United States District Court, D. Delaware
Charles J. Brown, III, Gellert Scali Busenkell & Brown,
LLC, Wilmington, DE - attorneys for Plaintiff
NOREIKA, U.S. DISTRICT JUDGE.
the Court is a Motion for Default Judgment (the
"Motion") (D.I. 11) submitted by Plaintiff J &
J Sports Production, Inc. (hereinafter "J&J" or
"Plaintiff) against M&I Hospitality of Delaware
("M&I"), Igor Ramos ("Ramos"), and
Martha Rivera ("Rivera") d/b/a Morelia Mexican
Restaurant (collectively "Defendants") for the
unlawful interception and exhibition of Plaintiffs program
without a proper commercial license pursuant to claims of 47
USC § 605, 47 USC § 553, and for common law
conversion. For the reasons below, the Court grants the
Motion as to M&I, denies the Motion as to the individual
Defendants Igor Ramos and Martha Rivera, and awards damages
to Plaintiff in the amount of $2, 752.
is an international sports and entertainment distributor.
(D.I. 12 at 1). In the Spring of 2013, Plaintiff contracted
for the "exclusive nationwide television distribution
rights to the Floyd Mayweather, Jr. v. Robert Guerrero,
WBS Welterweight Championship Fight Program and its
undercard bouts (the "Fight") taking place on May
4, 2013. (D.I. 1 at 2). Leading up to the Fight, J&J
entered sublicensing agreements with commercial entities
across North America, granting those entities limited
commercial rights to show the Fight. (Id. at 3).
two years after the Fight, on May 1, 2015, Plaintiff filed a
Complaint for Damages (the "Complaint") against
Defendants alleging that:
[w]ith full knowledge that the [Fight] was not to be
intercepted, received and exhibited by entities unauthorized
to do so, defendants and/or their agents, servants, workmen
or employees so did unlawfully publish, divulge and exhibit
the Program at the time of its transmission at their
addresses of their respective establishments, as indicated
above. Said unauthorized interception, publication,
exhibition and divulgence by defendants was done willfully
and for purposes of direct or indirect commercial advantage
or private financial gain.
(Id.). Plaintiff asserted three claims against the
Defendants: violation of 47 U.S.C. § 605; violation of
47 U.S.C. § 553; and common law conversion.
(Id. at 2-5). Following inaction from all parties,
the Honorable Gregory M. Sleet issued a Status Report Order
on February 3, 2016, directing Plaintiff to "submit a
status letter ... no later than February 23, 2016."
(D.I. 3). Plaintiff failed to comply. Thereafter, on March
14, 2016, Plaintiff submitted requests for default as to each
of the Defendants. (D.I. 4, 5, 6). The Clerk entered default
as to each of the Defendants the same day. (D.I. 7, 8, 9).
More than two years later, on September 20, 2018, the case
was reassigned to the undersigned. On October 2, 2018, the
Court entered an Order to Show Cause for failure to
prosecute. (D.I. 10). On October 10, 2018, nearly thirty-one
(31) months after the entry of default, Plaintiff filed its
Motion. (D.I. 11).
its Motion, Plaintiff submitted an affidavit from its
President, (id., Exhibit A) (the
"Gagliardi Affidavit"); its contract for the
exclusive license to exhibit a live telecast of the Fight
(Id., Exhibit A-1); a "rate-card" for
commercial sub-licenses (Id., Exhibit A-2); and an
affidavit from an investigator named Daniel Szlezak
(Id., Exhibit B) (the "Szlezak
Affidavit"). The Szlezak Affidavit outlines the
investigator's presence at Morelia Mexican Restaurant on
the night of the Fight and indicates that he (1) paid a $6
cover charge to enter the establishment, (2) observed five
televisions of various size placed around the room, and (3)
watched a portion of an undercard fight playing on a
television. (Id., Exhibit B at 1). Szlezak states
"I counted the number of patrons two (sic) separate
times. The head counts were 85, 88, 92." (Id.).
November 1, 2018, Plaintiff filed a response to the Order to
Show Cause explaining its delay was because it "believed
that a default judgment had been obtained once the default
was entered." (D.I. 13 at 1).
and default judgments are governed by Rule 55 of the Federal
Rules of Civil Procedure. Under Rule 55(a), where defendant
is properly served and has subsequently "failed to plead
or otherwise defend, ... the clerk must enter the party's
default." Fed.R.Civ.P. 55(a). Following the clerk's
entry of default, where a claim is not for a sum
certain, a plaintiff must "apply to the court
for a default judgment." Fed.R.Civ.P. 55(b)(2). In the
Third Circuit, there is a preference that, where possible, a
case should be decided on its merits and not by default
judgment. Cananzaro v. Fischer, 570 Fed.Appx. 162,
165 (3d Cir. 2014). When determining whether to grant a
default judgment, the Court uses the three-part test set out
by the Third Circuit in Chamberlain v. Giampapa,
which requires a consideration of "(1) prejudice to the
plaintiff if default is denied, (2) whether the defendant
appears to have a litigable defense, and (3) whether
defendant's delay is due to culpable conduct." 210
F.3d 154, 164 (3d Cir. 2000) (citing United States v.
$55, 518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir.
1984)). The Court takes the Complaint's well-plead facts
as true, but damages must be proven by the Plaintiff. See
Comdyne I Inc. v. Corbin, 908 F.2d 1142, 1149
Plaintiff is Entitled to Default Judgment Against M&I