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

Filing 11

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 10 Motion for Default Judgment; AWARDING Plaintiff a total of $4,200 in statutory damages; directing Plaintiff to serve Defendant Martin Salvador Zelada by 9/1/2016 and orderin g Plaintiff and its counsel to show cause why they should not be sanctioned under Fed. R. Civ. P. 11 by filing a memorandum by 8/16/2016, and appearing for a hearing on this matter on Friday, 9/9/2016, at 1:00 p.m. Signed by Judge Paul W. Grimm on 8/1/2016. (kns, Deputy Clerk)(c/m 8/2/16)

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

CASE NO.: PWG-15-1366

WALTER GIL T/A GIL’S RESTAURANT *
et al.
DEFENDANTS.
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MEMORANDUM OPINION AND ORDER
Plaintiff J & J Sports Productions Inc. (“J & J”) filed this action against Defendants1
Walter Gil, Daysi Gil, and Martin Salvador Zelada, alleging violations under the
Communications Act of 1934, as amended, 47 U.S.C. § 605 et seq.; the Cable and Television
Consumer Protection and Competition Act of 1992 (the “Cable Act”), as amended, 47 U.S.C.
§ 553 et seq.; and conversion. See Compl., ECF No. 1. J & J has filed a motion for default
against Defendants Walter Gil and Daysi Gil only, seeking $151,500 in total damages: $100,000
in statutory and enhanced damages under the Communications Act, $50,000 in statutory and
enhanced damages under the Cable Act, and $1,500 in damages for the tort of conversion. See
Pl.’s Mot. 2, EF No. 10. For the reasons discussed below, I will (1) award Plaintiff $4,200 in
statutory damages under 47 U.S.C. § 605(e)(3)(B)(iii); (2) deny Plaintiff’s request for enhanced
damages under 47 U.S.C. § 605(e)(3)(C)(ii); (3) deny Plaintiff’s request for statutory damages

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The suit was brought against Walter Gil t/a Gil’s Restaurant and Walter Gil t/a Gils
Restaurant Partnership t/a Gils Restaurant (collectively. “Walter Gil”). The suit was brought
against Daysi Gil t/a Gils Restaurant Partnership t/a Gils Restaurant (“Daysi Gil”). The suit was
brought against Martin Salvador Zelada t/a Gils Restaurant Partnership t/a Gils Restaurant,
(“Zelada”).

and enhanced damages under 47 U.S.C. § 553; (4) deny Plaintiff’s request for damages based on
conversion; and (5) order Plaintiff and its counsel to show cause why they should not be
sanctioned under Fed. R. Civ. P. 11 for yet again seeking enhanced damages that this Court
repeatedly has ruled are not recoverable and doing so without properly acknowledging the scope
of those rulings.
I.

BACKGROUND

J & J had exclusive broadcast rights to the championship fight between Floyd
Mayweather Jr. and Robert Guerrero (the “Program”) on May 4, 2013, and Defendants broadcast
the Program at their commercial establishment without a license. Compl. ¶¶ 9, 12, ECF No. 1.
Plaintiff’s private investigator approximates the maximum capacity at Defendants’ establishment
at one hundred people, Stephens Aff., ECF No. 10-3, and Plaintiff’s Rate Card provides that the
fee for a license for an establishment of that size to show the Program was $4,200, Rate Card,
ECF No. 10-4.
J & J served Daysi Gil on May 26, 2015, and her answer was due on June 16, 2015. See
ECF No. 6. J & J served Walter Gil on May 28, 2015, whose answer was due on June 18, 2015.
See ECF Nos. 7 & 7-1.2 Neither filed an answer. On July 15, 2015, J & J filed a motion for
clerk’s entry of default against Walter Gil and Daysi Gil. See ECF No. 8. The clerk entered

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J & J filed its complaint on May 12, 2015, and has not yet served Zelada. Under Fed. R.
Civ. P. 4(m), as it applied at the time the complaint was filed,
[i]f a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
I will order J & J to serve Zelada by September 1, 2016, or J & J’s case against Zelada will be
dismissed without further notice.
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default against Walter Gil and Daysi Gil on August 6, 2015. See ECF No. 9. On September 29,
2015, J & J filed its motion for judgment by default against Walter Gil and Daysi Gil. See Pl.’s
Mot.3
II.

DISCUSSION

I have reviewed J & J’s motion for judgment by default, the exhibits attached thereto, and
the record in this case. I find that Defendants Walter Gil and Daysi Gil were properly served yet
failed to plead or otherwise defend. Moreover, accepting the well-pleaded factual allegations in
J & J’s complaint as to liability as true, see Ryan v. Homecomings Fin. Network, 253 F.3d 778,
780 (4th Cir. 2001), I find that Walter Gil and Daysi Gil are liable for violations of 47 U.S.C.
§§ 605(e)(3)(B)(iii) & 605(e)(3)(C)(ii) and 47 U.S.C. §§ 553(c)(3)(B) & 553(c)(2)(c) and that
they acted willfully in violating the statutes. For these reasons, I will award J & J damages as
detailed below.4
A. Statutory Damages under 47 U.S.C. § 605(e)(3)(B)(iii)
“Consistent with prior case law in this District, the Court will accept the cost to purchase
the Program as the direct loss to J & J Sports Productions . . . .” J & J Sports Prods., Inc. v. El
Rodeo Restaurant, LLC, No. PJM-15-172, 2015 WL 3441995, at *2–3 (D. Md. May 26, 2015).
Plaintiff provided the Rate Card showing $4,200 as the amount Defendant would have paid for a

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Accompanying J & J’s motion is a memorandum of points and authorities, Pl.’s Mem.,
ECF No. 10-2. Defendants have not filed a response, and the time for doing so has passed. See
Loc. R. 105.2(a). A hearing is unnecessary. See Loc. R. 105.6.
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Because I find Walter Gil and Daysi Gil liable under the statutes and decline to permit
J & J double recovery as explained below with respect to both of these statutes and the tort of
conversion, I need not rule on whether they also would be liable under the tort of conversion.
See J & J Sports Prods., Inc. v. Castro Corp., No. AW-11-188, 2011 WL 5244440, at *3 (D.
Md. Nov. 1, 2011) (“Courts have similarly not allowed recovery for claims of conversion, as
they would not exceed those under §§ 553 or 605 and would result in double-recovery.” (citing
J & J Sports Prods., Inc. v. J.R.’Z Neighborhood Sports Grille, Inc., Civ. No. 2:09–03141, 2010
WL 1838432, at *2 (D.S.C. 2010))).

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license to show the Program. See Rate Card. Accordingly, I will award Plaintiff a total of
$4,200 in statutory damages under 47 U.S.C. § 605(e)(3)(B)(iii).
B. Enhanced Damages under 47 U.S.C. § 605(e)(3)(C)(ii)
Plaintiff has requested enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii). See Pl.’s
Mot. 2. Previously, I have granted limited enhanced damages under a similar fact pattern to the
present case where the defendant acted willfully, the private investigator did not pay a cover
charge, and there was no evidence that the defendant advertised the event or repeatedly violated
the statute for monetary gain. See J & J Sports Prods., Inc. v. Diaz, Grandados, Inc., No. PWG14-457, slip op. 2 (D. Md. Sept. 28, 2015). The fact pattern present in this case constitutes “nonegregious willfulness” that is insufficient “to recover the maximum damages authorized by statue
and . . . damages under section 553, section 605, and conversion for the same conduct.” See J &
J Sports Prods., Inc. v. Rumors, Inc., No. CCB-14-2046, 2014 WL 6675646, at *4 (D. Md. Nov.
21, 2014). “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.’” Id. (quoting 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.” Id. “[S]ince Rumors, J & J
has made several unsupported requests for the maximum amount of enhanced damages in this
district.” J & J Sports Prod., Inc. v. Intipuqueno, LLC, No. DKC 15-1325, 2016 WL 1752894, at
*4 (D. Md. May 3, 2016) (citations omitted) (denying Plaintiff’s request for maximum enhanced
damages where facts are almost identical to this case because Plaintiff continues to request such
damages and ignores precedent of this Court denying its requests). It would be one thing if
Plaintiff had acknowledged the line of cases from this Court denying enhanced damages in

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similar circumstances and advanced a non-frivolous argument why a different result would be
warranted in this case, but it did not. Plaintiff simply ignored clearly dispositive case law that
was inconsistent with its position and that it may not do with impunity. Accordingly, I will
follow the recent rulings of this Court and decline to award J & J any enhanced damages.5
As noted, Plaintiff and its counsel have ignored the clear precedent of this Court in
continuing to seek “excessive” enhanced damages as requested in its motion. In its argument
seeking these damages, J & J fails to cite to the portions of recent cases rejecting J & J’s
arguments for damages at the statutory maximum level.

J & J has acknowledged that

“[g]enerally, Plaintiffs cannot recover under both statutes for the same conduct and courts allow
recovery under only § 605 as it provides for greater recovery.” See Pl.’s Mem. 5 (citing J & J
Sports Productions, Inc. v. Quattrocche, No. WMN-09-3420, 2010 WL 2302353, at *1 (D. Md.
June 7, 2010)). However J & J ignores this Court’s ruling in the same opinion rejecting its
request for damages at the statutory maximum:
Plaintiff here has been a Plaintiff in many other nearly identical cases and is on
notice as to the kind of evidence to which the courts look in determining statutory
damages. Instead of providing such evidence, it has chosen to argue that the
award should be the statutory maximum, including enhancement, of $100,000.
This amount is extraordinarily excessive in relation to awards in other similar
cases and Plaintiff provides no grounds for such a deviation, especially when the
evidence available shows profits to Defendants far below the $1000 statutory
minimum. Thus, the Court finds that the statutory minimum damages of $1000 is
an appropriate award.
Id. at *3. J & J ignores and does not cite to this Court’s findings in Sabor:

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I granted a modest amount of limited enhanced damages ($6,600) in Diaz where J & J
requested the statutory maximum damages. In the current case, J & J is back before me seeking
the same exaggerated damages that I rejected in Diaz. Based on J & J’s repeated requests for
maximum damages while ignoring the precedent of this Court, some of my colleagues have
decided to award no enhanced damages at all to J & J. In light of this history, I am persuaded by
the view of my colleagues that no enhanced damages are appropriate because J & J continues to
request the maximum damages and fails to acknowledge the precedent of this Court.
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J & J Sports Productions 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. It is troubling that J & J
Sports Productions continues to proceed without regard to the many opinions
written on this issue.
Sabor, 2014 WL 2964477, at *2 (internal citations omitted). J & J has also failed to cite or
otherwise discuss this Court’s finding in Rumors:
J & J has been on notice, at least since Quattrocche—which merely codified past
judicial practice-that in a case of non-egregious 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., Civil No. PJM–13–3515, 2014 WL 2964477, at *2
(D.Md. June 27, 2014).
Rumors, 2014 WL 6675646, at *4.
“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.”

Intipuqueno, 2016 WL 1752894, at *4.6

Plaintiff cites to Quattroche for one

proposition but ignores the portions of the opinion that are contrary to its argument for maximum
statutory damages. Further, Plaintiff and its counsel fail to acknowledge and cite the same
contrary rulings of this Court in Sabor, Rumors, and Intipuqueno. On its face, this appears to be
a clear violation of Plaintiff’s counsel’s representations to this Court that their “claims, defenses,
and other legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law.” See Fed. R. Civ. P.
11(b)(2).

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I note that this Court issued a memorandum opinion and order in Intipuqueno after J & J
filed this motion for judgment by default. Nevertheless, J & J has a continuing obligation to
inform this Court of adverse precedent and did not after this Court ruled against it in
Intipuqueno.
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In Quattroche, counsel for J & J was Richard Kind of the Law Offices of Kind and
Dashoff. In Sabino, Rumours, Intipuqeno, and the present case, counsel for J & J were or are
Amy Keller, Erica Cook, and Richard Kind of the Law Offices of Kind and Dashoff. Plaintiff’s
counsel are members of the bar of the United States District Court for the District of Maryland.
“This Court applies the Rules of Professional Conduct as they have been adopted by the
Maryland Court of Appeals.” Loc. R. 704. Rule 3.3 states that a “lawyer shall not knowingly:
. . . (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
From the materials before me, it appears that Plaintiff’s counsel violated Maryland Rule of
Professional Conduct 3.3 by failing to disclose the precedent in Quattroche, Sabino, Rumours,
and Intipuqeno that was directly adverse to J & J’s position with respect to enhanced damages.
Under Fed. R. Civ. P. 11(c)(3), I will order Plaintiff and its counsel to show cause pursuant to
Fed. R. Civ. P. 11(c)(1) why they should not be sanctioned for yet again seeking maximum
enhanced damages without discussing contrary controlling precedent from this Court regarding
the extent of damages recoverable in this case.
C. Statutory Damages and Enhanced Damages under 47 U.S.C. § 553
“J & J cannot . . . recover under both section 553 and section 605. To hold otherwise
would violate the maxim that ‘courts can and should preclude double recovery . . . .’” Rumors,
2014 WL 6675646, at *2 (quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002)). J & J
acknowledges that this Court generally does not permit double recovery but seemingly urges that
I follow a Northern California district court in permitting recovery under both sections 605 and
553. See Pl.’s Mem. 5 (citing Spencer Promotions, Inc. v. 5th Quarter Enterprises, Inc., No. C94-0988 CW, 1996 WL 438789, at *8 (N.D. Cal. Feb. 21, 1996)). I will follow the precedent of
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this Court and deny J & J’s request for statutory and enhanced damages under 47 U.S.C. § 553
because I already have awarded J & J damages under 47 U.S.C. § 605.
D. Damages Based on Conversion
J & J also seeks damages of $1,500 for the tort of conversion.
Generally, . . . plaintiffs cannot recover under [§§ 553 and 605] for the same
conduct and courts allow for recovery under only § 605 as it provides for greater
recovery. Courts have similarly not allowed recovery for [the] claims of
conversion as they would not exceed those under §§ 553 or 605 and would result
in double recovery.
Quattrocche, 2010 WL 2302353, at *1 (citations omitted). I will follow the precedent of this
Court and deny J & J’s request for damages based on the tort of conversion because I already
have awarded J & J damages under 47 U.S.C. § 605.
III.

CONCLUSION

For the reasons explained above, I will GRANT IN PART AND DENY IN PART
Plaintiff’s motion for judgment by default.
ORDER
Accordingly, it is, this 1st day of August, 2016 hereby ORDERED that:
1. Plaintiff’s motion for judgment by default, ECF No. 10, IS GRANTED IN PART
AND DENIED IN PART as follows:
a. Plaintiff IS AWARDED a total of $4,200 in statutory damages under 47 U.S.C.
§ 605(e)(3)(B)(iii).
b. Plaintiff’s request for enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii) is
DENIED.
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c. Plaintiff’s request for statutory damages and enhanced damages under 47 U.S.C.
§ 553 IS DENIED.
d. Plaintiff’s request for damages based on conversion IS DENIED.
2. The Clerk of the Court shall send copies of this Order to the parties and CLOSE this
case with respect to Defendants Walter Gil and Daysi Gil;
3. Plaintiff is ordered to serve Defendant Zelada by September 1, 2016, or its case
against Zelada will be dismissed; and
4. Plaintiff and its counsel are ordered to show cause why they should not be sanctioned
under Fed. R. Civ. P. 11 by filing a memorandum of no more than 20 pages in length
by August 16, 2016, and appearing before me for a hearing on this matter on Friday,
September 9, 2016, at 1:00 p.m.

/S/
Paul W. Grimm
United States District Judge
Dh/dpb

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