                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 17-3604
                                     ______________

                          J&J SPORTS PRODUCTIONS, INC.,
                                                Appellant

                                             v.

                             DANIEL RAMSEY,
                      a/k/a DANIEL SMITH RAMSEY,
                    d/b/a TREAURES BANQUET HALL;
           TREASURES 5549, LLC, AN UNKNOWN BUSINESS ENTITY,
                    d/b/a TREASURES BANQUET HALL
                              ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 2-17-cv-1942)
                    District Judge: Honorable Mark A. Kearney
                                 ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   October 2, 2018
                                  ______________

                Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.

                               (Filed: December 11, 2018)

                                     ______________

                                        OPINION*
                                     ______________


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
SHWARTZ, Circuit Judge.

       Plaintiff J&J Sports Productions, Inc. (“J&J”) appeals the District Court’s orders

denying its motions for default judgment against Defendant Daniel Ramsey and to alter

or amend that judgment. Because the Court did not abuse its discretion in denying these

motions, we will affirm.

                                             I

       J&J had the exclusive licensing rights to broadcast the May 2, 2015 boxing match

between Floyd Mayweather and Manny Pacquiao and the accompanying undercard

matches occurring at the MGM Grand Garden Arena in Las Vegas, Nevada. J&J

distributes sporting event programming by entering into agreements with commercial

entities for limited sublicensing rights. J&J did not enter into such an agreement with

either Defendants Treasures 5549, LLC, or Ramsey.

       Treasures 5549 owns and operates Treasures Banquet Hall (the “Banquet Hall”) in

Philadelphia, Pennsylvania. Using his personal email address and own name, Ramsey

applied for and held amusement and commercial activity licenses from the City of

Philadelphia Department of Licenses & Inspections for Treasures 5549.

       The Banquet Hall advertised on Facebook that it would broadcast the fight and

provide drink specials and free food. On fight night, the Banquet Hall admitted over 200

patrons, each paying a $20 entrance fee, and broadcasted J&J’s licensed program.

       J&J filed a complaint against Defendants in the United States District Court for

the Eastern District of Pennsylvania, alleging violations of 47 U.S.C. §§ 553 and 605 for

the unauthorized broadcast of J&J’s licensed program. Defendants were served with the


                                             2
complaint but did not respond. As a result, J&J requested and the Clerk of the Court

entered default against them. J&J then sought the entry of default judgment, and the

District Court held a hearing. The Court entered default judgment for J&J against

Treasures 5549, awarding $20,674.11 in damages under 47 U.S.C. § 605(e)(3)(C)(i) and

attorney’s fees and costs because “no one, including Treasures 5549, LLC, paid J&J for

the right to show the May 2, 2015 pay-per-view telecast.” J&J Sports Prods., Inc. v.

Ramsey, Civ. No. 17-1942, 2017 WL 4287200, at *2, *4 (E.D. Pa. Sept. 27, 2017). As to

Ramsey, the Court found that “J&J adduced no evidence of Mr. Ramsey ordering the

telecast, advertising the telecast or his presence in the Treasures Banquet Hall for the

showing,” and that the evidence it produced concerning his association with Treasures

5549 was insufficient to establish individual liability. Id. at *4.

       J&J moved to alter or amend judgment pursuant to Federal Rule of Civil

Procedure 59(e), which the District Court denied. The Court held that J&J failed to meet

the standard required for such a motion and said that, contrary to J&J’s argument, the

Court had not required proof of actual knowledge to hold Ramsey individually liable.

The Court also held that the amusement and business licenses on which J&J relied “do

not reflect Mr. Ramsey’s official capacity,” or include “allegations of an officer role,”

and thus do not establish “Ramsey’s right and ability to supervise paired with a direct

financial benefit.” App. 5.

       J&J appeals.




                                              3
                                            II1

                                            A

       We review orders granting or denying default judgment motions and Rule 59(e)

motions to alter or amend judgment for abuse of discretion. Jorden v. Nat’l Guard

Bureau, 877 F.2d 245, 250-51 (3d Cir. 1989) (citations omitted) (default judgment);

Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir. 2001) (Rule 59(e)

motion). An abuse of discretion occurs “as a result of an errant conclusion of law, an

improper application of law to fact, or a clearly erroneous finding of fact.” McDowell v.

Phila. Hous. Auth., 423 F.3d 233, 238 (3d Cir. 2005) (citing Chiang v. Veneman, 385

F.3d 256, 264 (3d Cir. 2004)).

                                             B

       J&J argues that the District Court erred in denying its request for default judgment

against Ramsey and its motion to alter or amend that judgment because it wrongly

applied a heightened standard for individual liability. J&J also argues that the Court

erred in finding insufficient evidence upon which to hold Ramsey individually liable for

commercial piracy because the business documents in his name establish control over the

Banquet Hall’s employees and activities and direct financial benefit in its increased

profits.




       1
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.


                                             4
       Before granting default judgment, a district court may consider whether “the

unchallenged facts constitute a legitimate cause of action, since a party in default does

not admit mere conclusions of law.” Broadcast Music, Inc. v. Spring Mount Area

Bavarian Resort, Ltd., 555 F. Supp. 2d 537, 541 (E.D. Pa. 2008) (citations omitted); see

10A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice & Procedure § 2685

(4th ed. 2018).2

       J&J claims Ramsey is liable for violating the commercial piracy statutes, 47

U.S.C. §§ 553 and 605.3 The Communications Act, § 605, holds any person or individual

liable for the unauthorized interception and publication of airborne satellite cable

transmissions for non-private viewing. 47 U.S.C. § 605(a), (b), (d)(1); TKR Cable Co. v.

Cable City Corp., 267 F.3d 196, 207 (3d Cir. 2001). Similarly, under the Cable Act,

§ 553, “[n]o person shall intercept or receive or assist in intercepting or receiving any

communications service offered over a cable system, unless specifically authorized to do

so.” 47 U.S.C. § 553(a)(1).




       2
          In addition, “[t]hree factors control whether a default judgment should be
granted: (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.” Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).
        3
          Because courts have adopted the same test for personal liability under both
statutes, we need not differentiate between personal liability under §§ 553 or 605. See,
e.g., J&J Sports Prods., Inc. v. Crazy Willy’s Bar, Lounge & Rest., Inc., No. 17-CV-
1192, 2018 WL 3629595, at *3 (E.D.N.Y. July 31, 2018); J&J Sports Prods., Inc. v. BOB
Lounge, LLC, No. 17-11350, 2018 WL 300362, at *4 (E.D. Mich. Jan. 5, 2018); Joe
Hand Promotions, Inc. v. Bush, SA-16-CA-174-FB, 2017 WL 7052329, at *2 (W.D. Tex.
Oct. 27, 2017); J&J Sports Prods., Inc. v. Ribeiro, 562 F. Supp. 2d 498, 501 (S.D.N.Y.
2008).

                                              5
       A plaintiff must satisfy three elements to establish a defendant’s liability under

these statutes: (1) interception of a satellite transmission or broadcast, (2) lack of

authorization, and (3) publication. See 47 U.S.C. §§ 553(a), 605(a). Here, J&J seeks to

impose liability on both Treasures 5549 and an individual associated with Treasures

5549. To hold such an individual liable, J&J must prove that the individual:

       (1) has the right and ability to supervise the violative activity, although he
       need not actually be supervising, because he need not know of the violative
       activity, and (2) has a direct financial interest in the violation, i.e., financial
       benefits, even if not proportional or precisely calculable, that directly flow
       from the violative activity.

Joe Hand Promotions, Inc. v. Yakubets, 3 F. Supp. 3d 261, 296 (E.D. Pa. 2014) (adopting

test for individual vicarious liability under the Copyright Act set forth in Softel, Inc. v.

Dragon Medical & Scientific Communications, Inc., 118 F.3d 955, 971 (2d Cir. 1997));

see also Joe Hand Promotions, Inc. v. Tickle, No. 4:12-cv-01874, 2016 WL 393797, at

*13 (E.D. Pa. Feb. 2, 2016) (applying Yakubets test); J&J Sports Prods., Inc. v. Chauca,

Civ. No. 14-6891, 2015 WL 7568389, at *5 (E.D. Pa. Nov. 25, 2015) (same). Thus,

individual liability under § 553 “does not require actual knowledge or supervision.” J&J

Sports Prods., Inc. v. Cruz, Civ. No. 14-2496, 2015 WL 2376290, at *4 (E.D. Pa. May

18, 2015).

       Here, the District Court applied the test described above, did not require proof of

actual knowledge, and correctly concluded that J&J did not adduce facts to impose

individual liability on Ramsey. Ramsey, 2017 WL 4287200, at *2, *4 (citing Cruz, 2015

WL 2376051, at *5 (citing Yakubets, 3 F. Supp. 3d at 277)); see also App. 4 (reiterating

Yakubets test in the order denying Plaintiff’s motion to alter or amend judgment)). First,


                                               6
although J&J alleged in its complaint that “Ramsey is a managing member of Treasures

5549, LLC,” App. 85, and presented a document showing that Treasures is an LLC,

Ramsey’s name is not on that document,4 and there is no evidence or allegation that he

has an ownership interest in Treasures 5549. In any event, an ownership interest or right

in an LLC as a managing member alone is insufficient to establish liability. See Joe

Hand Promotions, Inc. v. Murray, No. 5:15-cv-5631, 2016 WL 3903205, at *4-5 (E.D.

Pa. July 18, 2016) (holding that an individual could not be found liable where plaintiff

alleged only that she was a managing member of the LLC that owned and operated the

pirating business). Second, the fact that Ramsey applied for and received the amusement

and business licenses is insufficient to show he had the right to control or supervise the

activities at the Banquet Hall. See Yakubets, 3 F. Supp. 3d at 297, 300, 301 (holding

liquor license was sufficient to establish individual liability where it identified the

individual as the president, secretary/treasurer, director, stockholder, and

manager/steward of the pirating business). Here, Ramsey’s name merely appears on

these licenses, and there is nothing in the record to show the licenses imposed any

particular obligations on him. Contra Tickle, 2016 WL 393797, at *13 (holding liquor

license sufficient to establish individual liability where individual was registrant on the



       4
         In its default judgment opinion, the District Court asserted, without citation, that
Ramsey also filed the LLC registration papers for Treasures 5549. Ramsey, 2017 WL
4287200, at *1. J&J repeated this statement in its briefs, citing the Court’s opinion. See
Appellant’s Br. at 14; Dkt. No. 34-1 at 4. There is no support in the record for this
assertion. J&J has provided only the Pennsylvania Business Entity Filing History for
Treasures 5549, which does not list Ramsey’s name, and alleged in the unverified
complaint only that “Ramsey is a managing member of Treasures 5549, LLC,” App. 85.

                                               7
license and the license obligated him to supervise the activities of the business). Third, as

the District Court noted, J&J relies predominately on its allegations in the complaint

made on information and belief. These allegations are distinguishable from the factually-

supported statements on which the Cruz court relied where the defendant answered the

complaint, admitting that she was once the legal operator of the pirating business and the

business entity filing history explicitly listed her as an officer. 2015 WL 2376290, at *4.

       Thus, given the lack of evidence to show Ramsey had the right and ability to

supervise activities at Treasures 5549 and the Banquet Hall, the District Court properly

concluded that Ramsey cannot be held individually liable for the piracy violations.

Therefore, it did not abuse its discretion in denying default judgment as to Ramsey.

                                             C

       We reach the same conclusion concerning the District Court’s order denying J&J’s

motion to alter or amend the default judgment. Pursuant to Rule 59(e), three

circumstances warrant altering or amending a judgment: “(1) an intervening change in the

controlling law; (2) the availability of new evidence that was not available when the court

granted the motion for summary judgment; or (3) the need to correct a clear error of law

or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v.

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing N. River Ins. Co. v. CIGNA

Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Because none of these

circumstances is met and the District Court correctly declined to find Ramsey

individually liable, there was no reason for it to alter or amend its ruling denying J&J’s

motion for default judgment against Ramsey.


                                             8
                                     III

For the foregoing reasons, we will affirm.




                                     9
