United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DISMISSING ORDER TO SHOW CAUSE AND
GRANTING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS AND FOR
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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 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.
“[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.
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 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.
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.
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 ...