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J & J Sports Productions Inc. v. Henriquez Hatres, Inc.

United States District Court, D. Maryland, Southern Division

July 10, 2017

J & J SPORTS PRODUCTIONS INC., Plaintiff,
v.
HENRIQUEZ BATRES, INC., T/A TEXAS PARRILLADA Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, United States District Judge

         J & J Spoils Productions. Inc. ("J & J" or "Plaintiff) filed this action against Henriquez Batres. Inc., t/a Texas Parrillada ('"Defendant""), alleging violations of the Communications Act of 1934. as amended. 47 U.S.C. § 605 et seg., and the Cable and Television Consumer Protection and Competition Act of 1992. as amended, 47 U.S.C. § 553 et seq., and a common-law claim of conversion. See ECF No. 1 ¶¶ 1. 5; ECF No. 10-2 at 2.[1] After the Defendant failed to answer. Plaintiff moved for entry of default. ECF No. 8. and the Clerk entered default on October 12. 2016. ECF No. 9. On November 11. 2016. J & J filed a Motion for Default Judgment seeking $2, 200.00 in statutory damages pursuant to 47 U.S.C. § 605. $6, 600.00 in enhanced statutory damages pursuant to 47 U.S.C. § 605. and attorneys" fees and costs in the amount of $2, 210.00. for a total of $11.010.00. ECF No. 10 at 2. For the following reasons. Plaintiffs Motion. ECF No. 10. will be granted, in part, and denied, in part.

         I. BACKGROUND

         Plaintiff J & J contracted to hold "the exclusive nationwide television distribution rights to the "The One" Floyd Mayweaiher, Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight Program." (the "Program"). ECF No. 1 ¶ 8. The telecast rights held by Plaintiff "included all under-card bouts and fight commentary encompassed in the television broadcast of the event. . ."" Id. Plaintiff then entered into sublicense agreements with various commercial entities throughout North America, including Maryland, permitting them to publicly exhibit the Program in their establishments. Id. ¶ 9. Plaintiff employed a private investigative agency. The Agency Inc., to ensure that the Program was not being unlawfully exhibited by-entities that did not purchase the rights to broadcast the Program. Id. ¶ 12; ECF No. 1-1 at 2-3. Plaintiff has alleged that Defendant televised the Program at its commercial establishment on Saturday. September 14. 2013 without purchasing a license to broadcast the Program. ECF No. 1 ¶¶8. 11-13.

         Michael Henry, a private investigator with The Agency Inc., declared via sworn affidavit that he entered the Texas Parrillada in Montgomery Village, Maryland at 10:50pm on Saturday. September 14. 2013. the night the Program was broadcast. ECF No. 1-1 at 2. Henry observed the Program being displayed on three different televisions throughout the establishment, and approximated the capacity of the establishment to be between 50-60 people. ECF No. 1-1 at 2-3. Henry declared that he took three separate head counts, counting 55. 63, and 74 individuals present in the establishment. ECF No. 10-3 at 2. Henry attests that he was at the Defendant's establishment for over two hours and left at approximately 1:00am. Id. at 2-3. Plaintiffs Rate Card states that the fee for an establishment ranging from 0-100 people is $2, 200.00. ECF No. 10-4 at 1.

         Plaintiff filed 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. ECF No. 6 at 2. Defendant did not timely respond, and based on a motion filed by Plaintiff, on October 12. 2016. the Clerk of the Court entered default against the Defendant. ECF No. 6: ECF No. 9, Plaintiff filed its motion for default 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. 10 at 2.

         II. STANDARD OF REVIEW

         "When 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). "A defendant's default does not automatically entitle the plaintiff to entry of a default judgment: rather, that decision is left to the discretion of the court."" Echic. Credit Mgmt. Corp. v. Optimum Welding, 285 F.R.D. 371, 373 (D. Md. 2012). Although "[t]he Fourth Circuit has a "strong policy' that 'cases be decided on their merits.""' Choice Hotels Intern, Inc. v. Savannah Shakti Carp., No. DKC-11-0438. 2011 WE 5U8328 at *2 (D. Md. Oct. 25, 2011) (citing United Stales v. Shaffer Equip. Co.. 11 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[.]" Id. (citing S.E.C. v. Lawhaugh, 359 F.Supp.2d 418.421 (D. Md. 2005)).

         "Upon default, the well-pled allegations in a complaint as to liability are taken as true, although the allegations as to damages are not." Lawhaugh. 359 F.Supp.2d at 422. Fed.R.Civ.P. Rule 54(c) limits the type of judgment that may be entered based on a party's default: "A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." In entering default judgment, a court cannot, therefore, award additional damages "because the defendant could not reasonably have expected that his damages would exceed th[c] amount [pled in the complaint |." In re Genesys Data Techs.. Inc., 204 F.3d 124. 132 (4th Cir. 2000). While the Court may hold a hearing to prove damages, it is not required to do so: it may rely instead on "detailed affidavits or documentary evidence to determine the appropriate sum." Adkins. 180 F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605 F.2d 854. 857 (5th Cir. 1979)): see also Laborers' District Council Pension, et al, v. E.G.S., Inc., No. WDQ-09-31 74. 2010 WL 1568595. at *3 (D. Md. Apr. 16. 2010) ("[O]n default judgment, the Court may only award damages without a hearing if the record supports the damages requested.").

         III. ANALYSIS

         A. Liability

         In the initial complaint. Plaintiff sought to enforce both "sections 605 and 553 of 47 U.S.C.. which are provisions of the Federal Cable Act that address different modalities of so-called "cable theft.'" .J & J Sports Prods.. Inc. v. MayrealII, LLC. 849 F.Supp.2d 586. 588 (D. Md. 2012). Section 605 prohibits the "unauthorized interception or receipt of certain "radio" communications, including at least "digital satellite television transmission."" while § 553 proscribes ""the unauthorized interception or receipt of certain cable communications[.]".J & J Sports Prods.. Inc. v. Intipuqueno, LLC. No. DKC-15-1325. 2016 WL 1752894, at *2 (D. Md. May 3. 2016) (citing MayrealII, LLC. 849 F.Supp.2d at 588 n.3). Plaintiff does not describe the manner in which Defendant intercepted the Program; however "[t]he complaint need not specify the precise method of interception, as pleading in the alternative is permitted." Joe Hand Promotions. Inc. v. Md Food & Entm't, LLC, No. CCB-11-3272. 2012 WL 5879127. at *4 (D. Md. Nov. 19, 2012). In its Motion for Default Judgment. Plaintiff acknowledges that it cannot recover under both §§ 605 and 553 for the same conduct, and seeks recovery under § 605. FCF No. 10-2 at 5. Plaintiffs well-pleaded allegations establish that Defendant violated § 605 by alleging that Defendant "intercepted and displayed the Program at its establishment, without authorization from [Plaintiff], on a particular date and at a particular time." Joe Hand Promotions, Inc., 2012 WL 5879127. at *4.

         In analogous cases, however, courts have "not allowed recovery for claims of conversion." because damages would not exceed recovery "under §§ 553 or 605 and would result in double-recovery." J & J Sports Prods., Inc. v. Castro Corp., No. 11-CV-00188-AW. 2011 WL 5244440. at *3 (D. Md. Nov. 1. 2011) (citing J & J Sports Prods., Inc. v. J.R'Z Neighborhood Sports Grille. Inc., No. 2:09-03141. 2010 WL 1838432. at *2 (D.S.C. 2010)). Furthermore, the claim of conversion has historically been an action "only for tangible property." J & J Sports Prods., Inc. v. Plaza Del Alamo. Inc., No. TDC-15-01 73. 2016 WL 153037. at *2 (D. Md. Jan. 12. 2016). Even though courts in Maryland "have expanded conversion to include intangible rights." these intangible rights only exist in specific circumstances, such as "when tangible documents evidence those intangible rights, and the tangible documents themselves have then been improperly taken." Id. Plaintiff has not alleged that Defendant "has unlawfully taken any of J & J's tangible property or tangible documents that evidence J & J's intangible rights." Id. Therefore. Plaintiff has not established a valid claim for conversion.

         B. ...


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