United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR ASSESSMENT OF DAMAGES AND ENTRY OF DEFAULT JUDGMENT (DKT.
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 an
assessment of damages and entry of default judgment (Dkt. No.
17). The motion was referred to the undersigned by District
Judge Mark G. Mastroianni for a report and recommendation
(Dkt. No. 26). See 28 U.S.C. § 636(b)(1)(B).
The Court held a hearing on the motion on August 8, 2018
(Dkt. No. 29). The defendants, Monica Velez and Los Jibaritos
Social Club, LLC (“Defendants”) did not appear.
Plaintiff, having demonstrated that Defendants failed to
appear or otherwise defend this suit, 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 $6, 452.46.
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.
Plaintiff's attorney (Dkt. Nos. 19-21). 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.
Compl. ¶¶ 6, 10). 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 (Compl. ¶ 12).
Defendants unlawfully intercepted and showed the Fight at
their bar and restaurant, located at 635-637 South Street,
Holyoke. Mr. Aranibar, an investigator hired by Plaintiff,
observed this shortly after 9:30 p.m. on June 7, 2014 (Dkt.
No. 20 at 1). Mr. Aranibar noted that the Fight was being
shown on two 50-inch flat screen televisions, one located
adjacent to a dance floor, and one near a pool table. Both
television sets were showing the fight; both had the sound
turned off. 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 12, 15, and 13 patrons
(id. at 3). The licensing fee that Defendants should
have paid to show the Fight was $800 (Dkt. No. 19 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. 19 at 3-4). Neither the complaint nor any of the
affidavits purports to state the means by which Defendants in