WL 2696672, at *5 (D.Md. July 6, 2010) (where the same plaintiff attached to its motion a rate card, demonstrating that [t]he costs for Defendant to legally purchase the December 6, 2008 [Broadcast] was $2,200.00 based on an occupancy of 0-100 patrons ). faced with a similar dearth statutory minimum of $1,000. of evidence have Courts awarded the See Quattrocche, 2010 WL 2302353, at *3 (citing 291 Bar & Lounge, 648 F.Supp.2d at 474; Angry Ales, 2007 WL 3226451, at *5). This court will do the same. Accordingly, Plaintiff will be awarded statutory damages under § 605(e)(3)(C)(i)(II) in the amount of $1,000. B. Enhanced Damages Pursuant to § 605(e)(3)(C)(ii), where the court finds that a 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 . . . by an amount of not more than $100,000. Plaintiff appears enhanced damages. to conflate the concepts In its memorandum, of statutory and (See ECF No. 11 1, at 7 ( an award of the enhanced statutory damage minimum ($10,000.00) is a necessary baseline amount this Court should consider adopting (emphasis 8 in original)). Nevertheless, it clearly seeks the maximum amount of enhanced damages ($100,000), in addition to statutory damages, without presenting specific argument in support. In Quattrocche, 2010 WL 2302353, at *2, the court explained: In determining whether enhanced damages are warranted, other courts in this Circuit have looked to several factors: 1) evidence of willfulness; 2) repeated violations over an extended period of time; 3) substantial unlawful monetary gains; 4) advertising the broadcast; and 5) charging an admission fee or charging premiums for food and drinks. Bougie, 2010 WL 1790973, at *6; J.R. Z Neighborhood Sports Grille, Inc., 2010 WL 1838432, at *2; Las Reynas Restaurant, 2007 WL 2700008, at *3; Gadson, 2007 WL 2746780, at *3. The fact Broadcast that Defendants willfully and intercepted for direct advantage cannot be doubted. descramble spontaneously, or and indirect at *6 (quoting commercial nor do television Time Warner sets connect Bougie, 2010 WL Cable v. Googies Luncheonette, Inc., 77 F.Supp.2d 485, 490 (S.D.N.Y. 1999)). the other hand, Plaintiff the After all, [s]ignals do not themselves to cable distribution systems. 1790973, exhibited has presented no evidence of On any advertising associated with the restaurant s broadcast of the event, and the record reflects charged. 9 that no admission fee was If little only to businesses statutory deter from damages Defendants risking were or future awarded, other similarly violations. damages will be awarded in this case. there Thus, would be situated enhanced Courts have generally awarded anywhere from three to six times the statutory damages award for enhanced damages[.] J.R. Z Neighborhood Sports Grille, Inc., 2010 WL 1838432, at *2 (quoting J & J Sports Productions, Inc. v. Ribiero, 562 F.Supp.2d 498, 502 (S.D.N.Y. 2008)). In Quattrocche, 2010 WL 2302353, at *3, where the defendant charged an admission fee for its unlawful exhibition of a boxing match, Judge Nickerson calculated enhanced damages by multiplying the [minimum] statutory damages by a factor of 5. Where, as here, the evidence suggests that no admission fee was charged, courts in this district have typically multiplied the statutory damages amount by a factor of three to calculate enhanced damages. Greene, 2010 suggesting WL that See Castro Corp., 2011 WL 5244440, at *5; 2696672, a higher at *5. multiplier As is there is warranted no evidence here, this court will also multiply the statutory damages by a factor of three. Accordingly, Plaintiff will be awarded enhanced damages under § 605(e)(3)(C)(ii) in an amount of $3,000 and a total damages award of $4,000. 10 IV. Conclusion For the foregoing reasons, Plaintiff s motion for default judgment will be granted in part and denied in part. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 11
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