United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
J & J Sports Productions Inc. (“J & J”)
filed this action against DefendantsWalter Gil, Daysi Gil, and
Martin Salvador Zelada, alleging violations under the
Communications Act of 1934, as amended, 47 U.S.C. § 605
et seq.; the Cable and Television Consumer
Protection and Competition Act of 1992 (the “Cable
Act”), as amended, 47 U.S.C. § 553 et
seq.; and conversion. See Compl., ECF No. 1. J
& J has filed a motion for default against Defendants
Walter Gil and Daysi Gil only, seeking $151, 500 in total
damages: $100, 000 in statutory and enhanced damages under
the Communications Act, $50, 000 in statutory and enhanced
damages under the Cable Act, and $1, 500 in damages for the
tort of conversion. See Pl.’s Mot. 2, EF No.
10. For the reasons discussed below, I will (1) award
Plaintiff $4, 200 in statutory damages under 47 U.S.C. §
605(e)(3)(B)(iii); (2) deny Plaintiff’s request for
enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii); (3)
deny Plaintiff’s request for statutory damages and
enhanced damages under 47 U.S.C. § 553; (4) deny
Plaintiff’s request for damages based on conversion;
and (5) order Plaintiff and its counsel to show cause why
they should not be sanctioned under Fed.R.Civ.P. 11 for yet
again seeking enhanced damages that this Court repeatedly has
ruled are not recoverable and doing so without properly
acknowledging the scope of those rulings.
J had exclusive broadcast rights to the championship fight
between Floyd Mayweather Jr. and Robert Guerrero (the
“Program”) on May 4, 2013, and Defendants
broadcast the Program at their commercial establishment
without a license. Compl. ¶¶ 9, 12, ECF No. 1.
Plaintiff’s private investigator approximates the
maximum capacity at Defendants’ establishment at one
hundred people, Stephens Aff., ECF No. 10-3, and
Plaintiff’s Rate Card provides that the fee for a
license for an establishment of that size to show the Program
was $4, 200, Rate Card, ECF No. 10-4.
J served Daysi Gil on May 26, 2015, and her answer was due on
June 16, 2015. See ECF No. 6. J & J served
Walter Gil on May 28, 2015, whose answer was due on June 18,
2015. See ECF Nos. 7 & 7-1. Neither filed an
answer. On July 15, 2015, J & J filed a motion for
clerk’s entry of default against Walter Gil and Daysi
Gil. See ECF No. 8. The clerk entered default
against Walter Gil and Daysi Gil on August 6, 2015.
See ECF No. 9. On September 29, 2015, J & J
filed its motion for judgment by default against Walter Gil
and Daysi Gil. See Pl.’s Mot.
reviewed J & J’s motion for judgment by default,
the exhibits attached thereto, and the record in this case. I
find that Defendants Walter Gil and Daysi Gil were 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. Network, 253 F.3d 778, 780 (4th Cir.
2001), I find that Walter Gil and Daysi Gil are liable for
violations of 47 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. For these reasons, I will award J & J
damages as detailed below.
Statutory Damages under 47 U.S.C. §
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 *2-3 (D. Md. May 26, 2015).
Plaintiff provided the Rate Card showing $4, 200 as the
amount Defendant would have paid for a license to show the
Program. See Rate Card. Accordingly, I will award
Plaintiff a total of $4, 200 in statutory damages under 47
U.S.C. § 605(e)(3)(B)(iii).
Enhanced Damages under 47 U.S.C. §
has requested enhanced damages under 47 U.S.C. §
605(e)(3)(C)(ii). See Pl.’s Mot. 2.
Previously, I have granted limited enhanced damages under a
similar fact pattern to the present case where the defendant
acted willfully, the private investigator did not pay a cover
charge, and there was no evidence that the defendant
advertised the event or repeatedly violated the statute for
monetary gain. See J & J Sports Prods., Inc. v. Diaz,
Grandados, Inc., No. PWG-14-457, slip op. 2 (D. Md.
Sept. 28, 2015). The fact pattern present in this case
constitutes “non-egregious willfulness” that is
insufficient “to recover the maximum damages authorized
by statue and . . . damages under section 553, section 605,
and conversion for the same conduct.” See J & J
Sports Prods., Inc. v. Rumors, Inc., No. CCB-14-2046,
2014 WL 6675646, at *4 (D. Md. Nov. 21, 2014).
“Undaunted, J & J ‘has repeatedly filed
motions seeking excessive damages in nearly identical cases,
and the court has consistently addressed the limitations on
damages for the same causes of action brought
here.’” Id. (quoting J & J
Sports Prods., Inc. v. Sabor Latino Rest., Inc., No.
PJM-13-3515, 2014 WL 2964477, at *2 (D. Md. June 27, 2014)).
“In light of this recalcitrance, the court declines to
award any enhanced damages.” Id.
“[S]ince Rumors, J & J has made several
unsupported requests for the maximum amount of enhanced
damages in this district.” J & J Sports Prod.,
Inc. v. Intipuqueno, LLC, No. DKC 15-1325, 2016 WL
1752894, at *4 (D. Md. May 3, 2016) (citations omitted)
(denying Plaintiff’s request for maximum enhanced
damages where facts are almost identical to this case because
Plaintiff continues to request such damages and ignores
precedent of this Court denying its requests). It would be
one thing if Plaintiff had acknowledged the line of cases
from this Court denying enhanced damages in similar
circumstances and advanced a non-frivolous argument why a
different result would be warranted in this case, but it did
not. Plaintiff simply ignored clearly dispositive case law
that was inconsistent with its position and that it may not
do with impunity. Accordingly, I will follow the recent
rulings of this Court and decline to award J & J any
noted, Plaintiff and its counsel have ignored the clear
precedent of this Court in continuing to seek
“excessive” enhanced damages as requested in its
motion. In its argument seeking these damages, J & J
fails to cite to the portions of recent cases rejecting J
& J’s arguments for damages at the statutory
maximum level. J & J has acknowledged that
“[g]enerally, Plaintiffs cannot recover under both
statutes for the same conduct and courts allow recovery under
only § 605 as it provides for greater recovery.”
See Pl.’s Mem. 5 (citing J & J Sports
Productions, Inc. v. Quattrocche, No. WMN-09-3420, 2010
WL 2302353, at *1 (D. Md. June 7, 2010)). However J & J
ignores this Court’s ruling in the same
opinion rejecting its request for damages at the statutory
Plaintiff here has been a Plaintiff in many other nearly
identical cases and is on notice as to the kind of evidence
to which the courts look in determining statutory damages.
Instead of providing such evidence, it has chosen to argue
that the award should be the statutory maximum, including
enhancement, of $100, 000. This amount is extraordinarily
excessive in relation to awards in other similar cases and
Plaintiff provides no grounds for such a deviation,
especially when the evidence available shows profits to
Defendants far below the $1000 statutory minimum. Thus, the
Court finds that the statutory minimum damages of $1000 is an
Id. at *3. J & J ignores and does not cite to
this Court’s findings in Sa ...