J&J Sports Production, Inc. v. KD Retail, Inc.
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 4/20/2017. (aos, Deputy Clerk)
CLEAK "IT ~REENaELT
Civil Action No. PX 16-2380
KD RETAIL. INC. T/A
CORNER POCKET BAR AND GRill &
T/A CORNER POCKET BAR & GRill
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
Act of 1934. as amended. 47 U.S.c.
Protection and Competition
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.
comprised of $2.200 in statutory damages under 47
$11.000 in additional enhanced damages under47
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.
J & .I had exclusive broadcast rights to a boxing match between Floyd Mayweather Jr.
and Saul Alverez (the "Program")
Program at their commercial
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
that thirty-five persons were inside the establishment
the broadcast. Grant AfT.. ECF No. 9-3. Plaintiffs
to enter Defendant's
investigator also paid a cover charge of$20
and view the Program.Id.
the fee for a license for an establishmcnt
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
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.
See ECF NO.8. On February 14.2017. J & J filed its motion
by default. See PI:s Mot., ECF NO.9.
Pursuant to Federal Rule of Civil Procedure 55(a). "[w]hen a p3l1y against whom a
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
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.
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
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)).
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)
and 47 U.S.c. ~~ 553(c)(3)(B)
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
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.
5454323. at *2 (D. Md. Oct. 24. 2014) (collecting cases). Instead. courts entering default
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
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).
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
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
the Court will award Plaintiffa
due to Defendant's
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
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
inclduing evidence of willfulness.
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.
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
advantage. After all. "signals do not descramble
nor do television sets connect themselves to cable distribution
.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.
490 (S.D.N. Y. 1999».
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.
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
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,.
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
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.
For the foregoing reasons. Plaintiff s motion for default judgment
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.
United States District Judge
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