United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT AND ASSESSMENT OF DAMAGES (Dkt. No.
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
case is based on a claim of cable television signal piracy.
Before the court is a motion by plaintiff, J & J Sports
Productions, Inc. (“Plaintiff”), for entry of
default judgment and an assessment of damages (Dkt. No. 13).
The motion was referred to the undersigned by District Judge
Mark G. Mastroianni for a report and recommendation (Dkt. No.
20). See 28 U.S.C. § 636(b)(1)(B). The Court
held a hearing on the motion on November 16, 2017 (Dkt. No.
22). The defendants, Carlos Cotto and Cayey Social Club, LLC
(“Defendants”) did not appear. Plaintiff having
demonstrated that Defendants failed to appear or otherwise
defend this suit, Plaintiff is entitled to a default judgment
under Federal Rule of Civil Procedure 55(b)(2). For the
reasons set forth below, the undersigned recommends that a
default judgment enter against Defendants in the amount of
Factual and Procedural background
of Defendants' failure to appear, the facts alleged in
the complaint are taken to be true. See Ortiz-Gonzalez v.
Fonovisa, 277 F.3d 59, 62-63 (1st Cir.
2002). The following facts are drawn from the
complaint, supplemented by information from affidavits filed
on behalf of Plaintiff by Joseph Gagliardi, Plaintiff's
President, Manuel Aranibar, a private investigator present at
Defendants' establishment during the evening of June 7,
2014, and Patricia A. Szumowski, an attorney for Plaintiff
(Dkt. Nos. 15, 16, 17). Plaintiff, a California corporation,
held the nationwide commercial distribution rights to Miguel
Cotto v. Sergio Martinez, Middleweight Championship Fight
Program (“the Fight”), which was telecast
nationally on June 7, 2014 (Dkt. No. 1 at 3). As a commercial
distributor and licensor of sporting events, Plaintiff
invested substantial funds in marketing and advertising and
transmitting the Fight to its customers. Plaintiff entered
into sublicensing rights with various commercial
establishments such as hotels, casinos, bars, taverns, and
racetracks to publicly exhibit the Fight and accompanying
commentary (id.). Defendants unlawfully intercepted
and showed the Fight at their bar and restaurant, located at
273 Main Street, Holyoke, at or around 9:30 p.m. on June 7,
2017 (Dkt. No. 16 at 1). Mr. Aranibar observed that the Fight
was being shown on three 50-inch flat screen televisions
located near the bar, a pool table, and the entrance. All of
the television sets were showing the fight and most of the
patrons in the establishment were watching the Fight on the
establishment's television sets (id.). Mr.
Aranibar performed three headcounts while the Fight was being
shown in the establishment, noting the presence,
respectively, of 23, 21, and 24 patrons (id. at 2).
An advertisement for the Fight was posted to the left of the
entry to the establishment (id. at 1). The licensing
fee that Defendants should have paid to show the Fight was
$800 (Dkt. No. 15 at 3).
Gagliardi's affidavit sets out a nonexclusive list of
means by which Defendants could have intercepted and
broadcast the fight, as follows:
• Use of a “blackbox” “hotbox, ”
or “pancake box, ” which, when installed on a
cable TV line allows for the descrambled reception of a
• Use of a “smartcard, ” “test card,
” or “programming card, ” which, when
installed on a DSS satellite receiver line allows for the
descrambled reception of a pay-per-view broadcast;
• The purposeful representation of a commercial
establishment as a residential property to allow the
fraudulent purchase of pay-per-view programming at a
• Use of an illegal cable drop or splice from an
apartment or home adjacent to the commercial establishment,
which would permit purchase of the broadcast at a residential
rate and diversion of the program to the commercial
• Purchase of illegal unencryption devices or illegal
satellite authorization codes.
(Dkt. No. 15 at 3-4). Neither the complaint nor any of the
affidavits purports to state the means by which Defendants in
the instant case intercepted the Fight.
complaint in this case was filed on June 7, 2017 (Dkt. No.
1). The docket shows that service was effected on each
defendant on September 8, 2017 (Dkt. Nos. 6, 7). Defendants
failed to appear or otherwise defend. On September 11, 2017,
the Clerk entered defaults ...