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

Filing 10

MEMORANDUM OPINION (c/m to Defendant 5/3/16 sat). Signed by Judge Deborah K. Chasanow on 5/3/2016. (sat, Chambers)

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

:

Civil Action No. DKC 15-1325

:
INTIPUQUENO, 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 default judgment filed by Plaintiff J & J Sports
Productions, Inc. (“Plaintiff”).

(ECF No. 9).

rules, no hearing being deemed necessary.

The court now

Local Rule 105.6.

For the following reasons, Plaintiff’s motion will be granted in
part and denied in part.
I.

Background
On May 12, 2015, Plaintiff commenced this action against

Defendant

Intipuqueno,

LLC

t/a

Intipuqueno

Restaurant

(“Defendant” or the “establishment”) alleging violations of the
Communications

Act

of

1934,

as

amended,

47

U.S.C.

§§

553

(unauthorized reception of cable services) and 605 (unauthorized
publication or use of communications), and the common law tort
of

conversion.

(ECF

No.

1).

The

complaint

recites

that

Plaintiff “paid for and was thereafter granted the exclusive

nationwide

television

Mayweather,

Jr.

v.

Championship

Fight

distribution
Robert

rights

Guerrero,

Program[,]

which

to
WBC

telecast

the

Floyd

Welterweight
nationwide

on

Saturday May 4, 2013, [(the “Broadcast”)] (this included all
under-card

bouts

and

fight

commentary

television broadcast of the event).”
entered

into

sublicensing

encompassed

(Id. ¶ 8).

agreements

in

the

Plaintiff then

with

commercial

establishments, such as bars and restaurants, which purchased
the rights to exhibit the Program for their patrons.

(Id. ¶ 9).

Plaintiff alleges that, “[w]ith full knowledge that the Program
was not to be intercepted, received and exhibited by entities
unauthorized to do so, . . . [Defendant] did unlawfully publish,
divulge and exhibit the Program . . . willfully and for the
purposes of direct or indirect commercial advantage or private
financial gain.”

(Id. ¶ 11).

Service of process was effected on Defendant on May 27,
2015.

(ECF No. 5).

When Defendant failed to respond within the

requisite time period, Plaintiff moved for entry of default.
(ECF No. 7).
8).

The clerk entered default on August 25.

(ECF No.

Plaintiff filed the pending motion for default judgment on

September 29.

(ECF No. 9).

To date, Defendant has taken no

action in the case.

2

II.

Standard of Review
Under Fed.R.Civ.P. 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 or
otherwise,

the

clerk

must

enter

the

party’s

default.”

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 court.
767 (5th Cir. 2001).

See Lewis v. Lynn, 236 F.3d 766,

The United States Court of Appeals for 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

damages

Fed.R.Civ.P.

are

54(c)

not.”
limits

Lawbaugh,
the

type

of

359

F.Supp.2d

judgment

that

at

422.

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
3

judgment in that amount. “[C]ourts have generally held that a
default judgment cannot award additional damages . . . because
the

defendant

damages

could

would

not

exceed

reasonably

that

have

amount.”

expected

In

re

that

his

Genesys

Technologies, Inc., 204 F.3d 124, 132 (4th Cir. 2000).

Data

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.”

Adkins

v.

Teseo,

180

F.Supp.2d

15,

17

(D.D.C.

2001)

(citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th
Cir. 1979)).
III. Analysis
Plaintiff seeks to enforce both “[§§] 605 and 553 of 47
U.S.C.,

which

are

provisions

of

the

Federal

Cable

Act

address different modalities of so-called ‘cable theft.’”

that
J & J

Sports Prods., Inc. v. Mayreal II, LLC, 849 F.Supp.2d 586, 588
(D.Md.

2012).

Section

553

prohibits

the

unauthorized

interception or receipt of certain cable communications, while §
605

proscribes

certain

“radio”

the

unauthorized

communications,

interception
including

satellite television transmission.”

at

or

receipt

least

Id. at 588 n.3.

of

“digital
In its

complaint, Plaintiff does not specify how Defendant intercepted
the program, but that omission is not fatal.

“The complaint

need not specify the precise method of interception, as pleading
4

in the alternative is permitted.”

Joe Hand Promotions, Inc. v.

Md. Food & Entm’t, LLC, No. CCB-11-3272, 2012 WL 5879127, at *4
(D.Md. Nov. 19, 2012).

Instead, Plaintiff need only allege, as

it does here, that a business entity “intercepted and displayed
the

Program

at

its

establishment,

without

authorization

from

[Plaintiff], on a particular date and at a particular time.”
Id.

Taking those factual allegations as true, Plaintiff has

established a violation of either §§ 553 or 605.
In

the

complaint,

Plaintiff

seeks

statutory

damages

of

$100,000.00 related to the violation of § 605, $50,000.00 for
the violation of § 553, and unspecified compensatory damages for
the alleged conversion.

(ECF No. 1).

In the motion for default

judgment, Plaintiff seeks the same amount of damages under §§
605

and

553,

plus

conversion count.

$1,500.00

in

compensatory

(ECF No. 9, at 2).

damages

on

the

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.”
prior

opinions

(ECF No. 9-2, at 5).
from

judges

in

As explained in numerous
this

district,

however,

“[g]enerally [] 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., J & J

Sports Prods., Inc. v. Quattrocche, Civ. Action No. WMN–09–CV–
5

3420, 2010 WL 2302353, at *1 (D.Md. June 7, 2010) (citing J & J
Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469
(E.D.N.Y. 2009)).

“Courts have similarly not allowed recovery

for claims of conversion, as [such recovery] would not exceed
[that] under §§ 553 or 605 and would result in double-recovery.”
J & J Sports Prods., Inc. v. Castro Corp., No. 11–cv–00188–AW,
2011 WL 5244440, at *3 (D.Md. Nov. 1, 2011) (citing J & J Sports
Prods., Inc. v. J.R.’Z Neighborhood Sports Grille, Inc., No.
2:09–03141, 2010 WL 1838432, at *2 (D.S.C. 2010)).
Plaintiff

may

recover,

at

most,

$110,000.00,

Accordingly,
consisting

of

$10,000.00 in statutory damages, the maximum allowable under §
605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages, the
maximum amount under § 605(e)(3)(C)(ii).
A.

Statutory Damages

As this court has previously explained, “statutory damages
should approximate the amount the Plaintiff is out-of-pocket due
to the violation.

. . .

[T]he statutory damages award that

‘the court considers just,’ 47 U.S.C. § 605(e)(3)(C)(i)(II), is
an approximation of the damages actually incurred by Plaintiff
due to Defendant’s violation.”

J & J Sports Prods. v. Mumford,

No. DKC-10-2967, 2012 WL 6093897, at *3 (D.Md. Dec. 6, 2012).
In support of its claim for statutory damages in this case,
Plaintiff attaches the affidavit of Brian Stephens, a private
investigator who observed the Broadcast on four televisions and
6

four projection screens inside the establishment on May 4, 2013
at approximately 9:45 p.m.

(ECF No. 9-3).

The investigator

paid no cover charge to enter the establishment and remained
inside for approximately three minutes.

Mr. Stephens estimated

that the establishment’s capacity was approximately 150 people,
and he counted between 60 and 66 patrons at the establishment.
The

rate

chart

indicates

that

if

Defendant

had

purchased

a

license, it would have paid $4,200.00 to exhibit the match in an
establishment with a 150-person capacity.

(See ECF No. 9-4).

Accordingly, Plaintiff will be awarded statutory damages under §
605(e)(3)(C)(i)(II) in the amount of $4,200.00.1
B.

Enhanced Damages

Plaintiff also seeks enhanced damages under 47 U.S.C. §
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 $100,000.00 for each violation” of the provision.
“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

1

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. 9-2, 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)).
7

period

of

time;

3)

substantial

unlawful

monetary

gain;

4)

advertising the broadcast; and 5) charging an admission fee or
charging premiums for food and drinks.”

J & J Sports Prods.,

Inc. v. Royster, Civ. No. RWT-11-1597, 2014 WL 992779, at *4
(D.Md. Mar. 13, 2014) (quoting Quattrocche, 2010 WL 2302353, at
*2)).
Here, the fact that Defendant intercepted and exhibited the
Broadcast

willfully

and

for

direct

advantage cannot be doubted.
descramble

spontaneously,

themselves

to

cable

or

indirect

commercial

“After all, ‘[s]ignals do not

nor

do

distribution

televisions

sets

systems.’”

J

&

connect
J

Sports

Prods., Inc. v. Castro Corp., No. 11-188, 2011 WL 5244440, at *4
(D.Md.

Nov.

1,

2011)

(alteration

in

original)

(quoting

Time

Warner Cable v. Googuies Luncheonette, Inc., 77 F.Supp.2d 485,
490 (S.D.N.Y. 1999)).

On the other hand, Defendant did not

charge a cover fee, and there is no indication that Defendant
engaged in such conduct before or after the incident or that it
advertised the Broadcast.
“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

Quattroche, 2010 WL 2302353, at *3

Although judges in this district sometimes
8

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
Quattroche – 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.,
Civ. 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 this
district.
Rest.,

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

LLC,

No.

PJM-15-172,

2015

WL

3441995

(D.Md.

May

26,

2015); J & J Sports Prods., Inc. v. AKC Rest., Inc., No. DKC-142931, 2015 WL 1531279 (D.Md. Apr. 3, 2015).
that

J

&

J

Sports

Productions

continues

to

“It is troubling
proceed

regard to the many opinions written on this issue.”

without
J & J

Sports Prods., Inc. v. Sabor Latino Rest., Inc., No. PJM-133515, 2014 WL 2964477, at *2 (D.Md. June 27, 2014).

9

The cases

Plaintiff cites from other districts granting enhanced damages
do not erase the 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 default judgment

filed by Plaintiff will be granted in part and denied in part.
Judgment
$4,200.00.

will

be

entered

for

Plaintiff

in

the

amount

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

10

of