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J & J Sports Productions, Inc. v. Velez

United States District Court, D. Massachusetts

October 3, 2018

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
MONICA VELEZ, et al. Defendants.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR ASSESSMENT OF DAMAGES AND ENTRY OF DEFAULT JUDGMENT (DKT. NO. 17)

          KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE

         I. Introduction

         This 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.

         II. Factual and Procedural background

         In view 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, 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.

         No. 1, 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).

         Mr. 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 pay-per-view broadcast;
• 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 residential rate;
• 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 establishment; or
• 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 the ...


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