J&J Sports Productions, Inc. v. LaCasa Del Mofongo LLC et al

Filing 10

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 11/19/2018. (jf3s, Deputy Clerk)

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

Civil Action No. 8:18-cv-01283-PX
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LACASA DEL MOFONGO LLC, et al.,
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Defendants.
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MEMORANDUM OPINION
Pending before the Court is Plaintiff J&J Sports Productions, Inc.’s (“J&J”) motion for
default judgment against Defendants LaCasa Del Mofongo LLC (“LaCasa”) and Domingo
Manana (“Manana”), seeking money damages. ECF No. 9. The issues are fully briefed, and the
Court now rules pursuant to Local Rule 105.6 as no hearing is necessary. For the reasons set
forth below, the Court grants Plaintiff’s motion for default judgment.
I.

Background
This case involves alleged violations of the Communications Act of 1934 arising from

the unlicensed televised exhibition of a boxing match. 47 U.S.C. § 605. J&J, a distributor of
sports and entertainment programming, avers that it held exclusive commercial distribution
rights to the Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program (the
“Program”), which took place on May 2, 2015. ECF Nos. 1 ¶15. J&J had entered into
sublicensing agreements with various commercial establishments such as bars and restaurants in
which J&J granted the rights to broadcast the Program. Id. ¶16. Defendants had no such
sublicensing agreement with J&J. ECF No. 9-4 at 2.1

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Defendant Manana owns and operates LaCasa restaurant. ECF No. 1 ¶¶13, 18-20.

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Tracy Green, a private investigator hired by J&J, declared via sworn affidavit to having
observed the Program’s broadcast while at LaCasa on May 2, 2015. ECF No. 1-1 at 2. Green
did not have to pay a cover charge to enter LaCasa, and during Green’s fifteen-minute stay,
Green saw about twenty-one to twenty-four customers at LaCasa, which has an estimated
maximum capacity of about fifty persons. Id. at 2-3. Green also saw thirteen televisions at
LaCasa. Id. at 2. According to J&J’s rate card for the Program, had J&J entered into a
sublicensing agreement with LaCasa, LaCasa would have owed J&J $3,000 based on a
“minimum capacity” of 1-100 persons. ECF No. 9-8.
On May 1, 2018, J&J filed suit against Defendants, alleging violations of the
Communications Act of 1934, 47 U.S.C. § 605, and seeking a total of $170,000 in damages.
ECF No. 1. Defendants Manana and LaCasa were properly served on May 10, 2018, and May
13, 2018, respectively. ECF Nos. 4, 5. Defendants failed to respond to or otherwise contest
J&J’s claims. ECF No. 9-4 at 2. J&J therefore requested entry of default, which the clerk
entered on August 20, 2018. ECF No. 8. On August 21, 2018, J&J sent Defendants notice of the
entry of default by certified mail, to which Defendants did not respond. ECF No. 9-1. J&J now
moves for default judgment, requesting $3,000 in statutory damages, $9,000 in enhanced
damages, and $2,245 in attorneys’ fees and costs. ECF No. 9.
II.

Standard of Review
Pursuant to Federal Rule of Civil Procedure 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 otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P.
55(a). Thereafter, the court may enter default judgment at J&J’s request and with notice to the
defaulting party. Fed. R. Civ. P. 55(b)(2). J&J, however, is not automatically entitled to default

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judgment simply because the defendant has not responded. Rather, entry of default judgment is
left to the sound discretion of the court. See, e.g., Choice Hotels Int’l, Inc. v. Jai Shree
Navdurga, LLC, DKC 11-2893, 2012 WL 5995248, at *1 (D. Md. Nov. 29, 2012); see also
Choice Hotels Int’l, Inc. v. Austin Area Hospitality, Inc., TDC 15-0516, 2015 WL 6123523, at *1
(D. Md. Oct. 14, 2015). Although the United States Court of Appeals for the Fourth Circuit has
announced a “strong policy” in favor of deciding cases on their merits, United States v. Schaffer
Equip. Co., 11 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)). “Upon [entry of] default, the well-pled
allegations in a complaint as to liability are taken as true, but the allegations as to damages are
not.” Lawbaugh, 359 F. Supp. 2d at 422.
III.

Analysis
The Court finds that default judgment is proper. Section 605 of the Communications Act

prohibits the unauthorized interception or receipt of certain radio communications, including
digital satellite television transmissions. 47 U.S.C. § 605; see also J & J Sports Prods., Inc. v.
Mayreal II, LLC, 849 F. Supp. 2d 586, 588 n.3 (D. Md. 2012). Accepting as true the Complaint
allegations, Defendants unlawfully intercepted and displayed the Program at LaCasa without
J&J’s authorization on May 2, 2015. Joe Hand Promotions, Inc. v. Md. Food & Entm’t, LLC,
No. CCB-11-3272, 2012 WL 5879127, at *4 (D. Md. Nov. 19, 2012). Accordingly, J&J has
established Defendants’ liability under § 605. Id.
With regard to damages, 47 U.S.C. § 605(e)(3)(C)(i) allows J&J to recover either actual
damages or statutory damages for the unauthorized interception and distribution of radio
communications. J&J seeks statutory damages, and in support, relies on investigator Green’s

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observations and the absence of a sublicensing agreement with Defendants authorizing
exhibition of the Program. Statutory damages should account for an approximation of the sum
lost to Plaintiff due to the violation. J & J Sports Prods. v. Mumford, No. DKC-10-2967, 2012
WL 6093897, at *2 (D. Md. Dec. 6, 2012). “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 (D. Md. May 26, 2015). J&J approximates the rate it would have charged Defendants to
broadcast the Program, and submits a rate card to that effect to support its requested $3,000.
ECF Nos. 9 at 1, 1-1 at 11. Statutory damages in the amount of $3,000 is appropriate and the
Court will award it.
In addition to statutory damages, J&J requests enhanced damages of $9,000. 2 Section
605(e)(3)(C)(ii) authorizes enhanced damages of up to $100,000 where “the violation was
committed willfully and for the purposes of direct or indirect commercial advantage or private
financial gain . . . .” ECF No. 9 at 2. To determine whether enhanced damages is appropriate,
courts consider any evidence of defendant’s willfulness, whether defendant engaged in repeated
violations over an extended period of time, the significance of the unlawful monetary gains, and
whether defendant advertised the broadcast or charged admission or premiums for food and
drinks. J&J Sports Prods., Inc. v. El Rodeo Restaurant, No. PJM 15-172, 2015 WL 3441995, at
*3 (D. Md. May 26, 2015).

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Plaintiff also originally sought money damages for violations of 47 U.S.C. § 553, but has not renewed that
request in its motion for default judgment. Damages are not available under both 47 U.S.C. § 605 and § 553 for the
same conduct, as Plaintiff well knows, having filed roughly 54 cases in this district alleging facts similar to this case.
See, e.g., J & J Sports Productions, Inc. v. Intipuqueno, LLC., No. DKC 15-1325, 2016 WL 1752894 (D. Md. May
3, 2016) (“As explained in numerous prior opinions from judges in this district, however, “[g]enerally [ ] plaintiffs
cannot recover under both [§§ 605 and 553] for the same conduct [.]”).

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Here, the Court can easily conclude that the Defendant’s interception of the Program was
willful. ECF No. 1 ¶18. After all, “signals do not descramble spontaneously, nor do television
sets connect themselves to cable distribution systems.” J & J Sports Prods., Inc. v. Castro
Corp., No. 11-00188-AW, 2011 WL 5244440, at *4 (D. Md. Nov. 1, 2011) (quoting Time
Warner Cable v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999)).
However, no evidence exists that Defendants realized significant financial profit from
broadcasting the Program3 or had committed any other such violation before or since the
broadcast of the Program. In short, J&J has failed to demonstrate that enhanced damages are
appropriate. The Court therefore denies J&J’s request.
J&J is entitled, however, to costs and reasonable attorneys’ fees as the prevailing party in
this action. See 47 U.S.C. § 605(e)(3)(B)(iii). “The party seeking fees bears the burden of
proving the reasonableness of the amount sought.” J & J Sports Prods. v. Mumford, No. DKC10-2967, 2013 WL 210623, at *2 (citing Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
243–44 (4th Cir. 2009)). J&J has submitted a detailed affidavit and a statement of costs and fees
totaling $2,245.00. See ECF Nos. 9-9, 9-10, 9-11. The Court finds that this amount is
reasonable because the hours expended are modest and the hourly rate is within the acceptable
range. Accordingly, J&J will be awarded attorneys’ fees and costs of $2,245.00.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion for default judgment will be granted and

judgment will be entered in Plaintiff’s favor for $5,245.00. A separate Order follows.

11/19/2018
Date

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/S/
Paula Xinis
United States District Judge

In fact, J&J’s own investigator did not pay a cover to enter LaCasa.

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