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J & J Sports Productions, Inc. v. Perr's Pub, Inc.

United States District Court, E.D. Michigan, Northern Division

October 26, 2017

J & J SPORTS PRODUCTIONS, INCORPORATED, Plaintiff,
v.
PERR'S PUB, INC., and MICHAEL J. PERRY, Defendants.

          OPINION AND ORDER DISMISSING ORDER TO SHOW CAUSE AND GRANTING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR DEFAULT JUDGMENT

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On June 14, 2017, Plaintiff J & J Sports Productions, Inc., filed a complaint against Defendants Perr's Pub, Inc., and Michael J. Perry alleging that the Defendants illegally aired the 2015 Mayweather-Pacquiao boxing match without entering into a licensing agreement with Plaintiff. ECF No. 1. Defendants were timely served, but did not file a response within the deadline provided by the Federal Rules of Civil Procedure. ECF Nos. 5, 6. Several weeks after the deadline to answer passed, the Court directed the Plaintiff to show cause why this case should not be dismissed for failure to prosecute. ECF No. 7. In response, Plaintiff indicated that the parties had been unsuccessfully pursuing settlement and separately requested Clerk's Entry of Default. ECF Nos. 8, 9. The Clerk of Court entered default, but Plaintiff did not move for entry of default judgment. On August 29, 2017, the Court dismissed the order to show cause and directed Plaintiff to either file a motion seeking entry of default judgment or explain why no motion was forthcoming on or before September 22, 2017. ECF No. 11. No response was received by that deadline.

         On September 11, 2017, Defendants (proceeding pro se) filed an answer to the complaint wherein they contend that they showed the fight with permission. ECF No. 12. On September 19, 2017, Defendants filed a supplementary answer requesting that the Court dismiss the suit with prejudice. ECF No. 13. Finally, on September 29, 2017, Plaintiff filed a motion for default judgment against Perr's Pub and for judgment on the pleadings against Michael J. Perry. ECF No. 15. Plaintiff further filed a response to the Court's prior order to show cause. ECF No. 16. Plaintiff indicated that Defendants had previously been represented by counsel and that Plaintiff had delayed requesting default judgment while settlement negotiations proceeded. Eventually, negotiations broke down and Defendants' counsel withdrew from representing Defendants. On October 10, 2017, Michael Perry filed a pro se response to the show cause order reiterating his belief that he has not engaged in any illegal action and requesting “a reasonable amount of time” to retain another attorney. ECF No. 17.

         A hearing on Plaintiff's motion for judgment on the pleadings and for default judgment was held on October 24, 2017. For the following reasons, the order to show cause will be dismissed and Plaintiff's motion for judgment will be granted.

         I.

         The well-pleaded factual allegations in Plaintiff's complaint (along with the few allegations that Defendant Michael Perry has untimely contested) will be summarized. Plaintiff J & J Sports Productions, Inc., is a California Corporation which “paid for and was thereafter granted the exclusive nationwide television distribution (closed-circuit) rights to the ‘Fight of the Century' Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program.” Compl. at 3-4. Perr's Pub is a Michigan corporation, owned and operated by Michael J. Perry. Id. at 3. J & J Sports alleges that it “entered into . . . sublicensing agreements with various commercial entities throughout North America, including entities within the State of Michigan, by which it granted these entities limited sublicensing rights[, ] specifically the rights to publically exhibit the Program to the patrons within their respective establishments . . . on a pay-per-view basis.” Id. at 4-5.

         J & J Sports further alleges that

on May 2, 2015, Defendant(s) Michael J Perry was/were the owner(s) . . . and/or an individual(s) with dominion, control, oversight and management of the commercial establishment Perr's Pub, Inc., . . . and was either aware of the unauthorized display of the program, . . . and tacitly or explicitly approved same or was physically present at the time the program was displayed, and in either event had actual or constructive knowledge of the display of the program in the commercial establishment.

Id. at 4.

         Additionally, “[s]aid unauthorized interception . . . by each of the Defendants was done willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain.” Id. at 5.

         In his pro se response, Michael J. Perry states: Were [sic] a small bar who did show the Mayweather & Pacquiao fight. We had no idea there was even a J&J Sports Production in existence. If that was the case we would have never showed the fight.” Supp. Ans. at 1, ECF No. 13. Perry separately explains: “We paid Dish to show the fight [illegible] Mayweather & Pacquaio & now were [sic] being sued by J&J Sports Productions Inc.” Ans. at 1, ECF No. 12. Perry attaches a copy of the complaint with several handwritten responses. Specifically, Perry admits that venue is proper, admits that Perr's Pub is a Michigan corporation located in Saginaw Michigan, denies that the complaint lists his correct address, and denies that he was aware of the unauthorized display of the program, tacitly or explicitly approved its display, or had actual or constructive knowledge that the program was displayed in a commercial establishment. Id. at 2-4.

         J & J Sports lists three claims for relief in its complaint. First, J & J Sports alleges that Defendants violated 47 U.S.C. § 605 (The Communications Act of 1934), which prohibits the unauthorized publication or use of communications. Compl. at 4-6. Next, J & J Sports alleges that Defendants violated 47 U.S.C. § 553, which prohibits the unauthorized reception of cable service. Id. at 6-8. Finally, J & J Sports alleges that Defendants committed common law conversion. Id. at 8. J & J Sports requests $110, 000 for violation of Count One, $60, 000 for violation of Count Two, and compensatory damages, exemplary damages, punitive damages, and treble damages pursuant to Count Three. Id. at 9-10. Plaintiff likewise requests a reasonable attorney fees award pursuant to each Count.

         II.

         A judgment by default may be entered against a defendant who has not pleaded or otherwise defended against an action. Fed.R.Civ.P. 55(b). Before a default judgment may enter, a party first must obtain a default. Fed.R.Civ.P. 55(a). Once a default is entered, the defendants are considered to have admitted the well pleaded allegations in the complaint, including jurisdiction. Ford Motor Company v. Cross, 441 F.Supp.2d 837, 845 (E. D. Mich. 2006) (citing Visioneering Construction v. U.S. Fidelity and Guaranty, 661 F.2d 119, 124 (6th Cir. 1981)). Here, Plaintiff properly obtained a default against Defendants, and the clerk certified that a notice of default was served on Defendants. ECF Nos. 8, 10.

         After a party secures the entry of default, the party may apply for a default judgment. Fed.R.Civ.P. 55(b). In reviewing an application for a default judgment, “[t]he court may conduct hearings or make referrals … when, to enter or effectuate 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). While the well-pleaded factual allegations in the complaint are taken as true when a defendant is in default, damages are not. Ford Motor Company, 441 F.Supp.2d at 848 (citing Thomson v. Wooster, 114 U.S. 104 (1885)). The Court must determine the propriety and amount of the default judgment where the damages sought are not for a sum certain. See Fed. R. Civ. P. 55(b). “Ordinarily, the District Court must hold an evidentiary proceeding in which the defendant has the opportunity to contest the amount [of damages].” Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995) (internal ...


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