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J & J Sports Productions, Inc. v. B O B Lounge, LLC

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

January 5, 2018

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
B O B LOUNGE, LLC, d/b/a B.O.B.'Z LOUNGE, and SHARON O'NEAL, Defendants.

          David R. Grand United States Magistrate Judge

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND AWARDING DAMAGES

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE.

         In this action, Plaintiff J & J Sports Productions, Inc. alleges that Defendants B O B Lounge, LLC (“B O B Lounge”) and Sharon O'Neal violated federal law by illegally broadcasting a boxing match on May 2, 2015. Defendants have failed to defend or otherwise appear in this action. Plaintiff now moves for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) and seeks statutory damages in addition to attorney's fees and costs against the Defendants jointly and severally.

         A hearing on this matter was held on December 6, 2017. For the reasons stated on the record and those set forth below, the Court will grant Plaintiffs motion for default judgment and award damages, fees, and costs in the amount of $7, 689.75.

         I. BACKGROUND

         Plaintiff filed its Complaint on March 10, 2017, and then filed an Amended Complaint three days later in order to correct a filing error. (ECF No. 1, Compl.; ECF No. 2, Am. Compl.) The lawsuit was brought against B O B Lounge (d/b/a B.O.B.'z Lounge), a commercial establishment in Detroit, Michigan, as well as Sharon O'Neal, whom Plaintiff alleges on information and belief to be the owner, operator, or in some other fashion the person in charge of or possessing control over B O B Lounge. (Am. Compl. ¶¶ 8-11.)

         In a 2015 Opinion and Order issued in a very similar case filed by the same Plaintiff, this Court described Plaintiff's business model as follows:

Plaintiff, in an attempt to combat piracy of its programs, hires investigative agencies who retain auditors who visit various commercial locations that have no record of paying the required fee. For a “commercial fee”, a commercial establishment can receive an unscrambled signal enabling the business to view the program either through Plaintiff or an authorized distributor. The fee is determined by the number a “Rate Card” that ties the fee to the seating capacity of the business.

J & J Sports Prods., Inc. v. Matti, No. 14-12981, 2015 WL 900478, at *1 (E.D. Mich. Mar. 3, 2015) (Borman, J.).

         In this case, Plaintiff alleges that it paid for and was contractually granted the exclusive nationwide television distribution rights to the Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight (also known as "The Fight of the Century" but referred to herein as the “Program”), including all under-card bouts and fight commentary in the television broadcast of the event. (Am. Compl. ¶¶ 11, 13.) Plaintiff claims that Defendants illegally broadcast the program on May 2, 2015 in violation of the Communications Act of 1934, as amended, 47 U.S.C. § 605, et seq., and the Cable Television Consumer Protection and Competition Act of 1992, as amended, 47 U.S.C. § 553, et seq. (Am. Compl. ¶¶ 11-26; see also ECF No. 10, Pl.'s Mot. Ex. 5, Affidavit of Andre Wallace.) Plaintiff also alleges that the broadcast constituted conversion under Michigan common law. (Am. Compl. ¶¶ 27-30.) Andre Wallace, an investigator hired by Plaintiff, avers in a signed affidavit dated September 23, 2015 that there were approximately 85 patrons in the establishment on the date of the broadcast. (Wallace Aff. ¶ 3.)

         In the Motion for Default Judgment, Plaintiff asserts that it served both Defendants with the Summons and Amended Complaint at the same address on April 5, 2017. (Pl.'s Mot. at 2, Pg ID 31; Ex. 2, Return of Service.) After Defendants failed to answer the Amended Complaint or otherwise plead or defend in the action, Plaintiff filed a Request for a Clerk's Entry of Default on June 6, 2017, and it was granted the same day. (ECF Nos. 8, 9.)

         A hearing on Plaintiff's Motion for Default Judgment, as well as an analogous motion for default judgment in a separate action involving the same parties and similar facts, see J & J Sports Productions v. B O B LOUNGE, LLC, et al., No. 17-11350, was scheduled to be held on October 26, 2017. The hearing was postponed after Plaintiff's counsel represented that the parties were likely to settle the matter out of court, but Plaintiffs counsel informed the Court several weeks later that attempts to finalize the settlement had been unsuccessful. The Court held a rescheduled hearing on the two motions for default judgment on December 6, 2017. Defendants did not attend the hearing.

         II. LEGAL STANDARDS

         Pursuant to Federal Rule of Civil Procedure 55(b), a judgment by default may be entered against a defendant who has failed to plead or otherwise defend against an action. In order to obtain judgment by default, the proponent must first request the clerk's entry of default pursuant to Rule 55(a). See Hanner v. City of Dearborn Heights, No. 07-15251, 2008 WL 2744860, at *1 (E.D. Mich. July 14, 2008). Once a default has been entered by the clerk's office, all of a plaintiffs well-pleaded allegations, except those relating to damages, are deemed admitted. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995); see also Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006) (citation omitted).

         Once a default is obtained, the party may then file for a default judgment by the clerk or by the court. Fed.R.Civ.P. 55(b). If the plaintiffs well-pleaded allegations are sufficient to support a finding of liability as to the defendant on the asserted claims, then the Court should enter a judgment in favor of the plaintiff. See Cross, 441 F.Supp.2d at 848. Although Rule 55(b)(2) does not provide a standard to determine when a party is entitled to a judgment by default, the case law establishes that the court must exercise “sound judicial discretion” when determining whether to enter the judgment. Wright & Miller, 10A Federal Practice & Procedure, § 2685 (3d ed. 1998) (collecting cases). After a court determines that a default judgment should be entered, it will determine the amount and character of the recovery awarded. See Id. § 2688 (collecting cases).

         III. DISCUSSION

         1. ...


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