Opinion
CIVIL ACTION NO. 2:07cv1058-MHT (WO).
October 28, 2008
OPINION AND ORDER
Plaintiff J J Sports Productions, Inc. filed this lawsuit against defendants Gary Blackwell and Blackwell Igor's, Inc. on December 3, 2007, alleging violations of 47 U.S.C. § 553, which prohibits the unauthorized reception of cable services, and 47 U.S.C. § 605, which prohibits the unauthorized publication or use of communications. J J Sports also alleged a state-law claim of conversion. The court's jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367.
On September 22, 2008, J J Sports applied to the court for judgment of default; by order dated September 24, 2008, this court ordered that Gary Blackwell and Blackwell Igor's, Inc. show cause by October 10, 2008, why J J Sports's application should not be granted. Neither Gary Blackwell nor Blackwell Igor's, Inc. has made any objection or response to the court's order.
J J Sports now requests statutory damages on its federal law claims in the sum of $150,000 and compensatory and punitive damages on the state-law conversion claim. "[J]udgment of default awarding cash damages [can] not properly be entered without a hearing unless the amount claimed is a liquidated sum or one capable of mathematical calculation. Damages may be awarded only if the record adequately reflects the basis for award via a hearing or a demonstration by detailed affidavits establishing the necessary facts." Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir. 1985) (internal quotations and citations omitted).
The damages J J Sports seeks appear to be neither a liquidated sum nor an amount capable of mathematical determination. While J J Sports's application for judgment by default briefly describes the basis for its statutory damages request, it does not provide sufficient detail for the court to determine where to set the damages within the permissible range. For example, § 605(e)(c)(i)(II) permits the court to award statutory damages ranging from $1,000 to $10,000, while § 605(e)(c)(ii) permits the court to award up to $100,000 if it finds that the violation was committed willfully or for commercial advantage. In DIRECTV, Inc. v. Huynh, 318 F. Supp. 2d 1122, 1131-1132 (M.D. Ala. 2004) (Thompson, J.) this court outlined a number of factors that should be considered in determining damages under 47 U.S.C. § 605(e). These factors include: "(1) whether the defendant profited as a result of his violation; (2) whether the defendant assisted or induced others in violating the statute; (3) whether the defendant's violation was willful or flagrant; (4) whether the damages will be sufficient to deter future similar conduct; and (5) whether the damage award is comparable to awards in similar cases." (Internal quotations and citations omitted). J J Sports should submit evidence speaking directly to these and other potentially relevant factors as to the claims under §§ 605(e) and 553(b). Furthermore, J J Sports should brief for the court the permissibility of simultaneously awarding damages under §§ 605(e) and 553(b). Finally, J J Sports should submit evidence of damages pertaining to the conversion claim, the amount requested on this claim, and the amount requested for attorneys' fees. The court, therefore, finds that further evidence and briefing from J J Sports is necessary to determine the amount of damages in this case. Fed.R.Civ.P. 55(b)(2).
Accordingly, it is ORDERED as follows:
(1) Plaintiff J J Sports, Inc.'s application for judgment by default, filed September 22, 2008 (doc. no. 24) is granted.
(2) Default judgment is entered in favor of plaintiff J J Sports, Inc. and against defendants Gary Blackwell and Blackwell Igor's, Inc.
(3) The issue of damages is set for submission, without oral argument, on November 12, 2008. The parties are to submit to the court by that date all briefs and evidentiary materials on the issue of damages.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).