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J&J Sports Productions, Inc. v. Gil

United States District Court, D. Maryland, Southern Division

August 2, 2016

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
WALTER GIL T/A GIL’S RESTAURANT et al. DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         Plaintiff J & J Sports Productions Inc. (“J & J”) filed this action against Defendants[1]Walter 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.

         I. BACKGROUND

         J & 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 & 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.[2] 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.[3]

         II. DISCUSSION

         I have 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.[4]

         A. Statutory Damages under 47 U.S.C. § 605(e)(3)(B)(iii)

         “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 *2-3 (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).

         B. Enhanced Damages under 47 U.S.C. § 605(e)(3)(C)(ii)

         Plaintiff 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 enhanced damages.[5]

         As 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 maximum:

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 appropriate award.

Id. at *3. J & J ignores and does not cite to this Court’s findings in Sa ...


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