United States District Court, D. Maryland
REPORT AND RECOMMENDATION
Timothy J. Sullivan United States Magistrate Judge.
Report and Recommendation addresses the Motion for Default
Judgment (“Motion”) filed by Plaintiff J & J
Sports Productions, Inc. against Defendant El Rodeo
Restaurant LLC. (ECF No. 11.) Defendant has not filed a
response, and the time for doing so has passed. See
Loc. R. 105.2(a). On December 11, 2017, in accordance with 28
U.S.C. § 636 and Local Rule 301, Judge Chuang referred
this case to me for a report and recommendation on
Plaintiff's Motion. (ECF No. 12.) I find that a hearing
is unnecessary in this case. See Fed. R. Civ. P.
55(b)(2); Loc. R. 105.6. For the reasons set forth below, I
respectfully recommend that Plaintiff's Motion for
Default Judgment be granted in part and denied in part.
FACTUAL AND PROCEDURAL HISTORY
November 4, 2016, Plaintiff commenced this action against
Defendant El Rodeo Restaurant LLC, alleging violations of the
Communications Act of 1934, as amended, 47 U.S.C.
§§ 553 (unauthorized reception of cable services)
and 605 (unauthorized publication or use of communications),
and conversion. (ECF No. 1.) The Complaint states that
Plaintiff held “the exclusive nationwide television
distribution rights to . . . the ‘Manny Pacquiao v.
Brandon Rios, WBO International Welterweight Championship
Fight Program'” that was broadcast on November 23,
2013 (“Broadcast”). (ECF No. 1 ¶ 8.)
Plaintiff entered into agreements with various commercial
establishments that permitted the businesses to exhibit the
Broadcast for their patrons. (Id. ¶ 9.)
Defendant did not enter into such an agreement with Plaintiff
to exhibit the Broadcast. (Id. ¶ 11.) Despite
having “full knowledge that the [Broadcast]
was not to be intercepted, received
and exhibited by entities unauthorized to do so, ”
Plaintiff alleges, “Defendant . . . unlawfully
publish[ed], divulge[d] and exhibit[ed]” the Broadcast
in Defendant's establishment “for purposes of
direct or indirect commercial advantage or private financial
gain.” (Id.) Service of process was effected
on the Defendant on November 18, 2016. (ECF No. 7.) The
Defendant did not file an answer or responsive pleading
within the requisite time period. Plaintiff moved for entry
of default on February 21, 2017 (ECF No. 8) and the
Clerk's Entry of Default was entered on June 29, 2017
(ECF No. 9).
Standard for Entry of Default Judgment
determining whether to award a 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, 780-81 (4th Cir. 2001);
United States ex rel. Durrett-Sheppard Steel Co. v. SEF
Stainless Steel, Inc., No. RDB-11-2410, 2012 WL 2446151,
at *1 (D. Md. June 26, 2012). Nonetheless, the Court must
consider whether the unchallenged facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law. United States v.
Redden, No. WDQ-09-2688, 2010 WL 2651607, at *2 (D. Md.
June 30, 2012) (citing Ryan, 253 F.3d at 790).
Although the Fourth Circuit has a “strong policy that
cases be decided on the merits, ” United States v.
Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir. 1993),
default judgment “is appropriate when the adversary
process has been halted because of an essentially
unresponsive party.” S.E.C. v. Lawbaugh, 359
F.Supp.2d 418, 421 (D. Md. 2005). If the Court determines
that liability is established, the Court must then determine
the appropriate amount of damages. CGI Finance, Inc., v.
Johnson, No. ELH-12-1985, 2013 WL 1192353, at *1 (D. Md.
March 21, 2013). The Court does not accept factual
allegations regarding damages as true, but rather must make
an independent determination regarding such allegations.
Durrett-Sheppard Steel Co., 2012 WL 2446151 at *1.
of the Federal Rules of Civil Procedure provides that
“[i]f, after entry of default, the Plaintiff's
Complaint does not specify a ‘sum certain' amount
of damages, the court may enter a default judgment against
the defendant pursuant to Fed.R.Civ.P. 55(b)(2).” A
plaintiff's assertion of a sum in a complaint does not
make the sum “certain” unless the plaintiff
claims liquidated damages; otherwise, the complaint must be
supported by affidavit or documentary evidence. United
States v. Redden, No. WDQ-09-2688, 2010 WL 2651607, at
*2 (D. Md. June 30, 2012). Rule 55(b)(2) provides that
“the court may conduct hearings or make referrals . . .
when, to enter or effectuate judgment, it needs to . . .
determine the amount of damages.” The Court is not
required to conduct an evidentiary hearing to determine
damages, however; it may rely instead on affidavits or
documentary evidence in the record to determine the
appropriate sum. See, e.g., Mongue v. Portofino
Ristorante, 751 F.Supp.2d 789, 795 (D. Md. 2010).
Complaint seeks damages under two statutes, 47 U.S.C. §
605 and 47 U.S.C. § 553. As Plaintiff concedes, however
(see ECF No. 11-2 at 5), courts in this district
have previously held that plaintiffs cannot recover under
both statues for the same conduct, and generally allow for
recovery under § 605 as it provides for the greater
recovery. See J & J Sports Productions, Inc. v.
Royster, et al., No. RWT-11-1597, 2014 WL 992779, at *3
(D. Md. Mar. 13, 2014); J & J Sports Productions,
Inc. v. Frank Little Enterprises, LLC, No. DKC-12-0997,
2012 WL 6019366, at *2 (D. Md. Nov. 30, 2012).
as true the well-pleaded allegations of the Complaint (ECF
No. 1), Defendant's liability is readily established in
this case. To prove a violation of § 605(a), Plaintiff
must show that Defendant, without authorization, received and
divulged the Broadcast. See That's Entm't, Inc.
v. J.P.T., Inc., 843 F.Supp. 995, 999 (D. Md. 1993).
Plaintiff entered into a contract that granted it the right
to distribute the Broadcast. (ECF No. 1 ¶ 8.) Defendant
willfully exhibited the Broadcast to its patrons without
having obtained Plaintiff's authorization. (Id.
¶ 11). Accordingly, I find that Plaintiff has stated a
claim for relief under 47 U.S.C. § 605 (Count I).
Because Plaintiff cannot recover under both Count I and Count
II of the Complaint, I recommend that Plaintiff's Motion
for Default Judgment be granted as to Count I (47 U.S.C.
§ 605) and denied as to Count II (47 U.S.C. § 553).
I also recommend that Plaintiff's Motion be denied as to
Count III (conversion). See J & J Sports Productions,
Inc. v. Plaza Del Alamo, Inc., No. TDC-15-0173, 2016 WL
153037, at *2 (D. Md. Jan. 12, 2016) (denying default
judgment as to conversion claim because plaintiff had not
alleged that defendant had “unlawfully taken any of J
& J's tangible property or tangible documents that
evidence J & J's intangible rights”); see
also J & J Sports Productions, Inc. v. Henriquez Batres,
Inc., No. GJH-16-2385, 2017 WL 2937936, at *3 (D. Md.
July 10, 2017).
determined that Plaintiff has established liability, it is
now appropriate to determine the damages to which Plaintiff
is entitled. Plaintiff acknowledges that it “cannot
recover under both statutes for the same conduct, ” and
elects to recover under only 47 U.S.C. § 605. (ECF No.
11-2 at 5.) Specifically, Plaintiff requests statutory
damages pursuant to § 605(e)(3)(C)(i)(II).
(Id.) Judge Nickerson set forth the relevant
considerations in the statutory damages analysis under 47
U.S.C. § ...