United States District Court, D. Maryland, Southern Division
REPORT AND RECOMMENDATION
CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation addresses Plaintiff's Motion
for Default Judgment (ECF No. 13) (the “Motion”).
Plaintiff J&J Sports Productions, Inc.
(“Plaintiff”) filed a complaint against
Defendants El Tapatio, Inc., Beronica Navarro, and Ruben
Navarro Mendez (collectively “Defendants”),
alleging Defendants violated several federal statutes,
including The Communications Act of 1934 and The Cable &
Television Consumer Protection and Competition Act of 1992.
ECF No. 1. Pursuant to 28 U.S.C. Section 636 and Local Rules
301 and 302, the Honorable Theodore D. Chuang referred this
matter to the undersigned for the making of a Report and
Recommendation concerning default judgment and/or damages.
For the reasons stated herein, I recommend the Court
GRANT Plaintiff's Motion and award
Plaintiff $8, 200.
30, 2017, Plaintiff commenced this action against Defendants,
alleging that Defendants violated provisions of the Sections
605 of the Federal Communications Act of 1934 and 553 of The
Cable & Television Consumer Protection and Competition
Act of 1992. ECF No.1, pp. 2-7; 47 U.S.C. § 553; 47
U.S.C. § 605. The Complaint states that Plaintiff, an
international distributor of sports and entertainment
programming, held “the exclusive nationwide commercial
distribution (closed-circuit) right to the ‘Honor
Glory' Saul Alvarez v. Erislandy Lara Championship Fight
Program” (the “Program”), which
telecast nationwide on July 12, 2014. ECF No. 1 ¶ 15.
Plaintiff entered into various sublicensing agreements with
commercial entities that permitted the businesses to
“publicly exhibit the Program within their respective
commercial establishments in the hospitality industry.”
Id. at ¶ 16.
Hsu, an investigator employed by Plaintiff, declared in a
sworn affidavit that on July 12, 2014, he entered the
establishment of El Tapatio, Inc. (t/a El Tapatio Mexican
Restaurant) and observed the establishment showing the
Program on four television screens. ECF No. 13-9. Mr. Hsu
stated that the capacity of the establishment was
approximately 100 people, with the establishment being at
capacity at the time he was present. Id. Mr. Hsu
also declared that he paid a cover charge of ten (10) dollars
to enter the establishment. Id.
on Mr. Hsu's investigation, Plaintiff alleges that
Defendants violated provisions of the Sections 605 and 553
when it showed the Program without authorization. ECF No.1,
pp. 2- 7; 47 U.S.C. § 553; 47 U.S.C. § 605. Because
Defendants did not file an answer to Plaintiff's
Complaint, Plaintiff moved for and the Clerk entered a
default on January 16, 2018. ECF No. 12; see Fed. R.
Civ. P. 55(a). Plaintiff now seeks judgment by default to be
entered in its favor and against Defendants for the sum of
Thirty-Eight Thousand, One Hundred and Ninety-Four Dollars,
$38, 194.00, along with costs and post-judgment interest. ECF
of the Federal Rules of Civil Procedure governs entries of
default and default judgments. Rule 55(a) provides that
“[w]hen a party . . . 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). In considering a motion for 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 (4th Cir.
2001) (citation omitted); see also Fed. R. Civ. P
8(b)(6) (“An allegation - other than one relating to
the amount of damages - is admitted if a responsive pleading
is required and the allegation is not denied.”).
However, the entry of “default is not treated as an
absolute confession by the defendant of his liability and of
the plaintiff's right to recover.” Ryan,
253 F.3d at 780 (citations omitted). The Court “must,
therefore, determine whether the well-pleaded allegations in
[the] complaint support the relief sought.”
Id.; 10A Wright, Miller & Kane, Federal Practice
and Procedure § 2688.1 (4th ed. 2017) (“Liability
is not deemed established simply because of the default. . .
[and] the court, in its discretion, may require some proof of
the facts that must be established in order to determine
Fourth Circuit has repeatedly expressed a “strong
policy that cases be decided on the merits.” See,
e.g., United States v. Shaffer Equip. Co., 11
F.3d 450, 453 (4th Cir. 1993); Colleton Prepatory Acad.,
Inc. v. Hoover Univ., Inc., 616 F.3d 413, 417 (4th Cir.
2010). However, default judgment “may be 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).
“acceptance of [the] undisputed facts does not
necessarily entitle [the non-defaulting party] to the relief
sought.” Ryan, 253 F.3d at 780-81. If the
plaintiff establishes liability, the Court then turns to the
determination of damages. CGI Finance, Inc. v.
Johnson, No. ELH-12-1895, 2013 WL 1192353, at *1 (D. Md.
Mar. 21, 2013). In determining damages, the Court cannot
accept Plaintiff's factual allegations as true and must
make an independent determination. See Lawbaugh, 359
F.Supp.2d at 422. Rule 54(c) of the Federal Rules of Civil
Procedure limits the type and amount of damages that may be
entered as a result of a party's default, stating that a
“default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings.”
Fed.R.Civ.P. 54(c). While the Court may conduct an
evidentiary hearing to determine damages, it is not required
to do so “if the record supports the damages
requested.” Monge v. Portofino Ristorante, 751
F.Supp.2d 789, 795 (D. Md. 2010) (citing Pentech Fin.
Servs., Inc. v. Old Dominion Saw Works, Inc., No.
6:09cv00004, 2009 WL 1872535, at *2). The Court may rely
instead on affidavits or documentary evidence of record to
determine the appropriate sum. See, e.g., Monge, 751
F.Supp.2d at 795 (citing cases in which damages were awarded
after a default judgment and without a hearing, based on
affidavits, printouts, invoices, or other documentary
Defendants are Liable for Violating Either Section 553 or
Complaint and in its Motion, Plaintiff seeks 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 section 553 prohibits 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).
Complaint, Plaintiff does not specify how Defendants
intercepted the Program. That omission is not fatal as
“[t]he complaint need not specify the precise method of
interception, as pleading in the alternative is
permitted” at this stage. Joe Hand Promotions, Inc.
v. Md. Food & Entm't, LLC, Civil No.
CCB-11-3272, 2012 WL 5879127, at *4 (D. Md. Nov. 19, 2012).
Instead, Plaintiff can prove that Defendants violated either
Section 553 or Section 605 by showing that Defendants
“intercepted and ...