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J&J Sports Productions, Inc. v. J&R Social Club, Inc.

United States District Court, D. South Carolina

September 7, 2018

J&J Sports Productions, Inc., Plaintiff,
v.
J & R Social Club, Inc. d/b/a Silvermoon Sports Lounge, Jennyfer Benzant Rodriguez a/k/a/ Jennifer Benzant, Carrie Pelfrey a/k/a/ Carrie Springs, and Ashley Simmons, Defendants.

          REPORT OF MAGISTRATE JUDGE

          KEVIN F. McDONALD UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the motion of the plaintiff for default judgment as to defendants J & R Social Club, Inc. d/b/a Silvermoon Sports Lounge, Jennyfer Benzant Rodriguez a/k/a Jennifer Benzant, and Ashley Simmons (doc. 46). Defendant Carrie Pelfrey a/k/a Carrie Springs has appeared pro se in this matter.

         Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters involving litigation by individuals proceeding pro se and submit findings and recommendations to the district court.

         PROCEDURAL HISTORY

         Defendants J & R Social Club and Benzant Rodriguez were served with the summons and amended complaint on October 26, 2017, and defendant Simmons was served on December 6, 2017 (docs. 11-1, 11-2, 14). When these defendants failed to timely file an answer or other responsive pleading, the plaintiff requested entry of the defendants' default pursuant to Federal Rule of Civil Procedure 55(a) (docs. 12, 17). The Clerk of Court entered the default of defendants J & R Social Club and Benzant Rodriguez on November 27, 2017 (doc. 13) and entered the default of defendant Simmons on January 3, 2018 (doc.18). On August 2, 2018, the plaintiff filed the instant motion for default judgment pursuant to Rule 55(b) as to defendants J & R Social Club, Benzant Rodriguez, and Simmons (doc. 46).[1] No. response has been filed by any defendant.

         APPLICABLE LAW AND ANALYSIS

         Upon consideration of the plaintiff's motion for default judgment as to defendants J & R Social Club, Benzant Rodriguez, and Simmons, the pleadings on file and the relevant authorities, the undersigned concludes that the plaintiff has established that it is an aggrieved party under the Federal Communications Act, 47 U.S.C. §§ 553 and 605, which prohibit the unauthorized interception and reception of cable programming services. When a defendant is liable under both sections 553 and 605, an aggrieved plaintiff may recover damages under only one section. Kingvision Pay-Per-View Corp., LTD v. Wright, C.A. No. 8:06-cv-892-T-30MAP, 2006 WL 4756450, at *2 (M.D. Fla. Oct. 27, 2006) (citation omitted).[2]

         The court recognizes the plaintiff's election to seek statutory damages solely under 47 U.S.C. § 605 (doc. 46-1 at 5). Under this section, a plaintiff may recover statutory damages of up to $10, 000.00 for each violation thereof. 47 U.S.C. § 605(e)(3)(C)(i)(II). Moreover, if the court finds that the violation was committed “willfully and for purposes of direct or indirect commercial advantage or private financial gain, ” the court may award additional damages of up to $100, 000.00. Id. § 605(e)(3)(C)(ii). Furthermore, pursuant to 47 U.S.C. § 605(e)(3)(B)(iii), a court shall award full costs, including reasonable attorney's fees, to an aggrieved party who prevails. For an individual defendant to be held vicariously liable under section 605, a plaintiff need only show that the defendant had the right and ability to supervise the violations and a strong financial interest in such activities. See J & J Sports Prods., Inc. v. Ribeiro, 562 F.Supp.2d 498, 501 (S.D.N.Y. 2008) (citation omitted).

         The undersigned concludes that it has jurisdiction over the subject matter and parties to this action and that these defendants failed to answer or otherwise defend as provided by the Federal Rules of Civil Procedure following proper service. By virtue of their default, the allegations of the plaintiff's amended complaint are deemed admitted against these defendants. Thus, it is admitted that these defendants exhibited the closed circuit, Floyd Mayweather, Jr. v. Andre Berto WBA/WBC Welterweight Championship Fight Program broadcast, including undercard bouts, scheduled for September 12, 2015, (“the Broadcast") at the Silvermoon Sports Lounge without authorization from the plaintiff, which paid for and was granted the exclusive, nationwide, television distribution rights to the Broadcast. It is further admitted that the individual defendants Benzant Rodriguez and Simmons are owners, chief executives, members, principals, alter egos, managers, agents, and/or other representatives of the defendant J & R Social Club, which owns Silvermoon Sports Lounge; they had dominion, supervisory control, oversight, and management authority over the said establishment; and they were present during and participated in the misconduct (doc. 6).

         The record reflects that the commercial sublicense fee for the Broadcast was $3, 000.00, if a commercial establishment had a maximum fire code occupancy of 150 persons (doc. 46-2, Gagliardi aff. ¶8). The record further reflects that the plaintiff's investigator, Donna Persinger, visited the Silvermoon Sports Lounge on September 12, 2015, and she observed between 11 to 20 persons at the establishment, which has a capacity of approximately 150 persons, and she observed the Broadcast being displayed to patrons (doc. 46-3, Persinger aff.). The plaintiff has submitted the declaration of its attorney setting out its attorney's fees ($1, 500.00 for six hours at $250.00 per hour) and costs ($1, 242.18) associated with the prosecution of this matter (doc. 46-5, Hale decl. ¶¶ 8-9). The undersigned finds that the requested attorney's fees and costs are reasonable.

         CONCLUSION AND RECOMMENDATION

Exercising discretion and considering the plaintiff's filings,
IT IS THEREFORE RECOMMENDED:
1. That the plaintiff's motion for default judgment (doc. 46) be granted in ...

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