United States District Court, E.D. Pennsylvania
J Sports Productions, Inc., sued Lawrence Smalls and Small
Gnt, Inc., under the Cable Communications Policy Act, 47
U.S.C. §§ 553 and 605, for Defendants' alleged
unlawful interception of J & J's pay-per-view
television programming. Defendants failed to respond to the
Complaint or make an appearance, and the Clerk of Court
entered a default. Now before the Court is J & J's
motion for default judgment. For the reasons given below, the
Court grants the motion and awards damages of $2, 200.
case is the latest round in an ongoing bout between
pay-per-view licensors of professional boxing matches and
commercial establishments intercepting such programming. J
& J is a pay-per-view distributor and licensor. (Compl.
¶ 18.) J & J obtained exclusive nationwide
commercial distribution rights to the September 13, 2014
boxing match between Floyd Mayweather Jr. and Marcos Maidana
II, and then entered into sublicensing agreements with
various bars and restaurants, granting them the right to
display the fight for patrons. (Id. ¶¶ 16-
17.) The cost of a commercial sublicense ranged from $2, 200
to $6, 000 based on the capacity of the establishment.
(Pl.'s Aff. in Supp. of App. for Def. J. Ex. 2 [Rate
Card]). The price for Defendants would have been $2, 200.
(Id.; Pl.'s Am. Br. at 13.)
Smalls is identified as the president, director, and
stockholder of Small Gnt, Inc. (Pl.'s Am. Br. at 5.)
Small Gnt, in turn, owns Level 7 Hookah Bar & Grill.
(Compl. ¶ 14.) J & J claims that although Defendants
did not obtain a sublicense to show the Mayweather-Maidana
match, a private investigator observed the match being shown
at Level 7. (Pl.'s Am. Br. at 3.) Thus, J & J alleges
that Defendants unlawfully intercepted the program. (Compl.
J filed this action against Smalls and Small Gnt on September
12, 2016. Smalls was properly served but failed to appear or
respond to J & J's complaint, and the Clerk of Court
entered a default on April 21, 2017. J & J then moved for
default judgment. J & J's original brief in support
of its motion contained numerous inaccuracies. With the
Court's permission, J & J corrected those errors in
an amended brief, which is now before the Court.
STANDARD OF REVIEW
the Clerk of Court has entered a party's default, a
district court may enter a default judgment against that
party. Fed.R.Civ.P. 55(b)(2). Whether to grant a default
judgment is left to the discretion of the district court; a
party is “not entitled to a default judgment as of
right.” E. Elec. Corp. of N.J. v. Shoemaker Constr.
Co., 657 F.Supp.2d 545, 551 (E.D. Pa. 2009). After the
entry of default, the well-pleaded factual allegations of the
complaint are accepted as true. Id. at 552. However,
“the Court need not accept the moving party's legal
conclusions or factual allegations relating to the amount of
Default Judgment - The Chamberlain Factors
Third Circuit has laid out three factors for courts to
consider when determining whether to grant a default
judgment: “(1) prejudice to the plaintiff if default is
denied, (2) whether the defendant appears to have a litigable
defense, and (3) whether [the] defendant's delay is due
to culpable conduct.” Chamberlain v. Giampapa,
210 F.3d 154, 164 (3d Cir. 2000). Considering the first
factor, J & J will suffer prejudice if the Court does not
grant its motion for default judgment because it “will
have no other way to vindicate [its] claim” against
Defendants. See DISH Network L.L.C. v. Jones, Civ.
A. No. 12-1273, 2012 WL 2885933, at *2 (E.D. Pa. July 16,
2012). As to the second factor, where, as here, the defendant
has failed to respond, “[c]ourts often weigh this
factor in favor of granting default judgment.”
Grove v. Rizzi 1857 S.P.A., Civ. A. No. 04-2053,
2013 WL 943283, at *3 (E.D. Pa. Mar. 12, 2013). Finally, as
to the third factor, courts often consider a defendant's
complete failure to respond-as is the case here-to be
evidence of “bad faith” that weighs in favor of
entry of default judgment. Fed. Ins. Co. v. Secure Cargo
Corp., Civ. A. No. 12-851, 2013 WL 1222653, at *3
(D.N.J. Mar. 25, 2013). Because each of the
Chamberlain factors weighs against the Defendants,
default judgment is appropriate, and the Court will move on
to the substantive analysis of J & J's claim.
Defendants' Liability Under § 553
J brought this action under 47 U.S.C. §§ 553 and
605. Both of these sections “prohibit the unauthorized
interception and exhibition of communications.” J
& J Sports Prods., Inc. v. Cruz, Civ. A. No.
14-2496, 2015 WL 2376051, at *2 (E.D. Pa. May 18, 2015).
However, §§ 605 and 553 apply to different conduct.
TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 207
(3d Cir. 2001). “Section 553 prohibits the unauthorized
interception and transmission of cable communications,
whereas § 605 prohibits the unauthorized interception
and transmission of encrypted satellite cable
programming.” Joe Hand Promotions, Inc. v.
Yakubets, Civ. A. No. 12-4583, 2013 WL 5224123, at *2
(E.D. Pa. Sep. 17, 2013) [Yakubets I]. Thus, a
defendant cannot be held liable under both sections. TKR
Cable, 267 F.3d at 207.
it has not shown evidence of a satellite violation, J & J
requests judgment under § 553. (Pl.'s Am. Br. at
3-4.) J & J cites Yakubets I, in which the court
applied a presumption in favor of § 553 at the default
judgment stage where the plaintiff produced no evidence of a
satellite violation, reasoning in part that cables are more
easily hidden than satellite dishes. 2013 WL 5224123, at *4.
The Court will follow this ...