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J & J Sports Productions, Inc. v. Good

United States District Court, S.D. West Virginia, Charleston Division

December 6, 2018

LORETTA GOOD, et al., Defendants.



         I. Introduction

         Pending 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 forth below.

         II. Background

         Plaintiff 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.

         Defendants 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).

         III. Legal Standard

         Default 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.

         IV. Discussion

         Plaintiff 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.

         a. Liability

         Section 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] Act").

         Plaintiff 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. ¶ 22.

         Plaintiff 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 ...

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