United States District Court, D. Maryland
Charles B. Day United States Magistrate Judge.
the Court is Plaintiffs Motion for Money Judgment
("Plaintiffs Motion")(ECF 30). The Court has
reviewed Plaintiffs Motion and the opposition and reply
thereto. No. hearing is deemed necessary. Local Rule 105.6
(D. Md.). For the reasons presented below, the Court GRANTS
Plaintiffs Motion awarding damages, fees and costs as
An Evidentiary Hearing is Not Required
August 3, 2018, this Court entered summary judgment for
Plaintiff. The Court hereby adopts the factual and procedural
background as stated in its Memorandum Opinion granting
Plaintiffs Motion for Summary Judgment. See ECF No.
28. Defendants' present opposition suggests that
Plaintiff "is not entitled to a money judgment on the
basis of the record at this time, as there remain disputed
issues of material fact, and the Plaintiff is not entitled to
judgment on the issue of damages as a matter of law, absent a
full and fair evidentiary hearing or trial on this
question." The Court respectfully disagrees.
the filing of Plaintiff s Motion for Summary Judgment,
Defendants were presented with the opportunity to present
evidence in support of their opposition. Evidence of a
material factual dispute was not provided. Here, Plaintiff
seeks the award of a monetary amount as damages. Once again,
Defendants have failed to submit any factual support in
opposition. While Plaintiff relies upon various affidavits
filed during its prosecution of this matter, Defendants have
not filed any affidavits or any other record evidence.
Defendants have not presented a factual dispute of any kind.
While Defendants have properly argued the law, and noted the
power of the Court to make a discretionary award, said
observations alone do not raise a sufficient basis for the
Court to require the appearance of counsel and witnesses to
engage in an intellectual exercise. Defendants have now
passed on two opportunities to direct the Court's
attention to any factual basis for challenging an award to
Plaintiff. Defendants are not entitled to a third
opportunity. As stated earlier, the Local Rules of the Court
make clear that "[u]nless otherwise ordered by the
Court, however, all motions shall be decided on the memoranda
without a hearing." Local Rule 105.6 (D.
challenge certain factual representations contained in the
affidavits of Joseph M. Gagliardi and Brian Stephens. Mr.
Gagliardi's affidavit states that Defendants conduct
"was done for purposes of direct or indirect commercial
advantage or private financial gain." See Aff
of Joseph M. Gagliardi ("Gagliardi Aff"), ECF No.
30-6. Such a statement is of no import to the Court's
decision making process, as it is not of a factual dimension.
This statement is more of a legal conclusion to be reached by
the trier of fact alone. The Court expressly gives no weight
to this statement.
challenge to the affidavit of Mr. Stephens is likewise
flawed. Defendants assert that because the affidavit does not
recite the incantation that the statements contained therein
are based upon "personal knowledge" then it is
unfit for the Court's consideration. This is elevating
form over substance. The affidavit states "I entered the
Cancun Grill"; "I ordered no drinks from the
waitress"; "I observed 5 televisions"; "I
observed the following programs" and more. The affidavit
clearly articulates the requisite "personal
knowledge" required by the rules. Even when testifying
in open court, witnesses are not obligated to parrot the
phrase that their testimony is based upon "personal
knowledge." This affidavit is clearly based on firsthand
argument that an evidentiary hearing is required is also
unsupported by the case law from a sister court in the Fourth
Circuit. In DirectTV, Inc. v. Adkins, 320 F.Supp.2d
474 (W.D. Va. 2004), Chief Judge Jones ruled upon a motion
for summary judgment regarding a claim, which like the
present matter, was filed pursuant to 47 U.S.C. 605. The
court granted the requests for statutory damages and
injunctive relief on the written submissions alone.
only record evidence before the Court has been presented by
Plaintiff. No. disputed issues of material fact have been
raised. Plaintiff is entitled to a damages, fees and costs.
The only remaining question is how much for each.
Plaintiff is Entitled to Statutory Damages
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. Mayreal II, 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 Mayreal
II, 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 displayed the Program at its
establishment, without authorization from [Plaintiff], on a
particular date and at a particular time." Id.
Plaintiff concedes, courts in this district have determined
that Plaintiff "cannot recover under both [§§
605 and 553] for the same conduct, so courts typically grant
recovery under only § 605, as it provides for greater
recovery." ECF No. 30-5, p. 6 (citing J&J Sports
Prods., Inc. v. Melgar, No. PJM 11-3339, 2012 WL
1852270, at *2 (D. Md. May 15, 2012); see also J&J
Sports Prods., Inc. v. Royster, No. RWT-11-1597, 2014 WL
992779, at *2 (D. Md. Mar. 13, 2014). Accordingly, Plaintiff
seeks recovery under Section 605. As set forth in the ruling
on the motion for summary judgment, the Court is persuaded
that Plaintiff has established a violation of 47 U.S.C.
awarding statutory damages, this Court has discretion to
award Plaintiff between "$1, 000 and $10, 000 for each
unauthorized reception and publication of a radio
communication by [Defendant] in violation of section
605(a)." J&J Sports Prods., Inc. v.
Quattroche, No. WMN-09-3420, 2010 WL 2302353, at *2 (D.
Md. June 7, 2010); 47 U.S.C. § 605(e)(3)(C)(i)(II).
Courts in this Circuit have determined the proper measure of
damages by either: 1) multiplying a fee per person by
"the number of patrons observed in the defendant's
establishment at the time the program was ...