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 Joe Hand
Promotions, Inc. against Defendants Maria Aguilar and Sofia
& Gicelle, Inc., doing business as Fast Eddie's
Restaurant Billiard & Sports Bar. (ECF No. 19.) On August
9, 2019, 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. 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
AND PROCEDURAL HISTORY
February 15, 2019, Plaintiff commenced this action against
Defendants, 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), and the Copyright Act,
17 U.S.C. § 501. (ECF No. 1.) The Complaint states that
Plaintiff held “the exclusive rights of distribution
and public performance as to commercial establishments for
the Mayweather vs McGregor Match, including all undercard
marches and the entire television Broadcast, ” which
was broadcast on August 26, 2017 (the “Program”).
(Id. ¶ 6.) In addition, Plaintiff was the
copyright owner of the Program. (Id. ¶ 41.)
Plaintiff entered into agreements with various commercial
establishments that permitted the businesses to exhibit the
Program for their patrons. (Id. ¶ 23.)
Defendants did not enter into such an agreement with
Plaintiff to exhibit the Program at their business, Fast
Eddie's Restaurant Billiard & Sport Bar (the
“Establishment”). (Id. ¶ 14.) Without
Plaintiff's authorization and “with full knowledge
that the [Program] was not to be received and exhibited by
entities unauthorized to do so, ” Defendants displayed
the Program at the Establishment “willfully and for
purposes of direct or indirect commercial advantage or
private financial gain.” (Id. ¶¶
26-28.) Service of process was effected on Defendants. (ECF
Nos. 9 & 10.) Defendants did not file an answer or
responsive pleading within the requisite time period.
Plaintiff moved for entry of default on May 30, 2019. (ECF
No. 13.) The Clerk's Entry of Default as to each of the
Defendants was entered on June 3, 2019. (ECF Nos. 15 &
16.) Thereafter, Plaintiff filed the instant Motion (ECF No.
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 for
Defendants' violation of the Communications Act, 47
U.S.C. § 605 and 47 U.S.C. § 553. As Plaintiff
concedes, however (see ECF No. 19-5 at 9), courts in
this district have previously held that plaintiffs cannot
recover under both statutes 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 held the exclusive rights for the distribution of
the Program at commercial establishments. (ECF No. 1 ¶
6.) Defendants did not obtain Plaintiff's authorization
to broadcast the program at the Establishment. (Id.
¶¶ 26-28.) Defendants unlawfully exhibited the
Program to the patrons at the Establishment. (Id.)
In addition, Plaintiff's investigator observed that the
Establishment was charging a $30 cover charge at the time of
the Program and that there were approximately 60 patrons in
the Establishment. (ECF No. 19-2 at 5-6.) 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).
Count III, Plaintiff claims that Defendants are liable for
copyright infringement. (ECF No. 1 ¶¶ 40-49.)
“To establish copyright infringement liability, a
plaintiff must prove two elements: (1) ownership of the
copyright; and (2) copying of original constituent elements
by the defendant.” Malibu Media, LLC v.
Redacted, No. DKC-15-0750, 2016 WL 3668034, at *2 (D.
Md. July 11, 2016) (citing 17 U.S.C. § 501(a) and
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499
U.S. 340, 361 (1991)). “[T]he Copyright Act does not
require that the infringer know that he is infringing or that
his conduct amount to a willful violation of the copyright
owner's rights.” CoStar Grp., Inc. v. LoopNet,
Inc., 373 F.3d 544, 549 (4th Cir. 2004) (noting that
while copyright infringement is a strict liability tort,
“it nonetheless requires conduct by a person who causes
in some meaningful way an infringement”).
the well-pleaded allegations of the Complaint as true, I find
that Plaintiff has established Defendants' liability for
copyright infringement. Plaintiff owned a valid copyright in
the Program because it held the exclusive right to distribute
and perform the Program in commercial
establishments. (ECF No. 1 ¶ 42.) Defendants did not
“obtain the proper authority or license from
Plaintiff to publicly exhibit” the Program.
(Id. ¶ 43.) In violation of Plaintiff's
rights, Defendants publicly displayed the Program at the
Establishment on August 26, 2017. (Id. ¶ 44.)