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J & J Sports Productions, Inc. v. Sousa

United States District Court, D. Massachusetts

December 11, 2017

J & J SPORTS PRODUCTION, INC., Plaintiff,
v.
LEONILDO SOUSA, dba THE RAW MARTINI BAR. Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR ASSESSMENT OF DAMAGES AND ENTRY OF DEFAULT JUDGMENT (DKT. NO. 10)

          DONALD L. CABELL, U.S.M.J.

         J & J Sports Production, Inc. (“the plaintiff”), a closed circuit distributor of sports and entertainment programming, has brought suit against the defendant Leonildo Sousa, individually and as the owner of the Raw Martini Bar in Fall River, Massachusetts (“the establishment”), for unlawfully exhibiting one of the plaintiff's programs. Although the defendant was properly served with the complaint, he has failed to answer or file any responsive pleadings. The plaintiff now moves for default judgment pursuant to Fed.R.Civ.P. 55. (Dkt. No. 10). For the following reasons, I recommend that the motion for default judgment be granted and that the plaintiff be awarded damages in the amount of $5, 036.15.

         I. RELEVANT BACKGROUND

         The following facts are taken from the plaintiff's pleadings, including the complaint and supporting affidavits, and are assumed to be true in light of the defendant's default. See e.g., In re The Home Rests., Inc., 285 F.3d 111, 114 (1st Cir. 2002) (a defaulting party is “taken to have conceded the truth of the factual allegations in the complaint as establishing the grounds for liability”).

         The plaintiff is a closed circuit distributor of sports and entertainment programs and had exclusive nationwide commercial distribution rights to a boxing match that was telecast on April 12, 2014, the “Manny Pacquiao v. Timothy Bradly, II WBO Welterweight Championship Fight Program” (“the program”). (Compl. ¶ 9). As a result of its exclusive distribution rights, the plaintiff had the option of sublicensing the program to various commercial ventures for a set sublicensing fee. (Id. at ¶ 10). A commercial venture with such a sublicense could then publicly display the program in its establishment. (Id.). In this case, the plaintiff charged a sublicensing fee of $2, 200.00 for the program. (Dkt. No. 11).

         According to a sworn affidavit submitted by the plaintiff's investigator, Leonara DaPonte (“DaPonte”), she went to the establishment on the evening of April 12, 2014. DaPonte did not pay a cover charge to enter the establishment. Upon arriving inside, DaPonte observed two flat screen televisions, both of which displayed the program. DaPonte estimates the establishment can hold a maximum of approximately 50 people. Over the course of the evening she made three separate head-counts of the patrons in the establishment and counted twenty-one (21), twenty (20), and twenty (20) patrons, respectively. (DaPonte Affidavit, Dkt. No. 13).

         The plaintiff filed a complaint against the defendant on March 31, 2017. (Dkt. No. 1). The defendant was properly served on April 14, 2017 (Dkt. No. 6), but failed to respond to the complaint or file a responsive pleading. The Clerk of Court entered a notice of default on July 6, 2017. (Dkt. No. 9). The plaintiff now moves for default judgment and for an assessment of damages. (Dkt. No. 10).

         II. LEGAL STANDARD

         Fed. R. Civ. P. 55 prescribes a two-step process for obtaining default judgment. First, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Thereafter, “the party must apply to the court for a default judgment.” Fed.R.Civ.P. 55(b)(2). Once a default judgment is entered, “the trial judge . . . has considerable latitude in determining the amount of damages.” Jones v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993) (emphasis in original).

         III. ANALYSIS

         A. Applicability of Sections 553 and 605

         The plaintiff contends that it is entitled to recover statutory and enhanced damages under the Cable Communications Policy Act, 47 U.S.C. § 553, and the Communications Act, 47 U.S.C. § 605. Specifically, the plaintiff seeks $10, 000 in statutory damages under sections 553 and 605, $50, 000 in enhanced damages for each willful violation under section 553, and $100, 000 in enhanced damages for each willful violation under section 605. The plaintiff's requests require that the court first determine whether section 553 or section 605 applies to the facts of this case. While the statutes are similar in nature and purpose, “[o]ne cannot violate both with a single act of interception.” Joe Hand Promotions, Inc. v. Rajan, No. 10-40029-TSH, 2011 WL 3295424, at *2 (D. Mass. July 28, 2011).

         Section 553 provides that “[n]o person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. § 553(a)(1). As the plaintiff's investigator observed two flat screen televisions in the establishment displaying the program, there would appear to be no dispute that the defendant's conduct falls within the purview of section 553.

         Whether section 605 applies here, however, is not as clear. Section 605 provides that “[n]o person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.” 47 U.S.C. § 605(a). “Section 605 thus prohibits the unauthorized interception or reception of radio communications.” Joe Hand Promotions, Inc. v. Patton, No. 10-40242-FDS, 2011 WL 6002475, at *2 (D. Mass. Nov. 29, 2011) (emphasis in original). The First Circuit has held that based on the plain language of the statute and its regulatory framework, section 605 does not apply to communications transmitted over wire or cable. See Charter Communications Entertainment I, DST v. Burdulis, 460 F.3d 168, 173 (1st Cir. 2006)(“[t]he change in form of transmission of the communication, from an airborne signal to a signal traveling over a cable wire, changes the applicability of [section 605]; when the communication is stolen as it is being transmitted over a cable wire, § 553, not § 605, applies”); see also Patton, 2011 WL 6002475 at *2 (holding that section 605 does not apply where the defendant obtained access to an ...


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