J&J Sports Productions, Inc. v. Bromart, LLC

Filing 16

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/27/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
J & J SPORTS PRODUCTIONS, INC.
:
v.

:

Civil Action No. DKC 15-0175

:
BROMART, LLC
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case
involving alleged violations of the Communications Act of 1934
is a motion for monetary judgment filed by Plaintiff J & J
Sports Productions, Inc. (“Plaintiff” or “J & J”).
15).

(ECF No.

The court now rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, Plaintiff’s motion

will be granted in part and denied in part.
I.

Background
On

January

21,

2015,

Plaintiff

commenced

this

action

against Defendant Bromart, LLC t/a Sahara Oasis t/a Sahara Oasis
Restaurant

and

Plaintiff,

an

entertainment
distribution

Lounge

(“Defendant”

international
programming,

rights

to

the

the

distributor

alleged
May

or

5,

“establishment”).
of

sports

that

it

held

2012

broadcast

and

exclusive
of

Floyd

Mayweather, Jr. v. Miguel Cotto, WBA World Light Middleweight
Championship Fight Program

(the “Broadcast”), which Defendant

unlawfully

intercepted

and

exhibited

for

its

patrons.

On

December 8, 2015, the court granted partial summary judgment in
favor of Plaintiff on the issue of liability (ECF Nos. 12; 13),
and

Plaintiff

now

seeks

monetary

judgment

in

the

amount

of

$150,000.00.
The facts of the case are uncontested.

Plaintiff “paid for

and was thereafter granted the exclusive nationwide television
distribution
nationwide

rights

on

to

the

Saturday,

[Broadcast,]

May

5,

which

2012.”

[was]

(ECF

No.

telecast
1

¶

8).

Plaintiff entered into sublicensing agreements with commercial
establishments, such as bars and restaurants, which purchased
the

rights

to

exhibit

the

Broadcast

for

their

patrons.

Defendant did not obtain a sublicense from Plaintiff.
Robert
visited

Modzelewski,

the

an

establishment

approximately 11:45 p.m.

on

investigator
the

night

hired
of

by

the

(ECF No. 15-3, at 1).

Plaintiff,

Broadcast

at

Mr. Modzelewski

witnessed Defendant charging patrons a fee of $20.00 to enter
the establishment.
the Broadcast.
had

capacity

Inside, he observed two televisions showing

Mr. Modzelewski estimated that the establishment
for

approximately

80

people,

and

he

observed

between 15-20 people inside at various times.
Plaintiff’s complaint alleges three counts: violations of
47

U.S.C.

§§

605

communications)

and

(unauthorized
553

publication

(unauthorized
2

or

reception

use
of

of

cable

services) (Counts I and II); and the Maryland common law tort of
conversion

(Count

III).

(ECF

No.

1

¶¶

7-26).

Defendant

answered the complaint, stating that it “has been liquidated”
and “ceased operations effective June 30, 2014.”
1).

(ECF No. 6, at

According to Defendant, “[t]here are no known assets.”

(Id.).
which

Plaintiff moved for summary judgment on Counts I and II,
Defendant

did

not

oppose.

(ECF

No.

11).

The

court

granted Plaintiff’s motion and entered partial summary judgment
as to liability in favor of Plaintiff on Counts I and II.
Nos. 12; 13).1

(ECF

Plaintiff filed the pending motion on February 9,

2016, requesting monetary judgment against Defendant on Counts I
and

II

for

$150,000.00.

(ECF

No.

15).

Defendant

has

not

responded in opposition, and the time in which to do so has
passed.
II.

Standard of Review
Upon establishing a violation of § 605(a):
Damages . . . shall be computed, at the
election
of
the
aggrieved
party,
in
accordance with either of the following
subclauses;
(I) the party aggrieved may recover the
actual damages suffered by him as a
result of the violation and any profits
of the violator that are attributable
1

Plaintiff also asked for damages and attorney’s fees in
its motion, but provided no basis for its request in the
attached memorandum of law.
(See ECF No. 11-1).
Accordingly,
the court treated Plaintiff’s motion as one for summary judgment
as to liability only. (ECF No. 12, at 3 n.1).
3

to the violation which are not taken
into account in computing the actual
damages; in determining the violator's
profits, the party aggrieved shall be
required to prove only the violator's
gross revenue, and the violator shall
be required to prove his deductible
expenses and the elements of the profit
attributable to factors other than the
violation; or
(II) the party aggrieved may recover an
award of statutory damages for each
violation . . . in a sum of not less
than $1,000 or more than $10,000, as
the court considers just[.]
47

U.S.C.

§

explained,
considers

605(e)(3)(C)(i).

“the

statutory

just,’

approximation

47

of

As

damages

U.S.C.

the

this

§

damages

court

award

has

that

v.

Mumford,

No.

‘the

605(e)(3)(C)(i)(II),
actually

incurred

plaintiff] due to [the defendant’s] violation.”
Prods.

previously

DKC-10-2967,

2012

WL

court
is

by

an
[the

J & J Sports
6093897,

at

*3

(D.Md. Dec. 6, 2012).
Furthermore,

§

605(e)(3)(C)(ii)

provides

that

“[i]n

any

case in which the court finds that the violation was committed
willfully

and

advantage

or

for

purposes

private

of

direct

financial

or

indirect

gain,

the

court

commercial
.

.

.

may

increase the award of damages, whether actual or statutory, by
an amount of not more than $100,000 for each violation[.]”
In determining whether enhanced damages are
warranted, other courts in [the United
States Court of Appeals for the Fourth
Circuit] have looked to several factors: 1)
4

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.
J & J Sports Prods., Inc. v. Quattrocche, No. WMN-09-CV-3420,
2010 WL 2302353, at *2 (D.Md. June 7, 2010) (citations omitted).
III. Analysis
Plaintiff seeks statutory damages of $100,000.00 for the
violation of § 605 and $50,000.00 for the violation of § 553.
(ECF No. 15-2, at 2).

Plaintiff cites to an unpublished opinion

from the United States District Court for the Northern District
of California in an attempt to show that “it is not unheard of
for courts [] to award damages pursuant to both statutes.”
No. 15-2, at 5).
judges

in

this

(ECF

As explained in numerous prior opinions from
district,

however,

“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.”

See,

e.g.,

Quattrocche,

2010

WL

2302353,

at

*1

(citing J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648
F.Supp.2d
recover,
statutory

469
at

(E.D.N.Y.
most,

damages,

2009)).

$110,000.00,
the

Accordingly,
consisting

maximum

of

Plaintiff
$10,000.00

allowable

under

may
in
§

605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages, the
maximum amount under § 605(e)(3)(C)(ii).

5

A.

Statutory Damages

In support of its request for statutory damages in this
case, Plaintiff attaches the affidavit of Mr. Modzelewski, the
private investigator, who paid a $20.00 entry fee and

observed

the Broadcast being played on two television sets inside the
establishment on May 5, 2012.

(ECF No. 15-3).

The investigator

estimated the establishment’s capacity to be approximately 80
people.

While inside, he counted the number of patrons three

times and reported turnout to be 15, 18, and 20.

The rate chart

indicates that if Defendant had purchased a license, it would
have paid $2,200.00 to exhibit the match in an establishment
with capacity for 80 patrons.
Plaintiff

will

be

(See ECF No. 15-4).

awarded

statutory

Accordingly,

damages

under

§

605(e)(3)(C)(i) in the amount of $2,200.2
B.

Enhanced Damages

Plaintiff seeks enhanced damages under § 605(e)(3)(C)(ii),
which

authorizes

“the

court

in

its

discretion

.

.

.

[to]

increase the award of damages . . . by an amount of not more
than $100,000 for each violation” of the provision.

2

Here, the

In its motion, Plaintiff conflates the analysis for
calculating statutory damages with the enhanced damages award.
In particular, Plaintiff argues for the maximum statutory
damages because “the most important factor in assessing damages
is the deterrent effect of that award.” (ECF No. 12-2, at 6).
Deterrence of future violations, however, “is properly addressed
by an enhanced damages award.” Mumford, 2012 WL 6093897, at *3
(citing 47 U.S.C. § 605(e)(3)(C)(ii)).
6

fact

that

Defendant

intercepted

and

exhibited

the

Broadcast

willfully and for direct or indirect commercial advantage cannot
be

doubted.

“After

spontaneously,
cable

nor

do

distribution

Bougie,

Inc.,

all,

‘[s]ignals

television

systems.’”

No.

sets

Joe

not

connect

Hand

109CV00590TSEIDD,

do

descramble

themselves

Promotions,

2010

WL

to

Inc.

1790973,

v.

at

*6

(E.D.Va. Apr. 12, 2010) (quoting Time Warner Cable v. Googuies
Luncheonette,

Inc.,

77

F.Supp.2d

485,

490

(S.D.N.Y.

1999)).

Defendant also charged an entry fee, although Plaintiff makes no
allegation that Defendant’s entry fee was exclusive to the night
of the Broadcast.
even

imply

that

The record does not, however, indicate or
Defendant

actively

promoted

the

Broadcast,

charged any premiums for food or drinks, or repeatedly violated
§ 605 for commercial gain.

Furthermore, it is undisputed that

only 15-20 people patronized the establishment on the night of
the

Broadcast,

barely

a

quarter

of

the

establishment’s

full

capacity.
“Where
otherwise

there

are

egregious

no

allegations

willfulness

of

repeat

warranting

behavior

harsh

or

punitive

damages, courts in this Circuit have varied in awarding enhanced
damages

from

no

enhanced

statutory damage amount.”
(emphasis added).

damages

to

up

to

five

times

the

Quattrocche, 2010 WL 2302353, at *3

Although judges in this district sometimes

7

award enhanced damages in factual and procedural circumstances
similar to here, Judge Blake’s recent analysis is persuasive:
J & J has been on notice, at least since
Quattrocche – which merely codified past
judicial practice – that in a case of nonegregious willfulness it was not eligible to
recover the maximum damages authorized by
statute and that it could not recover
damages under section 553, section 605, and
conversion for the same conduct. Undaunted,
J & J “has repeatedly filed motions seeking
excessive damages in nearly identical cases,
and the court has consistently addressed the
limitations on damages for the same causes
of action brought here.”
J & J Sports
Prods., Inc. v. Sabor Latino Rest., Inc.,
No. PJM-13-3515, 2014 WL 2964477, at *2
(D.Md. June 27, 2014).
In light of this
recalcitrance, the court declines to award
any enhanced damages.
J & J Sports Prods., Inc. v. Rumors, Inc., No. CCB-14-2046, 2014
WL

6675646,

Moreover,

at

since

*4

(D.Md.

Rumors,

J

Nov.
&

J

21,
has

2014)
made

(emphasis

several

added).

unsupported

requests for the maximum amount of enhanced damages in other
cases in this district.

See, e.g., J & J Sports Prods., Inc. v.

Mi Patio Rest., LLC, No. DKC-15-1360, 2016 WL 1696554 (D.Md.
Apr. 28, 2016); J & J Sports Prods., Inc. v. El Rodeo Rest.,
LLC, No. PJM-15-172, 2015 WL 3441995 (D.Md. May 26, 2015).

“It

is troubling that [J & J] continues to proceed without regard to
the many opinions written on this issue.”
2014 WL 2964477, at *2.

Sabor Latino Rest.,

The cases that Plaintiff cites from

other districts granting enhanced damages do not outweigh the

8

repeated, clear direction that multiple judges in this district
have

given

Plaintiff

regarding

damages.

Accordingly,

no

enhanced damages will be awarded.
IV.

Conclusion
For the foregoing reasons, the motion for monetary judgment

filed by Plaintiff will be granted in part and denied in part.
Judgment
$2,200.00.

will

be

entered

for

Plaintiff

in

the

amount

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9

of