United States District Court, D. South Carolina
REPORT OF MAGISTRATE JUDGE
F. McDONALD UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
No. response has been filed by any defendant.
LAW AND ANALYSIS
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).
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)
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).
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
Exercising discretion and considering the plaintiff's
IT IS THEREFORE RECOMMENDED:
1. That the plaintiff's motion for default judgment (doc.
46) be granted in ...