J&J Sports Productions, Inc. v. Mi Patio Restaurant, L.L.C.
MEMORANDUM OPINION (c/m to Defendant 4/28/16 sat). Signed by Judge Deborah K. Chasanow on 4/28/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
J & J SPORTS PRODUCTIONS, INC.
Civil Action No. DKC 15-1360
MI PATIO RESTAURANT, LLC
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. 12).
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.
On May 12, 2015, Plaintiff commenced this action against
“establishment”) alleging violations of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 553 (unauthorized reception of
communications), and the common law tort of conversion.
The complaint recites that Plaintiff “paid for and was
Guerrero, WBC Welterweight Championship Fight Program[,] which
telecast nationwide on Saturday May 4, 2013, [(the “Broadcast”)]
encompassed in the television broadcast of the event).”
Plaintiff then entered into sublicensing agreements 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
private financial gain.”
(Id. ¶ 11).
Service of process was effected on Defendant on May 20,
(ECF No. 6).
When Defendant failed to respond within the
requisite time period, Plaintiff moved for entry of default.
(ECF No. 8).
The clerk entered default on August 25.
Plaintiff filed the pending motion for default judgment on
(ECF No. 12).
To date, Defendant has taken no
action in the case.
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
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
entered based on a party's default: “A default judgment must not
differ in kind from, or exceed in amount, what is demanded in
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 have expected that his damages
would exceed that amount.”
In re Genesys Data Technologies,
Inc., 204 F.3d 124, 132 (4th Cir. 2000).
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
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.
Plaintiff seeks to enforce both “sections 605 and 553 of 47
address different modalities of so-called
J Sports Prods., Inc. v. Mayreal II, LLC, 849 F.Supp.2d 586, 588
interception or receipt of certain cable communications, while
section 605 proscribes the unauthorized interception or receipt
of certain “radio” communications, including at least “digital
satellite television transmission.”
Id. at 588 n.3.
complaint, Plaintiff does not specify how Defendant intercepted
the program, but that omission is not fatal.
need not specify the precise method of interception, as pleading
in the alternative is permitted.”
Joe Hand Promotions, Inc. v.
Md. Food & Entm’t, LLC, Civ. No. CCB-11-3272, 2012 WL 5879127,
allege, as it does here, that a business entity “intercepted and
authorization from [Plaintiff], on a particular date and at a
Taking those factual allegations as
true, Plaintiff has established a violation of either § 553 or §
$100,000 related to the violation of § 605, $50,000 for the
violation of § 553, and unspecified compensatory damages for the
(ECF No. 1).
In the motion for default
judgment, Plaintiff seeks the same amount of damages under §§
(ECF No. 12, 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
(ECF No. 12-2, at 5).
As explained in numerous
“[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–
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
“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., Civ. Action 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)).
allowable under § 605(e)(3)(C)(i)(II), and $100,000 in enhanced
damages, the maximum amount under § 605(e)(3)(C)(ii).
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
inside Mi Patio Restaurant on May 5, 2012 at approximately 12:06
(ECF No. 12-3).
The investigator paid no cover charge to
enter the establishment and remained inside for approximately
Mr. Stephens estimated that the establishment’s
capacity was approximately 150 people, and he counted between 90
and 99 patrons at the establishment.
The rate chart indicates
that if Defendant had purchased a license, it would have paid
$4,200 to exhibit the match in an establishment with a 150person capacity.
(See ECF No. 12-4).
will be awarded statutory damages under § 605(e)(3)(C)(i)(II) in
the amount of $4,200.1
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 for each violation” of the provision.
“In determining whether enhanced damages are warranted, other
evidence of willfulness; 2) repeated violations over an extended
advertising the broadcast; and 5) charging an admission fee or
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)).
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
Here, the fact that Defendant intercepted and exhibited the
advantage cannot be doubted.
“After all, ‘[s]ignals do not
Prods., Inc. v. Castro Corp., Civ. 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.
damages, courts in this Circuit have varied in awarding enhanced
statutory damage amount.”
Quattroche, 2010 WL 2302353, at *3
Although judges in this district sometimes
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
requests for the maximum amount of enhanced damages in this
See, e.g., J & J Sports Prods., Inc. v. El Rodeo
2015); J & J Sports Prods., Inc. v. AKC Rest., Inc., No. DKC-142931, 2015 WL 1531279 (D.Md. Apr. 3, 2015).
“It is troubling
regard to the many opinions written on this issue.”
J & J
Sports Prods., Inc. v. Sabor Latino Rest., Inc., No. PJM-133515, 2014 WL 2964477, at *2 (D.Md. June 27, 2014).
Plaintiff cites from other districts granting enhanced damages
do not erase the repeated, clear direction that multiple judges
Accordingly, no enhanced damages will be awarded.
For the foregoing reasons, the motion for default judgment
filed by Plaintiff will be granted in part and denied in part.
Judgment will be entered for Plaintiff in the amount of $4,200.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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