United States District Court, S.D. West Virginia, Charleston Division
J & J SPORTS PRODUCTIONS, INC. Plaintiff,
LORETTA GOOD, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is a Request for Default Judgment [ECF No.
12] filed by Plaintiff J & J Sports Productions, Inc. For
the reasons that follow, the Request is
GRANTED. Damages are awarded in amounts set
is a distributor of sports and entertainment programming to
commercial establishments. Plaintiff filed its Complaint
against Defendants Loretta Good, Jessica Good, and
Loretta's Hangout, Inc. (collectively
"Defendants"), complaining of Defendants'
allegedly unauthorized and illegal receipt and exhibition of
"The Fight of the Century" Floyd Mayweather,
Jr. v. Manny Pacquiao Championship Fight Program
("the Program") broadcasted on May 2, 2015. The
Complaint charges Defendants with violations of the Federal
Communications Act of 1934, as amended. 47 U.S.C.
§§ 553, 605.
were served with the Summons and Complaint on July 9, 2018.
To date, Defendants have failed to appear or file a pleading
responsive to Plaintiffs Complaint. The Clerk entered default
against Defendants on August 15, 2018 [ECF No. 11]. Plaintiff
then filed a Request for Default Judgment pursuant to Federal
Rule of Civil Procedure 55(b)(2).
judgment is available "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). Under Rule 55, which governs default
judgments, "trial judges are vested with discretion,
which must be liberally exercised, in entering [default]
judgments and in providing relief therefrom." United
States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). A
defendant's failure to respond constitutes an admission
of the well-pleaded factual allegations in the complaint,
except as related to damages. Ryan v. Homecomings Fin.
Network, 253 F.3d 778, 780 (4th Cir. 2001). The court
must make an independent determination of damages where the
amount of the plaintiffs claim is uncertain. Fed.R.Civ.P.
55(b). Plaintiff has filed a declaration and two affidavits
in support of its Request, setting forth the amount due and
stating that Defendants are neither infants, incompetents,
nor members of the United States Military. Based on its
review of Plaintiffs Request for Default Judgment,
affidavits, and declaration, the court finds that a hearing
on this matter is unnecessary.
has alleged violations of both 47 U.S.C. § 553 and 47
U.S.C. § 605. However, when a defendant is liable under
both § 553 and § 605, an injured plaintiff can only
recover damages under one section. See Joe Hand
Promotions, Inc. v. Coaches Sports Bar, 812 F.Supp.2d
702, 704 (E.D. N.C. 2011). Here, Plaintiff elects to pursue
damages under only § 605. The court will consider
whether Plaintiff has pleaded facts giving rise to liability
under § 605 before resolving the question of damages.
605 provides that "[n]o person not being authorized by
the sender shall intercept any radio communication and
divulge or publish the existence, contents, substance,
purport, effect, or meaning of such intercepted communication
to any person . . . ." 47 U.S.C. § 605(a). The
statute continues: "Any person aggrieved by any
violation of subsection (a) or paragraph (4) of this
subsection may bring a civil action in a United States
district court." § 605(e)(3). The "intercepted
communications" referenced in the statute include
satellite transmissions. See § 605(d)(6)
(defining "any person aggrieved" as a person who
maintains "proprietary rights in the intercepted
communication by wire or radio, including wholesale or retail
distributors of satellite cable programming"); see
also Nat'l Satellite Sports, Inc. v. Eliadis, Inc.,
253 F.3d 900, 914 (6th Cir. 2001) (concluding after
discussion of the relevant legislative history that
"Congress intended to bring cable and satellite
communications under the protection of [the Communications]
has alleged facts that, when accepted as true, support
liability under § 605. Plaintiff alleges, inter aha,
that it entered into an agreement with the promoter of the
Program, which provided Plaintiff with the exclusive right to
license the exhibition of the Program to commercial
establishments. Compl. ¶ 19. Plaintiff alleges that
Defendants Loretta Good and Jessica Good are owners or
operators of Defendant Loretta's Hangout, Inc.
("Loretta's Hangout"), a commercial
establishment located in South Charleston, West Virginia.
Id. ¶¶ 6-12, 17. Plaintiff alleges further
that on May 2, 2015, without authorization, Defendants
intercepted, received, published, and broadcasted the
satellite transmission of the Program to patrons, with
"full knowledge" that the Program was not to be
intercepted, received, published, or displayed. Id.
provides the affidavit of its auditor, who was present at
Loretta's Hangout on May 2, 2015 and who testifies that
he observed Defendants airing the Program on two televisions.
Aff. of Jonathon Vandale [ECF No. 12-2]. The auditor also
testifies that fifteen persons were present inside
Loretta's Hangout at the time the program was
broadcasted. Id. Plaintiff adds that there are
several illegal methods of accessing the Program, though it
is unclear which method Defendants employed. Aff. of Joseph
Gagliardi, President, at ...