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 Defendants Seafood Palace
Buffet, Inc., et al. (ECF No. 17.) On February 12,
2018, 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. 18.)
Having considered the submissions of the parties (ECF Nos.
17, 19 & 21), 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
August 22, 2017, Plaintiff commenced this action against
Defendants Seafood Palace Buffet, Inc., Anna Zheng, Meng
Wang, and Cynthia Salley Rawls, 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.
(ECF No. 1.) The Complaint states that Plaintiff held
“the exclusive nationwide commercial distribution
(closed-circuit) rights to . . . the ‘Mayhem, '
Floyd Mayweather, Jr. v. Marcos Rene Maidana, II, WBC World
Lightweight Championship Fight Program” (hereinafter,
the “Program”), which was broadcast on September
13, 2014. (Id. ¶ 15.) Plaintiff entered into
agreements with various commercial establishments that
permitted the businesses to exhibit the Program for their
patrons. (Id. ¶ 16.) Defendants did not enter
into such an agreement with Plaintiff to exhibit the
Program.(See Id. ¶ 17.) Defendants
acted to “unlawfully intercept, receive, publish,
divulge, display [and] exhibit the Program at the time of its
transmission at their commercial establishment.”
(Id. ¶ 18.) Service of process was effected on
Defendants. (ECF No. 5, 8, 9 & 11.) Defendants did not
file an answer or responsive pleading within the requisite
time period. Plaintiff moved for entry of default as to each
of the Defendants on November 15, 2017. (ECF Nos. 12, 13, 14
& 15.) The Clerk's Entry of Default as to each of the
Defendants was entered on January 16, 2018. (ECF No. 16.)
Thereafter, Plaintiff filed the instant Motion (ECF No. 17).
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. 17-6 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), Defendants' liability is readily established in
this case. To prove a violation of § 605(a), Plaintiff
must show that Defendants, without authorization, received
and divulged the Program. 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 Program. (ECF No. 1 ¶ 15.) Defendants
unlawfully exhibited the Program to the patrons at their
establishment. (Id. ¶ 18). 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).
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.
17-6 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. § ...