J&J Sports Productions, Inc. v. RBP, Inc. et al

Filing 13

MEMORANDUM OPINION (c/m to Defendants 11/27/12 sat). Signed by Chief Judge Deborah K. Chasanow on 11/27/12. (sat, Chambers)

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