J&J Sports Production, Inc. v. KD Retail, Inc.

Filing 10

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 4/20/2017. (aos, Deputy Clerk)

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-_FILED --LOGGED --RECEIVED CLEAK "IT ~REENaELT D/ST'AIC'T'OD/FSTAICT COUAT BY MAAYLAND DEPUTY * INC. * Plaintiff. * v. Civil Action No. PX 16-2380 * KD RETAIL. INC. T/A CORNER POCKET BAR AND GRill & T/A CORNER POCKET BAR & GRill * * Defendants. ****** MEMORANDUM OPINION Inc. ('"J & J") Iiled this action against Defendant KD Plaintiff J & .I Sports Productions Retail. Inc. tradi'iig"us Corner Pocket Bar and Grill or Corner Pocket Bar & Grill. J & J alleges violations under the Communications Cable and Television S 553 Consumer Act of 1934. as amended. 47 U.S.c. Protection and Competition U.S.c. S 605 el seq.; the Act of 1992. as amended. 47 U.S.C. el seq.; and conversion. See CampI.. ECF No. I . .I & J has Iiled a motion for default against KD Retail. seeking $15.897.50. S 605. attorneys' comprised of $2.200 in statutory damages under 47 $11.000 in additional enhanced damages under47 U.S.c. S 605. and $2.697.50 in fees and costs. See ECF NO.9 at 2. For the reasons discussed below. the Court shall award $13.697.50 to PlaintitTwhich consists of $ 11.000 in total enhanced damages under section 605. and $2.697.50 in attorneys' fees and costs. I. BACKGROUND J & .I had exclusive broadcast rights to a boxing match between Floyd Mayweather Jr. and Saul Alverez (the "Program") Program at their commercial on September establishment ENTERED APR 20 2017 FOR THE DISTRICT OF MAR YlAND J&J SPORTS PRODUCTIONS. ---- 14. 2013. and Defendants broad casted the without a license. Com pl.. ECF No. I. Plaintiffs private investigator approximates that thirty-five persons were inside the establishment the broadcast. Grant AfT.. ECF No. 9-3. Plaintiffs to enter Defendant's establishment investigator also paid a cover charge of$20 and view the Program.Id. the fee for a license for an establishmcnt during Plaintiffs Rate Card provides that of that size to show the Program was $2.200. See Rate Card. ECF No. 9-4. J & J served KD Retail on July 19.2016 with its Complaint. and KD Retairs answer was due on August 9. 2016. See ECF NO.6. Defendant did not file an answer. On October 7. 2016. J & J filed a motion for clerk's entry of default. See ECF NO.7. The clerk entered default against Defendant on September 2.2016. for judgment See ECF NO.8. On February 14.2017. J & J filed its motion by default. See PI:s Mot., ECF NO.9. II. STANDARD OF REVIEW Pursuant to Federal Rule of Civil Procedure 55(a). "[w]hen a p3l1y 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 parties default," Fed. R. Civ. P. 55(a). Thereafter. the court may enter default judgment at the plainti ffs request and after notice is provided to the defaulting party. Fed. R. Civ. P. 55(b)(2). PlaintifT. however. is not automatically entitled to defuult judgment dcfaultjudgment simply because the defendant has not responded. Rather. entry of is left to the sound discretion of the court. See. e.g.. Choice Holels Il1Iernalional. Inc. v. .fa 1Shree Navdurga. LLe. DKC 11-2893.2012 WL 5995248, at * I (D. Md. Nov. 29. 2012): see also Choice Holels Il1Iernalional. Inc. v. Auslin Area lImpilalily. TDC 15-0516.2015 Inc .. WL 6123523. at *1 (D. Md. Oct. 14.2015). Although the Fourth Circuit has announced a "strong policy" in favor of deciding cases on their merits. United Slales v. Sch'!!Ji!r Equip. Co .. II F.3d 450. 453 (4th Cir. 1993). a default judgment 2 may be appropriate when a party is unresponsive. 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)). III. ANAL YSIS After reviewing J & .l"s motion for judgment by default. the exhibits attached thereto. and the record in this case. the Court finds that Defendant was 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. Nellt'ork. 253 F.3d 778. 780 (4th Cir. 2001). the Court finds that Defendant is liable for violations of47 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. J & J cannot. however. recover statutory damages under section 553 and enhanced damages under section 605 for the same conduct. To hold otherwise would violate the maxim that "eourts can and should preclude double recovery EEOC v. Waffle House. Inc.• 534 U.S. 279. 297 (2002) (quoting Gen. Tel. Co. of the Nw .. Inc. v. EEOC. 446 U.S. 318. 333 (1980)). Accordingly. as J & J acknowledges. 5. "courts in this district consistently see Mem. Supp. Mot. Default J.. ECF No. 9-2 at have held that a plaintiff cannot recover under both statutes for the same conduct." J & J Spor/s Prods" Inc. v. Panana. LLC. No. WDQ-14-2047. 2014 WL 5454323. at *2 (D. Md. Oct. 24. 2014) (collecting cases). Instead. courts entering default judgment in identical situations permit recovery under section 605 alone on the ground that it authorizes a greater award than section 553. Id. This prohibition against double recovery also precludes J & J"s conversion 1597.2014 claim. See. e.g. J & J Spor/s Proill'" Inc. v. Roys/er, No. R WT -11- WL 992779. at *3 (D. Md. Mar. 13.2014). 3 Section 60S(e)(3)(C)(i) statutory damages. "Consistent allows Plaintiff to elect to recover either actual damages or 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 Inc. l'. El Rodeo Restaurant. LLe. NO.PJM-IS-I72, ... : . .J & .JSports Prods.. 20lS WL 344199S, at *2-3 (D. Md. May 26.20 IS). Plaintiff provided the Rate Card showing $2.200 as the amount Defendant would have paid for a license to show the Program. See Rate Card. ECF No. 9-4;.J &.J Sports Prod,'.. Inc. v. Greene, No. 10-010S. 2010 WL 2696672. at *S (D. Md. July 6, 2010) (granting statutory damages of $2,200 "as the amount that it was out-of-pocket Accordingly, the Court will award Plaintiffa due to Defendant's violation"). total 01'$2.200 in statutory damages under 47 U.S.c. ~ 60S(e)(3)(B)(iii). Plaintiff has also argued that it is entitled to enhanced damages pursuant to 47 U.S.c. ~ 60S( e)(3 )(C)(ii). which authorizes damages awards of up to $ 100.000 when "the violation was committed willfully and for the purposes of direct or indirect commercial advantage or private financial gain ... :. Courts look to several factors to determine whether enhanced damages are warranted. inclduing evidence of willfulness. time. substantial repeated violations over an extended period of unlawful monetary gains. advertising the broadcast. and charging an admission fee or charging premiums for food and drinks. See.J &.J Sports Prods.. Inc. v. Quat/rocche, No. WMN-09-CV-3420. 2010 WL 23023S3. at *2 (D. Md. June 7. 2010). Here. Defendant willfully intercepted an encrypted program signal to broadcast the tight and for direct or indirect commercial spontaneously. advantage. After all. "signals do not descramble nor do television sets connect themselves to cable distribution systems:' .J & .J Sports Prods .. Inc. v, Castro COIl'" No. I I-CV -00 188-A W, 20 I I WL S244440, at *4 (D. Md. Nov. 1.20 II) (quoting Time Warner Cahle v. GooKies Luncheonette. Inc., 77 F. Supp. 2d 48S. 4 490 (S.D.N. Y. 1999». violations. adve.tised Plaintiffs do not claim. however. that Defendants engaged in repeated the Program. or charged premiums for food and drinks during the broadcast. Defendants however. did charged an admission tee. and this aggravator alone can support enhanced damages as five-fold the statutory damages. QlIaltrocciJe. 20 I0 WL 2302353. at *3. Accordingly. Defendant's willfulness. as exhibited by intercepting the Program signal and charging $20 per head. warrant enhanced damages for total damages 01'$11.000. Finally. as the prevailing party. Plaintiff is entitled to an award of costs and reasonable attorneys' fees in this action pursuant to 47 U.s.c. S 605(e)(3)(I3)(iii). bears the burden of proving the reasonableness "The party seeking fees of the amount sought." .J &.J Sports Prod,. 1'. lvlllmlord. No. DKC-I 0-2967. 2013 W L 210623. at *2 (citing Robinsan v. Eqlli(ax IY(fiJ. Servs .. LLe. 560 F.3d 235. 243-44 (4th Cir. 2009». Plaintiff has submitted a detailed affidavit and a statement of costs and fees which retlecttotal attorneys' fees and costs associated with this case of $2.697.50. See ECr No. 9-6. The Court linds that this amount is reasonable because the hours expended are modest and the hourly rate is within the acceptable range.' Accordingly. will be awarded attorneys' fees and costs 01'$2.697.50. IV. CONCLUSION For the foregoing reasons. Plaintiff s motion for default judgment judgment Plaintiff will be entered in Plaintiff's favor for $13.697.50. will be granted and A separate order will follow. I Although the Court finds the hours expended to be modest (4.5) at an hourly rate on the higher end of rates permitted under Appendix B to this Court's Local Rules. (D. Md. Jul. 2016). ami/able al http://'' ww.mdd.uscOlll1S.gov/sites/mdd/files/LoeaIRules.pdL counsel in the future is cautioned to detail in its Statcment of Costs and Fees the attorneys' years of experience who performed the work and the individualized billing rates consistent with those rellected in Appendix B. 5 lSI 4/20/2017 Paula Xinis United States District Judge Date 6

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