J&J Sports Productions, Inc. v. Rio Bravo, LLC, No. 8:2016cv03767 - Document 19 (D. Md. 2017)
Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/27/2017. (tds, Deputy Clerk)
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J&J Sports Productions, Inc. v. Rio Bravo, LLC Doc. 19 'I _.") ,. IN TIlE UNITED STATES [)JSTRICT COURT FOR TilE [)JSTRICT OF MARYLAND lOll DEC21 P 2: 22 SOllthem Oil'i .•ioll .I <'\: .1 SPORTS PRODUCTIONS • INC., Plaintiff, * v. * Civil Action No. G.III.I(' •.'7('7 RIO BRA YO, LLC, * Dcfcndant. * * * * * * * * * MEMORANDUM Rio Bravo. LLC.I allcging violations 1992. as amcndcd. 47 U.S.c. I. Aricr thc Dcfcndant ~ 553 rI self .. * * * * lilcd this action against Dclcndant of thc Communications ~ 605 el self.. and thc Cable and Telcvision * OPINION Inc. (".I & J" or "Plaintiff') .I &.1 Sports Productions. U.S.c. * Act of 1934. as amcndcd. Consumcr and a common-Ia\\' tlli1cd to ans\\'cr. PlaintilTmovcd Protcction 47 and Compctition Act of e1aim of col1\'crsion. See ECF No. Ie)\" entry of dcfilllit. ECF No. 12. and thc Clerk cntcrcd delilllit on March 6. 2017. ECF No. 13. On August II. 2017 . .I & .I filcd a i\lotion fell' Default Judgment $6.000.00 in enhanced secking $2.000.00 statutory damagcs costs in the amount of $3.563.00. Dcccmber infemnation Dcccmbcr in statutory damagcs pursuant to 47 lJ.S.c. ~ 60S. pursuant to 47 lJ.S.c. ~ 60S. and attorncys' Ie)\" total of $II.S63.S0. a ECF No. 14 at 2: ECF NO.1 X_I." On IS and 20. 2017. the Court issued I.ctter Ordcrs asking PlaintilTto rcgarding its attorney's Iccs and submit additional ICcs. ECF No. 15. ECF No. 17. \\'hich Plaintiffprovidcd on 19 and 22. 2017. ECF No. 16. ECF No. IX. For thc 1(,l!o\\'ing rcasons.Plaintilrs 1 Plaintiff originally Eel' No. II. Ili.llllCd Dong Ki Kim as a defendant. hut voluntary dismissed him 011 Fchnmry 6. 2017 .. \'ee ~ Pin cites to documents IiIcd on the Court's electronic filing system (Ct\,'1/ECF) refer to tilt: page numbers generated by that system. Dockets.Justia.com Motion. ECF No. 14. will he granted in part. I. BACKGROUND Plaintiff J & J contracted to hold ..the exclusive to the MallllY /'acljlliull l", "Program"). 'i 8. The ECF NO.1 Chris A/gieri. cncompasscd cntercd into suhliccnsc agreements fI 9. Maryland. pcrmitting Plaintiff employcd not hcing unlawfully Program. !d cstahlishmcnt Program. '1 in the tclcvision with various eommcrcial on Saturday. rights Fig/II /'rogram:' all under-card (the houts !d PlaintilTthen cntitics throughout North Amcrica. !d thcm to puhlicly cxhihit thc Program in thcir cstahlishments. Jonathan Martin. to ensurc that thc Program was by cntitics that did not purchase the rights to broadcast the Novembcr telcvised thc Program at its commcreial 22. 2014. without purchasing a liecnsc to hroadcast the ECF No. I ~~ 11-12. Ilyattsvi lie. Maryland via sworn aflidavit approximated that hc entcred the Rio Bran) Pastera Rcstaurant at 12: 12 AM on No\'cmher ECF No. 1-2 at 3. Martin obscrvcd thc Program hcing displaycd thc capacity of the cstahlishmcnt thc estahlishmcnt at different 12:25 AM. It!. at -I. Plaintilrs 100 pcople is $2.000.00. on a projcction scrccn. and to hc 100 people. ECF No. 1-2 at 3-4. Martin 65. 73. and 75 individuals prescnt in timcs. ECF No. 1-2 at -I. Marlin attcsts that hc leli at approximatcly Rate Card statcs that the Icc It)r an cstahlishment ranging !i'om 0- ECF No. 1-1-4 at I. Plaintiff tilcd the instant complaint on Deecmher in 23. 2014. thc night thc Program was broadcast. that hc took threc scparate head counts. counting Delendant distrihution cvcnt ..... hroadcast ofthc 12.. Plainti IThas allcgcd that Dcfendant Martin declarcd declarcd WIJO Well< .'nreiglll Champilll7Ship a privatc investigator. cxhihitcd tclevision telecast rights held hy Plaintiff"included and fight commentary including nationwide 14.2016. on Novcmhcr 21.2016. ECF NO.1. and servcd the ECF NO.5. which mcant that. by rulc. an ans\\"cr was due by 2 January 4.2017. ECF No. 12 at 1. Delcndant did not timely respond. and in response to a motion liled by Plaintill: on March 6. 2017. the Clerk of the Court entered defilliit against the Defendant. ECI' No. 12: ECF No. 13. Plaintiff Ii led its motion I()r delillilt judgment ECF No. 14. and supplemented it twice at the Court's in statutory damages. in enhanced $6.000.00 on August 11.2017. request. Plaintiff now requests $2.000.00 damages. and $3.563.00 in attorneys' fees and costs. ECF No. 14 at 2. II. STANDARD OF ImVIEW "When a party against whom a judgment plead or otherwise 1(11" aflirmative reliefis defcnd. and that failure is shown by aflidavit enter the party's delillllt:' red. R. Civ. 1'. 55(a). "A detCndant's entitle the plaintiff to entry of a delault judgment: or otherwise. DII/c. Credil MglIIl. Corp. ". Oplillll/III Although ..[tlhe Fourth Circuit has a 'strong policy' the e1erk must det(llIlt docs not automatically rather. that decision the court:' sought has lailed to is len to the discretion IVelding. 285 F.R.D. 371. 3n of (D. Md. 2(12). that 'cases he decided on their merits:" Choice /folcis III/erll.. Inc. ". Sal"llllllllh Shakli Carp .. No. DKC-I 1-0438. 20 I I WI, 51 18328 at *2 (D. Md. Oct. 25. 2011) (citing Unill'd Slall's ". Sha{Fer EIJI/ip. CII.. II F.3d 450. 453 (4(h Cir. 1993)). "defilllit judgment hecause of an essentially 418.421 may he appropriate when the adversary partyl. rid unresponsive process has heen halted (citing S EC. \'. LlIIrhl/l/gh. 359 F. Supp. 2d (D. ivld. 2(05)). "Upon delillilt. the well-pled although the allegations allegations as to damages pleadings:' muslnot dillcr;n as to liahility arc taken as true. are not:' 1.1IIrhal/gh. 359 F. Supp. 2d at 422. Fed. R. Civ. P. Rule 54(c) limits the type of judgment de lilll It judgment in a complaint that may he entered hased on a party's deiilll1t: "1\ kind trom. or exceed in amount. w.hat is demanded In entering default judgment. a court cannot. theref()re. award additional , .' in the damages "because the defendant could not reasonably amount Ipled in the complaint]:' 20(0). 10 rc GCOC,I)'SDil/a Tcchs" loc, 204 F.3d 124, 132 (4th Cir. al'lidavits or documentary it is not required to do so: it may evidence to determine the appropriate sum," 1801', Supp, 2d at 17 (citing Uoilcd Artists Corp, \" Frccllllll1, 605 F.2d 854, 857 (5th Cir. 1979)): scc also I.ahoras' only award damages clal. \', E,G,S, loc .. District COllocill'cosioll. I ('"I O]n del;llIlt judgment. 3174. 20 I0 WL 1568595. at *3 (D. Md, Apr. 16.2(10) III, that his damages would exceed thle] While the Court may hold a hearing to prove damages. rely instead on "detailed Adkios. have expected without a hearing irthe record supports the damages o. WDQ-09the Court may requested,"), ANALYSIS A. Liahility 47 lJ.S,c. communications. proscribes ~ 605 prohibits the "unauthorized ineluding "the unauthorized .Sj)()I'/SProds" at least 'digital satellite television interception manner in which Defendant loc, I', Md. Nov. 19.2(12). ,lid Food'" transmission:" while ~ 553 2016 WL I 75289.t 849 F. Supp. 2d at 588 n.3), Plaintilfdoes intercepted the precise method of interception. or receipt or certain 'radio' or receipt or certain cable communicationsl, loc \', 10tip1l1f1iCOO, e. No. DKC-15-1325. H May 3. 2(16) (citing Mayrca/ll.He. l'roll1otio/ls, interception the Program: however "Itlhe complaint as pleading in the alternative 1:11/1I1't. .e. U No. CCB-II-3272. In its Motionle)J' Det111dtJudgment. is permitted," at *2 (D, Md, not describe the need not speei fy .Ioc Ilallll 2012 WI. 5879127. Plaintiffaeknowledges I" .I '" .I at *4 (D. that it cannot recover under both ~~ 605 and 553 fe)r the same conduct. and seeks recovery under ~ 605. ECF No. 14-2 at 5-6. Plaintiff's alleging that Delendant well-pleaded "intercepted allegations and displayed 4 establish that Defendant violated ~ 605 by the Program at its establishment. without authorization Ii-om II'laintiffl. on a particular date and at a particular ProlllOtiOI7S.Ille .. 2012 WL 5879127. In analogous conversion:' at *4. cases. however. courts have "not allowed recovery because damages 20 II \\IL 5244440. lill' claims of would not exceed recovery "under ~~ 553 or 605 and IHllIid .I & .I .~j)()r{.I'Prods .. 111<'. ('astro ". result in double-recovery:' at *3 (D. Md. Nov. I. 20 II ) (eiting.l Neixh/)()rhood Sports Grille. IlIc .. No. 2:09-03141. Furthermore. time:- .Ioe 1101/(/ the claim of conversion ('(11/' .. No. II-CV -00 188-A \V. & .I Sj)()r{s I'rod, .. Illc. intangible rights:' has historically been an action "only Ii)]' tangible property:' Even though courts in Maryland these intangible tangible documents evidcnce have then been improperly taken:' WL 153037. at *2 "have expanded conversion rights only exist in speeilic circumstances. those intangible .I. R Z 20 I0 WI. 1838432. at *2 (D.S.C. 20 10)). .I &.1 Sports Prods.. Illc. \'. I'/a=a Del A/alllo. 11lc..No. TDC-15-0 173.2016 (D. Md. Jan. 12.2016). 1'. such as "whcn rights. and the tangible documcnts /d. PlaintilThas not alleged that Defendant taken any 01'.1 & J's tangible property or tangible documents rights." /d. Thereli)]'e. Plaintiff has not establishcd to include themsclves "has unlawlilily that evidencc .I & J's intangible a valid claim lilr conversion. B. I)ama~es PlaintilTrequests damages $2.000.00 in statutory damages under ~ 605. ECF No. 14 at 2. I'laintiffalso Court addresses Plaintiffis damages. requests attorney's in enhanced statutory Ices and eosts./d. The each in turn .. I. Statutory 605(e)(3)(B)(iii). and $6.000.00 to 47 U.S.c. ~ 605 Damages Pursuant seeking statutory damages in the amount of$2.000.00 ECF No. 14 a12. In order to determine thc appropriate courts in this District have looked at the amounts thc offending 5 pursuant to 47 U.S.c. amount of statutory establishment would ~ have been required to pay to exhibit the boxing matches legally. See.l & .I,\i)(}r{s I'u"l,' .. Illc. ,'. Greelle. No. 10.0 I 05. 20 I0 WL 269l'i672. at *12 (D. Md . .Iuly 6. 20 I0); see ill.\'().1 & .I Si)(}r{s Prods .. Illc. ". EI Rodeo Res{.. U.C. No. P.lM-15-172. 26. 2015) ("Consistent 2015 WL 3441995. at *2-3 (\J. Md. Nlay with prior case law in this District. the Court will accept thc cost to purchase thc Program as the direct loss to.l & .I ... "). Ilere. this amount is based on the Rate Card provided by Plaintirf. purchases the rights to broadcast establishment being exhibited. Plaintiffs the Program rrom .I & .I must pay $2.000.00 is between 0-100 individuals. Plaintilrs DeIendant's ECF No. 14-4. The Rate Card states that an establishment private investigator ECF No. 14.3 all. establishment was at Derendant's establishment The private investigator also states that he "counted establishment Card. ECF No. 14-4. Thereforc. while the Program lias states in his Aflidavit 100 individuals. that Id. at 2. the number or patrons thrce times [and] [tJhe head counts were 65. 73. [and] 75" individuals. patrons at Defcndant's iI' the sealing in the hI. had a seating capacity or approximately private investigator that !d The threc hcad counts orthe all fall within the 0-100 range provided the Court will award Plaintirrthe II separate in Plaintitrs amount of$2.000.00 Rate in statutory damages. 2. Enhanccd Plaintiff additionally Statuto~' Dama~cs seeks enhanced which permits the court to award damages each violation of subsection requesting J damages have looked to several fi,ctnrs: I) evidence * 61lS ~ 605(e)(3)(C)(ii). up to "an amount or not more than S 100.000.00 I(Jr enhanced whether enhanced to 47 U.S.c. pursuant to 47 U.S.c. (a) or this section" committed a reduced sum 01'$6.000.00 0 at 2. "In detennining Pursuant damages Here . .1&.1 is damages under 47 U.S.c. are warranted. orwillfulness; 6 by the Defendant. t(H' ~ 605. Eel' '0. other courts in this circuit 2) repeated violations over an cxtcnded pcriod 5) charging 2302353, 0f ti mc: 3) substantial an admission unlawful Icc or charging at *2 (citing.Jo~ monctary prcmiums gai n: 4) adyert isi ng the broadcast: and (jlll/Ilrocch~, 20 I0 WI, fil!' fi)(ld and drinks:' Ihllld Promo/ions. Inc ". lJollgi~. Inc.. No, 10<)-00590,2010 WI. 1790973, at *5 (E,D, Va, April 12,2010)), thc factors sct f(lrth in (jlll/Ilrocche, it is cyidcnt that Dcfendant Whcn applying "intcrcepted and cxhibitcd thc Program willtitlly and fi,r dircct or indircct commcrcial adyantagc:' ECF No, 14-2 at 7, because tclevision scts conncct thcmselycs 5244440, at *4 (quoting 490 (S,D.N,Y, Dcfendant broadcast unlawful systems:' ofthc Program, I violations Cl/S/ro COil'.. 20 II WI. and the ilwestigator or [had any] advcrtising associated did not pay a coYcr chargc:' with thc ECF No. 14-2 at 7. courts in this District haye f{1lInd that cycn when thcre is "no cyidcncc of rcpcat gains, adycrtising t{lr f{lOdand drinks. ofthc broadcast. ' , somc enhanced Saborl.a/ino uses of communications," or thc charging of an admission damagcs are proper to dcter potential or otherwisc cgrcgious Circuit havc varicd in awarding willfulncss cnhanccd times the statutory damagc amount:' (awarding cnhanced damages Icc or linurc R~s/.. Inc. 2014 WI. 2964477. at *3: s~e also.l Mar. 20. 20 I 7): (jlll/Ilrocc"e, 20 I 0 WI. 2302353. omittcd) nor do that ..[tJhcrc is no cvidcncc that thc &.J SpO!'lSProds. Inc \', KD Retail. Inc.. No, I'X-16-2380, bchavior spontancously, Tillie Wl/mer Cahie \', (/oogies Lllnch~on~II~. Inc.. 77 1', Supp, 2d 485, 1999», On thc othcr hand,l'laintifTconccdcs Yiolations, monctary prcmiums do not descramblc to cablc distribution in this mattcr has repeat[ Ncverthelcss, "I s lignals 2017 WI. 1450218, at *2 (D, Md, at *3. "Whcrc thcrc arc no allcgations warranting damages harsh punitivc damages, I,'om no cnhanccd damagcs of repcat courts in this to up to fiyc See e.g.. (jlll/Ilrocche. 20 I0 WI. 2302353. at *3 (citation at livc timcs thc amount of statutory damagcs): KIJ Re/l/il, /nc .. 2017 WL 1450218 (same): Cl/S/ro Corp., 20 II WI. 5244440 (awarding cnhanccd 7 Sahol" Lalillo Resl.. 1/1(' 2014 WL .. damages at three times the amount of statutory damages): 2964477 (same): .I & .I SPol"ISrrods .. Illc. 1'. Drakefiml. Sept. 21. 2(16) (same): rhea No. 0: 16-cv-0 1 I 17-MBS. 2016 WL Del Ahlll/(). 111<'.. 2016 WI. 153037 (awarding 5110170. (I).S.c. enhanced damages al two timcs the amount of statutory damagcs):.1 Shim Foods. IlIc.. o. PWG-14-2049. 2015 WI. 2452421. & .I.\iw/'ls I'rods .. Illc (D. Md. May 19.2(15) In .'101"'1" Lalillo Reslalira/1/. the court I(llllld that the defcndant (same). was liablc I()f' enhanced damages at three times thc amount of statutory damagcs awarded where the defendant and t(lr purposcs of commercial advantagc. rights to do so. the establishment present in a 200-pcrson defendant Resl.. IlIc .. 2014 WI. 2964477. commercial advantage. at *3. Similarly. broadcast Plaintiff: had its main television three-quarters capacity: however. cover fcc or premiums in Sahol" I.alillll. on six televisions: did not charge a cover ICe or premiums the Program or receive substantial monetary here. Defendant is allegedly for I(lod and gain. See Sahlll" I.atillo the rights to do so from the Program. and the establishment Defendant but the willfully. and f(lr purposes of the Program without purchasing exhibiting the capacity (154 individuals and the Program was exhibited was also a lirst time offender. willfully. 8:. J's Program \\'ithout purchasing was lilled to nearly three-quarters establishment). drinks. and did not advertise broadeast.l 1'. a lirst time offender. was at nearly did not charge a t(lr food and drink. and did not advertise the Program. Therefore. just as Defendant's paying the fee is sufficient intentional act of intercepting to warrant some enhanced three timcs the amount of statutory damages. and exhibiting damages. the Program \\'ithout and PlaintilTwill lor a total of $6.000.00 in enhanced be awarded damages. 3. Attorneys' Fees and Costs Under 47 U.s.c. reasonable attorneys' ~ 605(e)(3)(B)(iii) . .18:..1. as the prevailing fees and costs associated party. is entitled to with this action. "The party seeking l<:e5bears the 8 burdcn of proving thc rcasonablcncss of thc amount sought." .J & .J Sl'or's I'rot/s .. Illc. \'. MUII/fiml. No. DKC-I 0-2967. 2013 WL 210623. at *2 (citing RohillSOIl \'. 1:"llIili/x iI/liJ. S~I'\'S .. LLC. 560 F.3d 235. 243--44 (4th Cir. 2009)). J & J initially submittcd a documcnt dctailing thc attorncys' costs and fccs arising from this casc in thc amount of $3.657.50. its "Aflidavit and Ccrtilication Fecs," Plaintiffs of Attorncy's information regarding of each attorney. thatPlaintilrs action. ECF No. 18 at I. Plaintiffs and the billing rate per hour for which I'lainti 1'1' pro\'ided. counsel further attests that three attorneys attorncys of the time billed by each attorncy. ECF No. 16 at 1- ECF No. 18-1. For Richard M. Kind and Erica M. Cook. counsel billed at a rate of $350 per hour: lor Rvan C. Kind. counsel hillcd at a rate 01'$200 per hour. ECF No. . the range ofprcsumptively reasonable July I. 20 J 6) for attorneys with these respective shall be awardcd $2.26X in attorneys' rates identitied in Appendix lor costs arc governcd Bro/ill!l's of'I(mll.\'\'il/e. J X at I. Thcse rates 1[111 \\ithin , B of the Local Rules (D. Md. lengths of cxperienee.J Accordingly. Plainti 1'1' fees. At this point. the Court cannot eonelude that Plaintiffs Requests Erica M. Cook with and Ryan C. Kind. with two years of cxperienee. 2. Plaintiff also providcd a breakdown ECF counsel spent 6.75 hours working on thc worked on this matter: Richard M. Kind with forty years of experience. nineteen years of experience. of Costs and for. Se~ECF No. 14-7 at 2. The Court requcsted additional the years of experiencc No. 16; ECF No. IX. I'laintilTdeeiares above-captioned Fccs and Costs" and "Statcmcnt counsel had only providcd thc timc allotment each item they arc seeking recovery ECF No. 14-7 at I. In by Local Rule J request I()r costs is reasonable. 09. Se~.e.g . .J & .J Prot/lle/iolls. Ille. \'. Tilree LLC'. No. 15.1327. 2017 WL 3968477. *2 (I). Md. Sept. X. 2017). Where Appendix B of the Local Rules provides. in relevant part: "Lawyers admitted to the bar for lessthan live (5) years: 5150-225 .... Lawyers admitted to the bar for nine (9) to fourteen (14) years: 5225-350. Lawyers admitted to the .1 bar lor fifteen (15) to nineteen (19) years: 5275-425. S300-~75:' Lawyers admittL'd to the bar for twenly (10) years or more: Loc. R. app. B (D. Md . .Iuly J. 2016). 9 "any costs other than the fce for tiling the action are being requested supporting I. 2(16). the cost being requested laJny \"{luchers or bills Loc. R. 109(1 )(b) (D. Md. July Here. Plaintiff provides only a list of the various costs incurred. See lOCI' No. 14-7 at I. These include: Investigator Attempted shall be attached as exhibits:' ... Fee ($650). Complaint Service of Complaint Filing Fee ($400). Courier Service ($40). ($65). Service of Process on Rio Bravo ($70). and Service of Process on Dong Ki Kim ($70).!d Although not attached to its request lor costs. Plaintiff has provided the Court with a bill for the service of Rio Bravo and the service of Dong Ki Kim. See lOCI' NO.5. ECF NO.6. As such. the Court will grant Plaintiffs request lor costs Il)J"the service of proeess and the tiling fee. in the total amount of $540. PlaintilT may submit a supplemental request lor eosts to the Clerk of the Court. with the appropriate IV. attachments. CONCLUSION For the foregoing Judgment reasons. Plaintilrs will be entered Illr Plaintiffin Motion Illr Def~lUlt Judgment the amount of$10.R08. {7-(t7/2017 will be granted. A separate Order willlllllow. ~-~~- Date GEORGE.I. HAZEL United States District .ludge 10
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