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

United States District Court, D. Maryland

January 18, 2019



          Ellen Lipton Hollander United States District Judge

         On February 23, 2018, plaintiff J&J Sports Productions, Inc. (“J&J”) sued Glanville, Inc., t/a Savana's Island Bar & Grill, t/a Savannah Island, t/a Savannah's (“Glanville”); Shannon Glanville; and Lores Glanville.[1] ECF 1 (“Complaint”). Plaintiff alleges that it had exclusive distribution rights to the “Floyd Mayweather, Jr. v. Andre Berto WBA/WBC Welterweight Championship Fight Program” (the “Program”) and that defendants violated 47 U.S.C. §§ 605 et seq. and 47 U.S.C. §§ 553 et seq. by intercepting and broadcasting the Program without a valid sublicensing agreement. Id. (italics in original). Plaintiff seeks statutory and punitive damages. Id. ¶¶ 25, 30.

         Plaintiff provided returns of service for all three defendants. ECF 5; ECF 6; ECF 7. However, defendants did not respond to the suit. See Docket. Therefore, pursuant to requests by J&J (ECF 8; ECF 9; ECF 12), the Clerk entered a default as to Shannon (ECF 10) and Lores (ECF 11) on April 19, 2018, and as to Glanville on May 2, 2018. ECF 13. The matter of service on Lores is discussed, infra.

         On May 31, 2018, counsel for plaintiff notified the Court that on May 26, 2018, Shannon initiated bankruptcy proceedings in the U.S. Bankruptcy Court for the District of Maryland. See ECF 14. Therefore, under 11 U.S.C. § 362(a)(1), this litigation was automatically stayed as to Shannon. But, the automatic stay did not preclude the continuation of the suit as to Lores and Glanville. See Kreisler v. Goldberg, 478 F.3d 209, 213 (4th Cir. 2007).

         On June 19, 2018, plaintiff filed a Request for Entry of Default Judgment (ECF 16) as to Glanville and Lores, supported by a memorandum of law (ECF 16-4) (collectively, the “Motion”) as well as exhibits. ECF 16-5 to ECF 16-12. The Motion requests entry of judgment against defendants in the amount of $14, 200. ECF 16 at 2. In particular, J&J seeks $2, 000 “[f]or statutory damages under 47 U.S.C. § 605”; $10, 000 “[f]or enhanced damages under 47 U.S.C. § 605”; and $2, 200 in “attorney's fees and costs, ” for a total of $14, 200. Id.

         No hearing is necessary to resolve the Motion. Local Rule 105.6. For the reasons that follow, I will deny the Motion, as premature, and without prejudice.


         Rule 55(b) of the Federal Rules of Civil procedure governs default judgments. In particular, Rule 55(b)(1) provides that the clerk may enter a default judgment if the plaintiff's claim is “for a sum certain or a sum that can be made certain by computation.”[2] But, “[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. Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 794 (D. Md. 2010) (Grimm, M.J.).[3]

         To be sure, the United States Court of Appeals for 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); see Tazco, Inc. v. Director, Office of Workers' Compensation Program, 895 F.2d 949, 950 (4th Cir. 1990). But, that policy is not absolute. Default judgment “‘is appropriate when the “adversary process has been halted because of an essentially unresponsive party.'” Entrepreneur Media, Inc. v. JMD Entertainment Group, LLC, 958 F.Supp.2d 588, 593 (D. Md. 2013) (quoting SEC v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005)).

         Upon the entry of default against a party, the court must determine whether the undisputed factual allegations constitute a legitimate cause of action. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780-81 (4th Cir. 2001); see also 10A Wright, Miller & Kane, Federal Practice and Procedure § 2688 (3d ed. 2010 Supp.) (“[L]iability 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 liability.”).

         If the court is satisfied that liability has been established, it must then determine the appropriate amount of damages. Ryan, 253 F.3d at 780-81. Allegations “relating to the amount of damages” are not deemed admitted based on a defendant's failure to respond to a suit. Fed R. Civ. P. 8(b)(6); see Ryan, 253 F.3d at 780 (“‘[D]efault is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover'”) (citation omitted); Monge, 751 Supp. 2d at 794; Trs. of the Elec. Welfare Trust Fund v. MH Passa Elec. Contracting, Inc., DKC-08-2805, 2009 WL 2982951, at *1 (D. Md. Sept. 14, 2009) (“Upon default, the well-pled allegations in a complaint as to liability are taken as true, although the allegations as to damages are not.”); Pentech Fin. Servs., Inc. v. Old Dominion Saw Works, Inc., No. 6:09cv00004, 2009 WL 1872535, at *1 (W.D. Va. June 30, 2009) (“Upon default judgment, Plaintiff's factual allegations are accepted as true for all purposes excluding determination of damages.”).

         Rather, the court must make an independent determination regarding allegations as to damages. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999). In so doing, the court may conduct an evidentiary hearing. Fed.R.Civ.P. 55(b)(2). However, the court may also make a determination of damages without a hearing, so long as there is an adequate evidentiary basis in the record to support an award of the requested damages. See Adkins v. Teseo, 180 F.Supp.2d 15, 17 (D.D.C. 2001) (“[T]he court may rely on detailed affidavits or documentary evidence to determine the appropriate sum.”); see also Trustees of the Nat'l Asbestos Workers Pension Fund v. Ideal Insulation, Inc., ELH-11-832, 2011 WL 5151067, at *4 (D. Md. Oct. 27, 2011) (determining that, in a case of default judgment against an employer, “the Court may award damages without a hearing if the record supports the damages requested”); Monge, 751 F.Supp.2d at 795 (same); Pentech Fin. Servs., Inc., 2009 WL 1872535, at *2 (concluding that there was “no need to convene a formal evidentiary hearing on the issue of damages” after default judgment because plaintiff submitted affidavits and records establishing the amount of damages).

         Notably, under Fed.R.Civ.P. 54(c), “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” See In re Genesys Data Techs, Inc., 204 F.3d 124, 132 (4th Cir. 2000) (“When a Complaint demands a specific amount of damages, courts have generally held that a default judgment cannot award additional damages.”). This is meant to ...

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