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J&J Sports Productions, Inc. v. Shiva Foods, Inc.

United States District Court, D. Maryland

May 19, 2015

J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
SHIVA FOODS, INC., Defendant.

REPORT AND RECOMMENDATION

CHARLES B. DAY, Magistrate Judge.

This Report and Recommendation addresses Plaintiff's Motion for Judgment by Default (ECF No. 12) ("Plaintiff's Motion"). Pursuant to 28 U.S.C. § 636 and Local Rules 301 and 302, the Honorable Paul Grimm referred this matter to the undersigned for making a Report and Recommendation concerning default judgment and/or damages. For the reasons stated herein, I recommend the Court GRANT Plaintiff's Motion and award Plaintiff $2, 000.

I. Factual Background

On February 27, 2012, J&J Sports Productions, Inc., ("Plaintiff") purchased the exclusive television distribution rights to broadcast a program featuring a boxing match between Manny Pacquiao and Timothy Bradley (the "Program"). Pl.'s Compl. 3, ECF No. 1. Plaintiff subsequently entered sublicensing agreements with commercial establishments authorizing those entities to exhibit the Program to their patrons. Id.

Whitney Coleman, a private investigator, declared in an affidavit that on June 9, 2012, he entered the establishment of Shiva Foods, Inc., (t/a Stonefish Restaurant and Bar) (the "Defendant") and observed the establishment showing the Program on three television screens. Affidavit of Whitney Coleman 1, ECF No. 12-3 (hereinafter "Coleman Aff."). Five televisions at Defendant's establishment were also showing a basketball game. Id. Mr. Coleman estimated that as many as 129 people were at the establishment. Id. Mr. Coleman also estimated that the maximum capacity of the establishment was 215 people. Id. He was not charged a cover when he entered. Id.

On June 25, 2014, Plaintiff filed its Complaint alleging that Defendant violated provisions of the Sections 553 and 605 of the Federal Cable Act when it showed the Program without authorization. Pl.'s Compl. 2-5; 47 U.S.C. § 553; 47 U.S.C. § 605. Plaintiff also alleges that Defendant committed the tort of conversion. Pl.'s Comp. 5. Because Defendant did not file an answer to Plaintiff's Complaint, the Clerk entered a default on September 23, 2014. See Fed.R.Civ.P. 55(a). Plaintiff seeks $151, 500, but does not seek attorney's fees. Pl.'s Motion 2.

II. Legal Background

In considering a motion for default judgment, the Court accepts as true the well-pleaded factual allegations in the complaint as to liability. See Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (citation omitted). Still, "acceptance of [the] undisputed facts does not necessarily entitle [the non-defaulting party] to the relief sought." Id. at 780-81. To determine the proper measure of damages, the Court must make an independent factual inquiry. See, e.g., S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 422 (D. Md. 2005). While the Court may conduct an evidentiary hearing to determine damages, it is not required to do so "if the record supports the damages requested." Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 794-95 (D. Md. 2010). The Court may review "definite figures contained in the documentary evidence or in detailed affidavits." Eason v. Merrigan, Civil No. DKC-2003-0933, 2004 WL 903756, at *1 (D. Md. Apr. 28, 2004) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prod., 722 F.2d 1319, 1323 (7th Cir. 1983)). Courts determining damages without a hearing tend to rely on evidence with strong indicia of trustworthiness (such as signed affidavits and depositions taken under oath). See, e.g., Transportes Aereos De Angola v. Jet Traders Inv. Corp., 624 F.Supp. 264, 266 (D. Del. 1985) (requiring evidence that is "an adequate substitute for live testimony"); Phila. Indem. Ins. Co. v. Emerson, Civil No. ESH-14-301, 2015 WL 1359681, at *2 (D.D.C. Mar. 24, 2015) (relying on an affidavit "which attaches proof as to the amount of damages in the form of copies of checks from plaintiff to the insured"); Law Office G.A. Lambert & Assoc. v. Davidoff, Civil No. CKK-13-1734, 2014 WL 4056518, at *5 (D.D.C. Aug. 15, 2014) (relying on an affidavit and "billing records" and reducing the award where the damages claimed were "not supported in [their] entirety by the evidence submitted").

III. Discussion

A. Defendant is Liable for Violating Either Section 553 or Section 605.

Section 553 prohibits the unauthorized interception or receipt of certain "cable" communications. 47 U.S.C. § 553. Section 605 proscribes the unauthorized interception or receipt of certain "radio" communications. 47 U.S.C. § 605. In its Complaint, Plaintiff does not specify how Defendant intercepted the Program. That omission is not fatal as "[t]he complaint need not specify the precise method of interception, as pleading in the alternative is permitted" at this stage. Joe Hand Promotions, Inc. v. Md. Food & Entm't, LLC, Civil No. CCB-11-3272, 2012 WL 5879127, at *4 (D. Md. Nov. 19, 2012). Instead, Plaintiff can prove that Defendant violated either Section 553 or Section 605 by showing that Defendant "intercepted and displayed the Program at its establishment, without authorization from [Plaintiff], on a particular date and at a particular time." Id.

By this test, I believe Plaintiff has proven a violation of either Section 553 or Section 605. Plaintiff has alleged, via Mr. Coleman's affidavit, that Defendant displayed the Program at its establishment on June 9, 2012, at or around 9:50 p.m. Taking the factual allegations as true, I believe Plaintiff has proven that Defendant "intercepted and displayed the program at its establishment" "on a particular date and at a particular time." Joe Hand, 2012 WL 5879127, at *4. Plaintiff alleges that Defendant showed the Program without authorization. Pl.'s Compl. 3. I believe that taking this well pleaded factual allegation as true, Plaintiff has shown that Defendant showed the Program "without authorization." Joe Hand, 2012 WL 5879127, at *4. As such, I believe Plaintiff has proven a violation of either Section 553 or Section 605.

However, Plaintiff cannot recover under both provisions of the Federal Cable Act as courts "should preclude double recovery." EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (citation omitted). Instead, as this Court has done previously, I suggest this Court allow Plaintiff to recover "under section 605 alone, on the ground that it authorizes a greater award than section 553." J&J Sports Prods., Inc. v. Rumors, Inc., Civil No. CCB-14-2046, 2014 WL 6675646, at *2 (D. Md. Nov. 21, 2014).

Regarding Plaintiff's claim for conversion, where parties claim damages under Section 605 and for conversion, "[c]ourts 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." J&J Sports Prods., Inc. v. Quattrocche, Civil No. WMN-09-3420, 2010 WL 2302353, at *1 (D. Md. June 7, 2010) (citations ...


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