United States District Court, W.D. Texas, El Paso Division
J& J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 14, 2013 The One: Floyd Mayweather, Jr.
Saul Alvarez WBC Middleweight Championship Fight Program, Plaintiff,
MICHAEL PATINO, individually, and d/b/a Rock House Cafe & Gallery, Defendant.
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff J& J Sports Productions,
Inc.'s ("Plaintiff) "Motion for Final Default
Judgment & Brief in Support" (ECF No. 9)
("Motion") filed in the above-captioned action on
March 10, 2017. Plaintiff brought this lawsuit alleging that
Defendant Michael Patino, individually, and d/b/a Rock House
Cafe & Gallery, ("Defendant") violated the
Federal Communications Act of 1934. Although Defendant was
served with a summons in October 2016, to date, he has not
answered Plaintiffs Complaint or otherwise appeared in this
case. By its Motion, Plaintiff asks the Court to enter a
default judgment against Defendant and award damages, costs,
and attorneys' fees to Plaintiff. For the reasons that
follow, the Court GRANTS IN PART Plaintiffs
is in the business of marketing and licensing commercial
exhibitions of pay-per-view closed-circuit prizefight
events. In Texas, it has the exclusive authority
to sublicense the telecast of the September 14, 2013
"The One": Floyd Mayweather, Jr. v. Saul
Alvarez WBC Middleweight Championship Fight Program (the
"Event") at closed-circuit commercial locations
such as restaurants, bars, and lounges. On September 14,
2013, the transmission of the Event originated via satellite
and was electronically coded or
"scrambled."Broadcasts of the Event could only be
exhibited in a commercial establishment if the establishment
had entered into a contractual relationship with Plaintiff,
thereby, obtained from Plaintiff the electronic decoding
equipment and the satellite coordinates necessary to receive
September 14, 2013, Defendant Michael Patino owned, operated,
and supervised Rock House Cafe & Gallery (the
"Establishment"), an El Paso, Texas commercial
establishment that sells food and beverages (though not
alcoholic drinks) to its patrons. On that day, alleges
Plaintiff, Defendant exhibited a telecast of the Event at his
Establishment without Plaintiffs authorization; Defendant
never contracted with Plaintiff or paid Plaintiff the
requisite licensing fee.
September 14, 2016, Plaintiff filed the instant lawsuit
against Defendant, charging him with illegally intercepting,
receiving, and transmitting or publishing Plaintiffs telecast
in violation of 47 U.S.C. § 605, commonly known as the
Federal Communications Act of 1934.Id. at 4.
Thereafter, on October 13, 2016, Plaintiff properly served
Defendant with summons, thereby causing his answer to be due
on November 3, 2016. To date, Defendant has not answered to
Plaintiffs Complaint in accordance with Federal Rule of Civil
Procedure 12or otherwise appeared in this case. On
March 10, 2017, Plaintiff filed its "Request for Entry
of Default" (ECF No. 8), and the Clerk of the Court
entered default against Defendant pursuant to Federal Rule of
Civil Procedure 55(a)(1). On the same day, Plaintiff
filed the instant Motion.
Rule of Civil Procedure 55 governs entry of default judgment.
Initially, the clerk of the court must enter default against
a defendant, if the defendant fails to plead or otherwise
defend and the plaintiff shows that failure by affidavit or
otherwise. See Fed. R. Civ. P. 55(a). Thereafter,
the plaintiff may move the court for a default judgment.
See Fed. R. Civ. P. 55(b); see also N.Y.Life
Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996)
("After defendant's default has been entered,
plaintiff may apply for a judgment based on such default.
This is a default judgment" (emphasis added)).
The court may grant the motion only if there is "a
sufficient basis in the pleading for the [default]
judgment." Nishimatsu Constr. Co. v. Hous. Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). In addition
to the complaint, the court, may consider evidence that
"simply add[s] factual details [and thereby] fleshe[s]
out [the plaintiffs] claim" or "serve[s] as further
proof of the plaintiffs allegations. Woolen v. McDonald
Trans. Assocs., Inc., 788 F.3d 490, 500 (5th Cir. 2015).
assessing whether the complaint contains a sufficient basis
for a default judgment, the court applies the standard
governing the sufficiency of a complaint under Federal Rule
of Civil Procedure 8. Wooten, 788 F.3d at 498 &
n.3 ("Although most cases addressing Rule 8 arise in the
context of a Rule 12(b)(6) motion to dismiss, ... we decline
to import Rule 12 standards into the default-judgment
context."). Rule 8 requires a pleading to contain
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). The factual allegations in the complaint need only
"be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact)."
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Nishimatsu Constr. Co., 515 F.2d at 1206
("A default judgment [must be] supported by well-pleaded
allegations, assumed to be true."). "[D]etailed
factual allegations" are not required, but the complaint
must present "more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
a default judgment, which is a judgment on the merits,
conclusively establishes the defendant's liability, it
does not establish the amount of damages. United States
ex rel. M-CO Constr., Inc. v. Shipco Gen., Inc., 814
F.2d 1011, 1014 (5th Cir. 1987). The complaint's factual
allegations regarding damages, even if well-pleaded, must
still be proven. See Id. Damages should not be
awarded absent "a hearing or a demonstration by detailed
affidavits establishing the necessary facts." United
Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir.
1979). Rule 55(b)(2)(B) "explicitly grants the district
court wide latitude" on whether to hold or to
"forego an evidentiary hearing" on the issue of
damages. James v. Frame, 6 F.3d 307, 310 (5th Cir.
1993); see also Fed. R. Civ. P. 55(b)(2)(B). A
hearing is not necessary if "the amount claimed is a
liquidated sum or one capable of mathematical calculation,
"-i.e., "the amount is easily
computable." Freeman, 605 F.2d at 857;
Richardson v. Salvation Army, S. Territory, USA, 161
F.3d 7, 7, 1998 WL 723820, at *1 (5th Cir. 1998) (per
The Federal Communication Act
Federal Communications Act (the FCA or Act) prohibits any
unauthorized person from "intercept[ing] any radio
communication and divulg[ing] or publish[ing] the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person." 47 U.S.C.
§ 605(a). The Act creates a private right of action for
"[a]ny person aggrieved by any violation of [47 U.S.C.
§ 605(a)]." Id. § 605(e)(3)(A). To
prevail on a claim for violations of § 605(a), a
plaintiff must prove that a defendant "intercepted or
otherwise unlawfully appropriated" the plaintiffs
communication. DIRECTV Inc. v. Robson, 420 F.3d 532,
537 (5th Cir. 2005). The remedies and penalties for the
violations include: actual or statutory damages, at the
plaintiffs election; punitive damages; and costs, including
attorneys' fees. 47 U.S.C. § 605(e).
Motion, Plaintiff requests the Court to enter a default
judgment in its favor and against Defendant. Plaintiff seeks
statutory compensatory damages under 47 U.S.C. §
605(e)(3)(C)(i)(II), see Mot. ¶¶ 8, 14;
statutory punitive damages under 47 U.S.C. §
605(e)(3)(C)(ii), id. ¶¶ 15, 21; and
attorneys' fees and costs under 47 U.S.C. §
605(e)(3)(B)(iii), id. ¶¶ 22, 23(3)-(4).
Plaintiff also seeks post-judgment interest at the highest
lawful rate. Id. ¶ 23(4). In support of its
Motion, Plaintiff submitted three affidavits: (1) an
affidavit by Luis Padilla, Plaintiffs auditor, who visited
the Establishment on the night of the Event, see
Padilla Aff., supra; (2) an affidavit by Thomas P.
Riley, an attorney who was retained by Plaintiff to
investigate Defendant's activities in connection with the
Event, see Riley Aff., supra; and (3) an
affidavit by David M. Diaz, an attorney who represents
Plaintiff in this case, Diaz Aff., Mot., Ex. B, ECF No.9-1.
initial matter, a "defendant, by his default, admits the
plaintiffs well-pleaded allegations of fact, " but not
"conclusions of law." Nishimatsu Constr.
Co., 515 F.2d at 1206. Accordingly, in ruling on this
Motion, where applicable, the Court will rely on well-pleaded
facts in Plaintiff's Complaint, accepting them as
admitted, and facts stated in the ...