United States District Court, D. Maryland, Southern Division
J. HAZEL, United States District Judge
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. 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.
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.
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.
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
STANDARD OF REVIEW
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)).
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.").
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.
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.