United States District Court, S.D. Texas, Houston Division
J&J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 13, 2014 "Mayhem" Floyd Mayweather, Jr. Marcos Rene Maidana Fight Program, Plaintiff,
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.
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
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.
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 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).
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).
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.")
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).
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).
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 ...