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J&J Sports Productions, Inc. v. 800 Grand Family, LLC

United States District Court, D. South Carolina, Columbia Division

October 1, 2018

J&J Sports Productions, Inc., Plaintiff,
v.
800 Grand Family, LLC, doing business as Skores, also known as Primetime Sports Bar and Grill; and Sandra F. Simpkins, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff J&J Sports Productions, Inc. (“Plaintiff) had exclusive, nationwide commercial television distribution rights to Floyd Mayweather, Jr. v. Andre Berto WBA/WBC Welterweight Championship Fight Program (“the Program”) and sues defendant 800 Grand Family, LLC (“Grand Family”), d/b/a Skores, a/k/a Primetime Sports Bar and Grill (the “Establishment”), and its member, Sandra F. Simpkins (“Simpkins”) (collectively “Defendants”) for exhibiting the September 12, 2015, commercial broadcast of the Program, without paying the required licensing fee. [ECF No. 1 at ¶¶ 11-14]. Plaintiff alleges causes of action for conversion and violations of the Communications Act of 1934 (as amended, 47 U.S.C. § 605) and the Cable & Television Consumer Protection and Competition Act of 1992 (as amended, 47 U.S.C. § 553). [ECF No. 1].

         All pretrial proceedings were assigned to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Grand Family has not made a proper appearance in this court, and the court entered default against it on November 3, 2017. [ECF No. 13]. This matter is before the court on Plaintiff's motion for summary judgment filed August 3, 2018. [ECF No. 30].[1] As Simpkins is proceeding pro se, the court advised her pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) of the dismissal procedures and the possible consequences if she failed to respond adequately to the motion. [ECF No. 31]. The motion having been fully briefed [ECF Nos. 36, 39], it is ripe for disposition.

         I. Factual Background

         Plaintiff was granted the exclusive commercial distribution rights to the Program. Plaintiff's distribution rights encompassed all undercard events as well as the main event and all color commentary. Gagliardi Affidavit ¶3. At all times relevant hereto, Grand Family was doing business as Skores a/k/a Primetime Sports Bar & Grill and Simpkins was the member of Grand Family. [ECF No. 30-4 at 9; 36-2 at ¶1]. The Program was exhibited at the Establishment, operating in Columbia, South Carolina, but Defendants did not pay a commercial licensing fee or otherwise have permission to broadcast the Program. Id. at 5; Gagliardi Affidavit ¶7. Simpkins stated in responses to Plaintiffs requests for admission that “based on information from [her nephew] Edward Simpkins, a residential cable television service was diverted into the Establishment.” [ECF No. 30-4 at 7]. The commercial fee to broadcast the Program at a venue the size of the Establishment was $3, 000. Gagliardi Affidavit at ¶8. The Program was observed being displayed at the Establishment on September 12, 2015, by its private investigator Carolyn Harding (“Investigator”). [ECF No. 30-3].

         II. Discussion

         A. Standard on a Motion for Summary Judgment

         The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         B. Analysis

         Plaintiff submits that it has established liability pursuant to 47 U.S.C. § 553 and seeks statutory damages. Plaintiff does not specifically address its claim pursuant to 47 U.S.C. § 605, likely because courts are split as to the applicability of this section to pirated programming involving cable services, as opposed to satellite services, at the delivery point. The Fourth Circuit has not addressed this issue and courts in this district have adopted the Seventh Circuit's position in United States v. Norris, 88 F.3d 462 (7th Cir. 1996), finding that 47 U.S.C. § 553, not 47 U.S.C. § 605, applied to the theft of cable services at the point of delivery. Columbia Cable TV Co., Inc. v. McCary 954 F.Supp. 124 (D.S.C. 1996); see also J & J Sports Prods., Inc. v. Chef Tejano, LLC, C/A No. 0:11-2436-MBS, 2013 WL 353497, at *2 (D.S.C. Jan. 29, 2013). Statutory damages under 47 U.S.C. § 553 range from $250 to $10, 000 for all violations and a maximum $50, 000 enhancement for willfulness. 47 U.S.C. §§ 553(c)(3)(A)(ii), 553(c)(3)(B).

         1. General Statutory Damages[2]

         Plaintiff seeks the maximum of $10, 000 in statutory damages as needed to compensate Plaintiff for its damages and to deter future conduct.

         According to the Investigator's affidavit, the Establishment has a capacity of 150 patrons. [ECF No. 30-3]. According to Plaintiff's Affidavit in Support of Motion for Summary Judgment, the rate card shows, based on a capacity of up to 150, that the charge for the license fee for the Program was $3, 000. [ECF No. 30-2 at ¶8]. The court may award statutory damages between $250 to $10, 000 in an amount “the court considers just.” 47 U.S.C. § 553(c)(3)(A)(ii). Courts have used various methods of determining an appropriate amount of statutory damages. Some courts fashion an award by considering the number of patrons who viewed the programming, often multiplying that number by the cost of the residential fee for watching such programming. See Joe Hand Promotions, Inc. v. Veltsistas, LLC, No. 1:10CV1442 JCC/TRJ, 2011 WL 5826059, at *2 (E.D. Va. Oct. 21, 2011), report and recommendation adopted, No. 1:10CV1442 JCC/TRJ, 2011 WL 5826082 (E.D. Va. Nov. 18, 2011) (finding a “per patron” amount appropriate). Some courts base the statutory damages amount on an iteration of the licensing fee the violating establishment should have paid the plaintiff, and other courts award a flat amount for a violation. See e.g., J&J Sports Productions, Inc. v. Ultimate Jet-A-Way Sportsbar & Lounge, No. 4:17-CV-1038-RBH, 2018 WL 1709920, at *4 (D.S.C April 9, 2018) (finding the license fee plus cover charge appropriate ...


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