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J&J Sports Productions, Inc. v. TVD Ventures, LLC

United States District Court, S.D. Texas, Houston Division

April 11, 2018

J&J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 13, 2014 "Mayhem" Floyd Mayweather, Jr. Marcos Rene Maidana Fight Program, Plaintiff,
v.
TVD VENTURES, LLC, individually and d/b/a CLUB INDIGO a/k/a INDIGO a/k/a INDIGO MIDTOWN LOUNGE; and TRENTON DAVIS, individually and d/b/a CLUB INDIGO a/k/a INDIGO a/k/a INDIGO MIDTOWN LOUNGE, Defendants.

          MEMORANDUM AND RECOMMENDATION

          FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.

         Pending and referred by the District Judge is Plaintiffs Motion for Final Default Judgment (Document No. 13). Having considered the motion, the Clerk's prior entry of Default against both Defendants (Document No. 14), Plaintiffs evidentiary submissions, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Plaintiffs Motion for Final Default Judgment (Document No. 13) be GRANTED.

         Plaintiff J&J Sports Productions, Inc. filed suit against Defendants TVD Ventures, LLC, individually and d/b/a Club Indigo a/k/a Indigo a/k/a Indigo Midtown Lounge, and Trenton Davis. individually and d/b/a Club Indigo a/k/a Indigo a/k/a Indigo Midtown Lounge, alleging that Defendants illegally intercepted and showed the closed circuit telecast of the September 13, 2014 "Mayhem" Floyd Mayweather, Jr. v. Marcos Rene Maidana II WBC World Lightweight Championship Fight, including undercard and preliminary bouts (hereafter referred to as "the Event") at Club Indigo a/k/a Indigo a/k/a Indigo Midtown Lounge, located at 2117 Chenevert Street, Suite N, Houston, Texas 77003. Plaintiff further alleges that it is the "license company authorized to sub-license [the Event] at closed-circuit locations such as theaters, arenas, bars, clubs, lounges, restaurants and the like throughout Texas, " and that Defendants showed the Event without Plaintiffs authorization and without paying the required licensing fee. Both Defendants were served, but neither filed an Answer or other responsive pleading. On February 20, 2018, upon Plaintiffs motion, the Clerk entered a default against both Defendants (Document No. 14). Plaintiff now moves for a Final Default Judgment, seeking statutory damages under 47 U.S.C. § 605(e) in the amount of $10, 000, additional damages in the amount of $50, 000, and attorneys' fees.

         Default Standard(s)

         Fed. R. Civ. P. 55 sets forth the rules and procedures for both the entry of default against a party that has failed to plead or otherwise defend, and the subsequent entry of a default judgment. Under Rule 55(a), the entry of a default is required "[w]hen a party against whom judgment for affirmative relief is sought has failed to plead or otherwise defend." FED. R. Civ. P. 55(a). Once a default has been entered, a default judgment may be entered by the Clerk or by the Court.

         By the Clerk. If the plaintiffs claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiffs request, with an affidavit showing the amount due-may enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. FED. R. Civ. P. 55(b)(1).

         By the Court. In all other cases when the amount of the claim is not certain and cannot be made certain, the party must apply to the Court for a default judgment. FED. R. Civ. P. 55(b)(2). A default judgment may be entered against a minor or incompetent person only if represented by a "general guardian, conservator, or other like fiduciary who has appeared." Id. If the party or its representative, against whom default judgment is sought, has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. Id. Under Local Rule 5.5, a motion for default judgment must be served upon the defendant via certified mail, return receipt requested. S.D. Tex. L.R. 5.5. The Court "may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when, to enter or effectuate the judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter." FED. R. Civ. P. 55(b)(2).

         An entry of default judgment is within the court's discretion. Lindsey, et al. v. Prive Corp., etal, 161 F.3d. 886, 893 (5th Cir. 1998). The Fifth Circuit has noted that the Federal Rules of Civil Procedure disfavor default judgments and that they should only be resorted to by courts in extreme situations. Id. ("The Federal Rules of Civil Procedure are designed for the just, speedy, and inexpensive disposition of cases on their merits, not for the termination of litigation by procedural maneuver.")

         Courts should consider the following factors when determining whether to enter default judgment: "whether material issues of fact are at issue, whether the grounds for default are clearly established, whether the default was caused by a good faith mistake or excusable neglect, the harshness of a default judgment, and whether the court would think itself obliged to set aside the default on the defendant's motion." Id. Additionally, a court should consider: if the court has personal jurisdiction over the parties; whether the party against whom default judgment is sought was properly and timely served; if the party is a minor, incompetent, or is serving in the military; and if the party failed to timely appear or otherwise file a responsive pleading pursuant to Fed.R.Civ.P. 12(a)(1)(A). See Lindig Construction & Trucking, Inc. v. Bonelli, 2016 WL 8677200 (W.D. Tex. 2016).

         If the court determines that default judgment should be granted, the court must also determine the appropriate amount of damages. Fed.R.Civ.P. 55(b)(2)(A)-(B) allows the court to conduct a hearing for an accounting or to determine the amount of damages. Generally, a court should not award damages without first conducting a hearing. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979). However, the court has "wide latitude" to determine that damages capable of "mathematical calculation" may be calculated without first holding a hearing. Id. at * 3 (citing James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993)). Moreover, a hearing is not necessary if the court finds that the affidavits and other documentary evidence are sufficient to determine damages. Am. Heritage Life Ins. Co. v. Mitchell, 6:15-cv-95, 2016 WL 3883029, at *3 (E.D. Tex. May 24, 2016). Fed.R.Civ.P. 54(c) provides that a default judgment must not differ from or exceed what is demanded in the pleadings. Meaux Surface Prot., Inc., v. Fogleman, 607 F.3d 161, 172 (5th Cir. 2010).

         Discussion

         Here, the record supports the entry of a Default Judgment against Defendants. The record reveals no material issues of fact and the grounds for default are clearly established. Plaintiff alleges in its Complaint that Defendants violated 47 U.S.C. § 605 as follows:

12. On September 13, 2014, Defendants willfully intercepted and/or received the interstate communication of the Event. In the alternative, Defendants assisted in the receipt of the interstate communication of the Event. Defendants then transmitted, divulged, and published said communication, or assisted in transmitting, divulging, and publishing said communication, to patrons within the Establishment.
13. Defendants misappropriated Plaintiff s licensed exhibition of the Event and infringed upon Plaintiffs exclusive rights while avoiding proper payment to Plaintiff. Defendants' actions were committed willfully and with the express purpose and intent ...

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