J&J Sports Production, Inc. v. Henriquez, Batres, Inc.

Filing 12

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/10/2017. (kns, Deputy Clerk)(c/m 7/10/17)

IN TIlE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOllt/lI!m Dh'isio/l
"
.1 & ,J SPORTS PRODUCTIONS INC.,

~

*

Plaintiff,

*

v.

*

HENRIQUEZ HATlmS, INC.,
T/A TEXAS PARRILLADA

*

Civil Action No. G.IH-16-B85

*
Defendant.

*
*

*

*

*

*

*

*

*

MEMORANllllM
.I &.1 SpOI1SProductions. Inc. (".I &

*

*

*

*

*

*

OPINION

r or "Plaintiff')

lilcd this action against Ilcnriqucz

Batrcs, Inc.. t/a Tcxas Parrill ada ("DefcndanC). allcging violations of the Communications Act
of 1934. as amcndcd. 47 U.S.c. ~ 605 ef seq .. and thc Cablc and Telcvision Consumcr Protection
and Compctition Act of 1991. as amendcd. 47 U.S.c. ~ 553 ef seq .. and a common-law claim of
convcrsion. See ECF No. I 11'i I. 5: ECF No. 10-1 at 1.' Alicr thc Defendant failed to answcr.
PlaintilTmoved fl)r cmry ofdcl~lUlt. ECF NO.8. and thc Clcrk cntcred dcl>lUlton Octobcr 11.
1016. Eel' NO.9. On Novcmbcr 11.1016 . .1& .Ilibl

a Motion fl)r Dcl[IlJit.ludgmcnt sccking

$1.100.00 in statutory damagcs pursuant to 47 U.S.C. ~ 605. $6.600.00 in cnhanccd statutory
damagcs pursuant to 47 U.S.c. ~ 60S. and allorncys' lees and costs inthc amount ofSl.lI0.00.
for a total 01'$1 1.010.00. ECF No. ]() at 1. For thc li)lIowing reasons. Plaintilrs

Motion. ECF

No. 10. w'ill bc granted. in part. and dcnicd. in part.

I Pin ciles to doculllents tiled on the Court"s electronic
by that system.

tiling system (C~VECF)

refef 10 the page numhers

generated

I.

BACKGROUND
Plaintiff.J

& .J contracted

to hold ..the cxclusive

to the "771e(Jne" Floyd '\!a,l'll'wther,
Champiomhip

Fight Program:'

Plaintiff"included
broadcast

cntities throughout

including

Saturday.

rights

tclccast rights hcld by

cncompasscd

in the telcvision

agrccments

Maryland.

pcrmitting

Inc .. to ensure that the Program was not being unlawfully

alleged that Defcndant
Septcmber

distribution

with various
thcm to publicly

Id. ~ 9, Plaintiff employed a private invcstigative

entities that did not purchase thc rights to broadcast
PlaintilThas

'i 8. The

cntcrcd into subliccnse

North America.

cxhibit the Program in their establishmcnts.
agency. Thc Agency

lOCI' No. I

bouts and light commentary

of the evcnt . , ,'. Id. PlaintilTthen

commcrcial

telcvision

.II', \', Salll Almre= II'BC Light ilfiddlell'eight

(thc "Program").

allundcr-card

nationwide

televised

the Program.

by

Id. ~ 12: lOCI' No. 1-1 at 2-3,

the Program at its commcrcial

14. 2013 without purchasing

exhibited

a license to broadcast

establishment

the Program.

on

ECF No. I

~~ 8. 11-13.
Michacillenry.

a private investigator

that he entered the Texas Parrillada
Septemher

14.2013.

Ilenry declared

Village. Maryland

on three differcnt televisions

thc capacity of the establishment

at I0:50pm on Saturday.

lOCI' No. I-I at 2. Ilenry observed

throughout

the establishment.

and

55. 63. and 74 individuals

lOCI' No. 10-3 at 2, Henry attests that he was at the Defendant's

for over two hours and left at approximately

Card statcs that the fee IiJr an estahlishmcnt

the

to be between 50-60 people, lOCI' No. I-I at 2-3,

that he took three separatc head counts. eounting

present in the estahlishmcnt.
establishment

in Montgomery

the night the Program was broadcast.

Program being displayed
approximated

with The Agency Inc .. declared via sworn affidavit

1:00am, Id at 2-3, PlaintiJrs

ranging from 0-100 people is $2.200.00.

10-4 at 1.

2

Rate

lOCI' No.

Plaintiff tiled the instant complaint on June 27. 2016. and served the Defendant on July
21. 2016. which meant that. by rule. an answer was due by August 11.2016. ECl' NO.6 at 2.
Defendant did not timely respond. and based on a motion tiled by Plaintiff: on Oetober 12.2016.
the Clerk of the Court entered delault against the Defendant. ECF NO.6: ECF No.9. Plaintiff
tiled its motion for delault judgment on November 18.2016. ECF No. 10. Plaintiff now requests
$2.200.00 in statutory damages. $6.600.00 in enhanced damages. and $2.210.00 in attorneys'
fees and costs. ECF NO.1 0 at 2.
II.

STANDARD OF REVIEW
"When a pm1y against whom a judgment for affirmative relief is sought has tailed to

plead or otherwise defend. and that failure is shown by affidavit or otherwise. the clerk must
enter the party's delault:. Fed. R. Civ. 1'. 55(a). "A delendant"s del~lUltdoes not automatically
entitle the plaintitTto entry ofa detaultjudgmenl:
the court:' Educ. Credit "'glllt. Corp.

1'.

rather. that decision is left to the discretion of

OptilllulII Weldillg. 285 F.R.D. 371. 373 (D. Md. 2012).

Although ..[tJhe Fourth Circuit has a 'strong policy' that 'cases be decided on their merits:"
Choice Ifotels l/1/el'l/.. Inc.

1'.

Sa\'l/I1I1ahSlwkti Carp .. No. DKC-II-0438.

20 II WI. 5118328 at

*2 (D. Md. Oct. 25. 2011) (citing United States \'. Shatfer Equip. Co.. II F.3d 450. 453 (4th Cir.
1993)). "default judgment may be appropriate when the adversary process has been halted
because of an essentially unresponsive party[T !d. (citing s.E.C. \'. LU\l'haugh. 359 F. Supp. 2d
418.421 (0. Md. 2005)).
"Upon detault. the well-pled allegations in a complaint as to liability arc taken as true.
although the allegations as to damages are not:' LlI\l'haugh. 359 F. Supp. 2d at 422. Fed. R. Civ.
1'. Rule 54(e) limits the type of judgment that may be entered based on a party's del~lUlt:"A
default judgment must not difter in kind Ii'om. or exceed in amount. what is demanded in the

pleadings:' In cntering default judgmcnt. a court cannot. thcreforc. award additional damagcs
"bccause the defendant could not reasonably havc expectcd that his damages would cxcced thle)
amountlplcd

in thc complaintJ:. In re (jenes)'s Daw Techs, Inc.. 204 F,3d 124. 132 (4th Cir.

2(00). While thc Court may hold a hearing to prove damages, it is not required to do so: it may
rely instead on "detailed affidavits or documcntary cvidcnce to detcrmine the appropriate sum:'
Adkins. 180 F, Supp, 2d at 17 (citing Uniled IIrlisls Corp. \', Freeman. 605 F.2d 854, 857 (5th
Cir. 1979)): see also Lahorers' Dislricl COllllci! l'ension, 1'1 al. \', EG.S" Inc.. No, WDQ-093174.2010

WL 1568595. at *3 (D. Md. Apr. 16.2(10) ("[O]n delaultjudgmcnt.

the Court may

only award damages without a hearing ii'the record supports the damages rcqucstcd,"),
III.

ANALYSIS
A. Liability

in thc initial complaint. Plaintiff sought to cnforce both "sections 605 and 553 of47
U.s.C" which are provisions oi'thc Fcdcral Cable Act that address different modalities of socall cd 'cable then .... .1 & .I Sporls I'rodl'" Inc, \" Ma)'reallJ.

Uc. 849

F. Supp. 2d 586. 588 (D,

Md, 2(12), Section 605 prohibits the "unauthorized interception or receipt of certain 'radio'
communications. including at least 'digital satcllite television transmission .... while ~ 553
proscribcs "the unauthorized intcrccption or rcccipt of ccrtain cable communications[.]".1

&.1

Sporrs I'rodl'" Inc, \', Inlipllljlleno, U.C. No. DKC-15-1325. 2016 WI. 1752894. at *2 (D. Md.
May 3. 2(16) (citing ,l/a)'rea!lJ. LLC. 849 F. Supp. 2d at 588 n.3), PlaintilTdoes not dcscribe the
man ncr in which Dcfendant intcrceptcd the Program: ho\\'Cvcr "ltJhc complaint nccd not spccify
thc precisc mcthod of intcrccption. as pleading in thc altcrnativc is pcrmittcd:' Joe flam!
I'ro/1/olions, Inc, \'. :11d Food & I:'nl/1//, LLC. No. CCB-II-3272.
'
Md. Nov. 19.2(12),

2012 WL 5879127. at *4 (D.

In its Motion for Dclault Judgment.l'laintilTacknolVlcdgcs

4

that it cannot

rccovcr under both ~~ 605 and 553 IClrthc same conduct. and seeks rccovcry
No, 10-2 at 5, Plaintitrs

wcll-pleaded

allcging that Dcfendant
authorization

"interceptcd

Irom II'laintiffj.

allcgations

cstablish

and displaycd

on a particular

that Dcfendant

undcr ~ 605. ECF

violatcd ~ 605 by

thc Program at its cstablishment.

datc and at a particular

without,

timc:' .loe lIal1ll

Pro/llo/iol1s, /11('. 2012 WL 5879127. at *4.
.
In analogous
convcrsion:'

cases. howevcr.

bccause damagcs

Neighhorhood
Furthcrmorc,

would not excecd rccovcry "undcr ~~ 553 or 605 and would

at *3 (D. Md. Nov, I. 2011) (citing.l

Spor/s Grille, /11('. No, 2:09-03141.
.
thc claim of convcrsion

&.lSpor/s

PI'()(II'.. /11(',\', J.R'Z

20 10 WL 1838432. at *2 (D.S,C, 20 I 0»,

has historically

bcen an action "only IClrtangible property:'

.I &.1 S'por/s Prod,' .. /I1C, \', Pla:a Del Ala/llo, 111(' No, TDC-15.0173.
..
(D, Md, .Ian, 12,2016),
intangiblc

rights:'

Evcn though courts in Maryland

thesc intangible

tangible documents

evidcncc

have thcn bcen improperly

1<1. Therefore.

I'laintiffhas

convcrsion

rights only exist in specific circumstanccs,

those intangiblc

takcn:'

2016 WL 153037. at *2

"havc cxpandcd

/<1.PlaintitThas

not allcgcd that Delendant

not cstablished

that evidencc.l

to includc

such as "whcn

rights. and thc tangible documcnts

takcn any 01'.1 & J's tangible property or tangible documcnts
rights:'

for claims of

.I & .I Sports Prods .. 111(',\', Cas/ro Corp .. No, II-CV -00 188-A W.

rcsult in double-rccovery:'
201 I WL 5244440.

courts havc "not allowed rccovcry

themsclvcs

"has unlawfully
& J's intangible

a valid claim for conversion.

8. ()anlagcs
In J & J's initial complaint.
amount 01'$50.000,00

and enhanccd

I'laintiffrcquestcd
statutory

Eel' No. I at 4-5, I-Iowever. in I'laintitrs
scck thc maximum

amount of damagcs

damagcs

statutory

damagcs

at the maximum

Motion IClrJudgment

amount 01'$100.000,00,

by Delimit. Plaintiff docs not

fClrboth statutory and cnhanccd

5

at thc maximum

damagcs.

but rathcr.

requests $2.200.00 in statutory damages and $6.600.00 in enhanced statutory damages under
605. [CF No. 10 at 2. Therefore. the Court will address damages undcr
\.

*

* 605.

Statutory Dama~cs Pursuant to "7 U.S.c. ~ 60S

Plaintiffis seeking statutory damages in the amount 01'$2.200.00 pursuant to 47 U.S.c.

*

605(e)(3)(B)(iii). ECF No. 10 at 2. In order to determine the appropriate amount of statu lory
damages. courts in this District have looked at the amounts the offending establishment would
have been required to pay to exhibit the boxing matches legally. See.l & .I Sporl.\' Prods .. II/c. ,'.
Greel/e. No. 10-0 I05. 20 I0 WL 2696672. at * 12 (D. Md. July 6. 20 J 0); see also.l & .I Sporls
Prods .. II/c. ". EI Rodeo Resl .. Ue. No. PJM-15- J 72. 20 J 5 WL 3441995. at *2-3 (D. Md. May
26. 20 J 5) ("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 .. :'). llere. this amount is based on the Rate
Card provided by Plaintiff. ECF No. J 0-4. The Rate Card states that an establishment that
purchases the rights to broadcast the Program from J & J must pay $2.200.00 if the seating in the
establishment is betwcen 0- J 00 individuals. !d
Plaintifrs private investigator was at Defendant's establishment while the Program was
being exhibitcd for over two hours. ECF No. I-I at 2-3. The private investigator states in his
Aftidavit that Defendant's establishmcnt had a seating capacity of approximately 50-60
individuals. [CF No. J 0-3 at 2. PlaintifTs private invcstigator also states that he "counted thc
number of patrons three

[J

separate times [and] [t]he hcad counts were 55. 63. [andl 74"

individuals. !d The three head counts of the patrons at Defendant's establishment allf~t11within
the 0-100 range provided in I'laintilrs

Rate Card. [CF No. 10-4. Therej()re. thc Court will award

I'laintifTthe amount 01'$2.200.00 in statutory damagcs.

6

2. Enhanced Statutory Damages Pursuant to .t7 U.S.c. ~ 60S
PlaintilTadditionally

seeks enhanced damages pursuant to 47 U.S.c.

* 605(e)(3)(C)(ii).

which permits the court to award damages up to "an amount of not more than $100.000.00 for
each violation of subsection (a) of this section" committed by the Defendant. "In determining
whether enhanced damages arc warranted. other courts in this circuit have looked to several
factors: 1) evidence of willfulness: 2) repeated violations over an extended 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," Quattl'ocche. 2010 WL 2302353. at *2 (citing
.Joe Hand Prolllotions. Inc. \'. Bougie. Inc.. NO.1 09-00590.2010

WL 1790973. at *5 (E.D. Va.

April 12. 2010».
In previous cases . .I & .I has repeatedly ignored the preecdent set forth by courts in this
jurisdiction. and sought to recover the maximum amount of damages under
ECI' No. 10-2 at 7: see e.g .. 111lipuqueno. Ue.

* 605. $100.000.00.

2016 WL 1752894:.J &.J Spol'lS Prods .. Inc. ".

,\Ii Patio Rest .. LLe. No. DKC-15-1360. 2016 WL 1696554. (D. Me\. Apr. 28.2016): £1 Rodeo
Rest .. LLe. 2015 WL 3441995: .J & .JSports Prods .. Inc. \'. AKe Rest. Inc.. No. DKC-14-2931.
2015 WL 1531279. (D. Md. Apr. 3. 2015):.J &.J Sports Prods .. Inc. \'. RUlllol's !llC No. CCH..
14-2046. 2014 WL 6675646. (D. Md. Nov. 21.2014). In those cases. thc amount of damagcs
sought by .I & .I was dctermined to be exccssive and wcrc denied by the court. .J &.J Sports
Prods .. Inc. \'. Sahol' Latino Rest .. Inc.. No. PJM-13-3515. 2014 WL 2964477. at *2 (D. Md.
June 27. 2014). Here . .I & .I is requesting a reduced sum 01'$6.600.00 for enhanced damages
under 47 lJ.S.c.

* 605. ECF NO.1 0 at 2. Thus. the wholesale denial of enhanced damages is not

warranted.

7

When applying the factors set liJrth in QuattrocchI'. it is cvident that Defendant
"intercepted and exhibited the Program willfully and for direct or indirect commercial
advantage:'

ECF No. 10-2 at 6-7. becausc "[s]ignals do not descramble spontaneously. nor do

television sets connect themselves to cable distribution systems," Castro Corp .. 20 II WL
5244440. at *4 (quoting Till/I' Warner Cahle \'. Googies Luncheone11e. Inc.. 77 F. Supp. 2d 485.
490 (S.D.N.Y. 1999)). On thc othcr hand.Plaintiffconccdes
Defendant in this matter has repeat[

1 violations

that"ftJhere is no evidencc that the

or [had any] advcrtising associatcd with the

broadcast of the Program. and the investigator did not pay a cover charge," ECF No. 10-2 at 7.
Nevertheless. courts in this jurisdiction have found that cven when there is "no evidcncc of
repeat violations. monetary gains. advertising ofthc broadcast. or the charging of an admission
fec or prcmiums for food and drinks ... some enhanced damages are proper to deter potential
future unlawful uses of communications," Sahor Latino Rest .. Inc.. 2014 WL 2964477. at *3: see
also.f & .I Sports Prods .. Inc. \'. KD Retail. Inc.. No. PX-16-2380. 2017 WL 1450218. at *2 (D.
Md. Mar. 20. 2017): Qual/rocche. 2010 WL 2302353. at *3. "Where there arc no allegations of
repeat behavior or otherwise egregious willfiJlness warranting harsh punitive damages. courts in
this Circuit have varied in awarding enhanced damages from no enhanced damages to up to live
times the statutory damage amount." See e.g.. Qual/rocche. 2010 WL 2302353. at *3 (citation
omitted) (awarding enhanced damages at live times the amount of statutory damages): KD
Retail. Inc.. 2017 WL 1450218 (same); Castro Corp .. 2011 WL 5244440 (awarding enhanced
damages at three times the amount of statutory damages): Sahor Latino Rest .. Inc.. 2014 WL
2964477 (same):.f & .I Sp0l'/S Prods .. Inc. \'. Drakefiml. No. 0: 16-cv-OI 117-MBS. 2016 WL
5110170. (D.S.C. Sept. 21. 2016) (same); Plaza Del AlaII/O. Inc.. 2016 WL 153037 (awarding

8

enhanced damages at two times the amount of statutory damages):.1 & .I Sporls Prods .. Illc.
Shim

I'.

Foods. Il1c.. No. PWG-14-2049. 2015 WL 2452421. (D. Md. May 19.2(15) (same).

In .'labor Lalillo Rcslauralll.

the eourt fl)llnd that the defendant was liable for enhanced

damages at three times the amount of statutory damages awarded where the defendant willfully.
and Il)r purposes of commercial advantage. broadcast J & J's Program without purchasing the
rights to do so. the establishmcnt was filled to nearly three-quarters capacity (154 individuals
present in a 200-person establishment). and had the Program exhibited on six televisions: but the
defendant was also a first time offender. did not charge a cover lee or premiums fl)[ food and
drinks. and did not advertise the Program or receive substantial monetary gain. See Sahor Lalillo
Resl .. IlIc .. }014 WL }964477. at *3. Similarly. here. Defendant willfully. and Il)[ purposes of

commercial advantage. broadcast the Program without purchasing the rights to do so

11'01))

PlaintifL had all three televisions exhibiting the Program. and the establishment was near or over
the capacity of 50-60 individuals: however. Defendant is allegedly a first time oflender. did not
charge a cover fee or premiums for food and drink. and did not advertise the Program. See ECF
Nos. 10-2 at}. 6-7.10-3

at I-}. Nevertheless. Defendant's intentional act of intercepting and

exhibiting the Program without paying the fee is surticient to warrant some enhanced damages.
Therefl)re.just as in Sahor I.alillo. Plaintiff will be awarded three times the amount of statutory
damages. fl)r a total of $6.600.00 in enhanced damages.
3. Attorneys' Fees and Costs
Under 47 U.S.c. ~ 605(e)(3)(B)(iii). J &.1. as the prevailing party. is entitled to
reasonable attorneys' fees and costs associated with this action. "The party seeking fees bears the
burden of proving the reasonableness of the amount sought:".1 &.1 Sporls Prods .. 111L'.
I'.
MUll/fill'll. No. DKC-]O-}967. }013 WL }10623. at *} (citing Rohillsoll

<)

P.

Equifilx Illfit. Sen's ..

He. 560 F.3d 235. 243-44 (4th Cir. 2009)). J & J has submitted a document detailing the
attorneys' costs and fees arising from this case in the amount 01'$2.210.00. ECF No. 10-6 at 3.ln
its "Affidavit and Certification of Attorney' s Fees and Costs" and "Statement of Costs and
Fees." I'laintilrs

counsel has only provided the timc allotment and the billing rate pCI'hour for

each item they arc seeking recovery for. See ECF No. 10-6 '12; ECF No. 10-6 at 3. Counsel has
failed to provide the years of experience of the attorney that performed the work on each item.
and has only provided the hourly rate of $350.00 per hour I(H a total of 3.1 hours. Id As a result.
the Court cannot determine if the rate charged is reasonable and within the range provided in
Appendix B of the Local Rules. PlaintitTwill be given ten days from the date of this opinion to
provide a supplemental affidavit establishing the years of practice

I(H

any attorney for whom fees

are sought.
IV.

CONCLUSION
For the foregoing reasons. Plaintiffs Motion for Default Judgment will be granted.

111

part. and denied. in part. Judgment will be entered for I'laintiffin the amount 01'$&.800.00.
I'lainti 1'1'
shall provide a supplemental allidavit establishing the years of practice for any attorney
for whom fees are sought. A separate Order will follow.

7(;012°/7
~~L
United States District Judge

Date

10