J&J Sports Productions, Inc. v. Sandoval & Sandoval, Inc.

          MEMORANDUM OPINION

          Charles B. Day United States Magistrate Judge.

         Before 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 described below.

         I. An Evidentiary Hearing is Not Required

         On 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.

         Upon 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. Md.).^[1]

         Defendants 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.

         Defendants' 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 observations.

         Defendants' 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.

         The 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.

         II. Plaintiff is Entitled to Statutory Damages

         In the 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).

         In its 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.

         As 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. Section 605.

         In 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 ...