J&J Sports Productions Inc v. Drakeford et al
Filing
10
ORDER AND OPINION granting 9 Motion for Default Judgment. Signed by Honorable Margaret B Seymour on 9/21/2016.(mdea )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
J&J Sports Productions, Inc.,
)
)
Plaintiff,
)
)
-vs)
)
Steven Dante Drakeford d/b/a Steve’s Lounge )
Bar & Grill, and Styron Drakeford d/b/a
)
Steve’s Lounge Bar & Grill,
)
)
Defendants.
)
_____________________________________ )
C/A No.: 0:16-cv-01117-MBS
ORDER AND OPINION
On April 11, 2016, Plaintiff J & J Sports Productions, Inc. (“J & J Sports”), filed an action
in this court against Defendants Steven Dante Drakeford and Styron Drakeford, collectively doing
business as Steve’s Lounge Bar & Grill (“Steve’s Lounge Bar & Grill”). Plaintiff alleges that it
owned the exclusive television distribution rights for a boxing match, and that Defendants
exhibited the fight at a commercial establishment without paying a licensing fee to Plaintiff.
Plaintiff has asserted claims under the Communications Act, 47 U.S.C. § 605, and the Cable
Communications Policy Act, 47 U.S.C. § 553, as well as a state law claim for conversion. Neither
Defendant filed an answer or otherwise responded to Plaintiff’s complaint. On May 11, 2016, in
response to Plaintiff’s request, the clerk entered default as to both Defendants. On May 26, 2016,
Plaintiff filed a motion for default judgment.
FACTS
The following facts are alleged in Plaintiff’s complaint (ECF No. 1), and due to Defendants’
default, are accepted as true: Defendant Steven Dante Drakeford (“Steven”) is a South Carolina
citizen doing business Steve’s Lounge Bar & Grill & Grill. Id. at 2. Defendant Styron Drakeford
1
(“Styron”) is the owner, chief executive, member, principal, alter ego, manager, agent, and/or
representative of Steve’s Lounge Bar & Grill. Id. Defendants had dominion, supervisory control,
oversight, and management authority over the Steve’s Lounge Bar & Grill. Id. at 3. J & J Sports
Productions, Inc., a California corporation, purchased the exclusive television distribution rights
to “Manny Pacquio v. Timothy Bradley, II WBO Welterweight Championship Fight Program”
(“Championship Fight”), which took place on April 12, 2014. Id. at 3. Defendants, or their agents,
unlawfully intercepted, received, published, divulged, and exhibited the Championship Fight at the
time of its transmission with full knowledge that they were unauthorized to do so. Id. at 4. This
interception was done willfully and for the purposes of commercial advantage or financial gain. Id.
Steven and Styron were present during and participated in this misconduct. Id.
The following facts are set out in a sworn affidavit by private investigator, Carolyn D.
Harding (ECF No. 9-4): Carolyn D. Harding went to Steve’s Lounge Bar & Grill on April 12,
2014, and observed that the Championship Fight was being shown on three televisions. Id. She
states that the approximate capacity of the establishment is 150 customers but she observed no more
than 25 customers at a given time. Id. According to a sworn affidavit by Plaintiff’s president, Joseph
Gagliardi, based on a capacity of 101 to 200 persons, it would have cost $3,200.00 (license fee) for
Steve’s Lounge Bar & Grill & Grill to purchase the rights to exhibit the Championship Fight. ECF
No. 9-3 at 3 & 10.
According to the private investigator’s affidavit, she paid a $5.00 cover charge the night of
the broadcast.
DISCUSSION
A.
Liability
2
Under 47 U.S.C. § 605(a), “no person receiving . . . any interstate or foreign communication
by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or
meaning thereof, except through authorized channels of transmission or reception . . . to any person
other than the addressee, his agent, or attorney.” Any person aggrieved by such a violation may bring
a civil action to obtain an injunction and to recover damages, costs, and attorney fees. 47 U.S.C. §
605(e)(3). The aggrieved party may recover actual damages or statutory damages between $1,000
and $10,000 for each violation. 47 U.S.C. § 605(e)(3)(C)(i). Furthermore, 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 increase the damages by an amount not more than $100,000
for each violation. 47 U.S.C. § 605(e)(3)(C)(ii).
Under 47 U.S.C. § 553(a)(1), “[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 by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. §
553(a)(1). Any person aggrieved by such a violation may bring a civil action to obtain an injunction
and to recover damages, costs, and attorney fees. 47 U.S.C. § 553(c). The aggrieved party may
recover actual damages or statutory damages between $250 and $10,000 for all violations involved
in the action. 47 U.S.C. § 553(c)(3)(A). Furthermore, if the court finds that “the violation was
committed willfully and for purposes of commercial advantage or private financial gain,” the court
may increase the damages by an amount not more than $50,000. 47 U.S.C. § 553(c)(3)(B).
The Seventh Circuit has held that § 605 and § 553 employ mutually exclusive categories,
specifically that a “communications service offered over a cable system” is not a “radio
communication.” United States v. Norris, 88 F.3d 462, 469 (7th Cir. 1996). In other words, a person
3
who steals cable services at the point of delivery is liable only under § 553, even if the signals were
transmitted by radio at some earlier point. On the other hand, the Second Circuit has disagreed and
held that some cable transmissions may also constitute “radio communications” under § 605.
International Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir. 1996). The Fourth Circuit has not
considered the question, but consistent with other courts in the District of South Carolina, this court
finds that the reasoning of Norris to be more persuasive. See Columbia Cable TV Co., Inc. v.
McCary, 954 F. Supp. 124 (D.S.C. 1996).
As a result, Defendants are liable under § 605 only if they exhibited radio communications
without authorization and liable under § 553 only if they received cable communications without
authorization. Plaintiff admits that it has not determined how Defendants received the Program,
whether through radio or cable, but argues that there is no way to make such a determination without
the benefit of discovery. ECF No. 9-1 at 4. Having been denied the benefit of discovery, Plaintiff
requests to proceed under § 605. Id. The court finds this to be a reasonable solution. The court finds
that Defendants violated 47 U.S.C. § 605 by exhibiting interstate radio communications without
authorization to customers at a commercial establishment. Furthermore, based on Plaintiff’s wellpleaded allegations, the court finds that the violation was committed willfully and for the purposes
of commercial advantage or financial gain.
Plaintiff also seeks damages based on a tort theory of conversion. However, recovery under
both § 605 and the tort of conversion would result in an impermissible double recovery for the same
loss. See, e.g., J & J Sports Prod., Inc. v. J.R.’Z Neighborhood Sports Grille, Inc., 2010 WL
1838432 at *2 (D.S.C. Apr. 5, 2010). Because Plaintiff has indicated its choice to proceed under
§ 605 and to not pursue the conversion claim, the court will address damages only under § 605.
4
B.
Damages
Plaintiff elects to recover statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II). Plaintiff
seeks an award of $10,000, the maximum authorized amount. As explained above, it would have
cost $3,200 for Defendants to purchase the rights to exhibit the Championship Fight at Steve’s
Lounge Bar & Grill. Especially in light of the fact that the Defendants imposed a cover charge, it
is quite clear that Defendants’ violations were intentional and willful, and the court agrees that
more than nominal damages should be awarded to deter future violations. The court finds that an
award of $6,400 (double the license fee) fairly approximates the actual harm to Plaintiff resulting
from Defendants’ unauthorized exhibition of the Program.
Plaintiff also seeks enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii) because
Defendants’ violation was committed willfully and for the purposes of commercial advantage or
financial gain. Plaintiff requests $100,000, the maximum authorized amount. Plaintiff argues that
it loses much revenue due to unauthorized commercial exhibition of its boxing programs because
legitimate bars and restaurants cannot afford to compete with “pirate” bars and restaurants. Plaintiff
explains that due to the significant costs of purchasing its programs, legitimate bars and restaurants
typically must charge a cover fee or otherwise raise food and drink prices when they are showing the
programs. Plaintiff argues that pirate bars and restaurants gain a competitive advantage because they
are able to show the programs without charging cover fees or raising prices. Plaintiff further
contends that requiring the violator to pay only what it would have cost to license the program
originally does nothing to deter such violations, particularly when there is a chance of avoiding
detection.
The court agrees that an enhanced award is necessary to deter the willful piracy of Plaintiff’s
5
programs. While the court does not approve the maximum of statutory enhanced damages, it
concludes that enhanced damages in the amount of three times the statutory damages, or $19,200,
provides just and adequate deterrence for such willful violations. Accordingly, the court awards
total damages in the amount of $25,600.
C.
Costs and Attorney Fees
The court “shall direct the recovery of full costs, including awarding reasonable attorneys’
fees to an aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). Because Plaintiff is an
aggrieved party that has prevailed, it is entitled to recover costs and attorney fees. Plaintiff submitted
an affidavit from its South Carolina counsel in support of its request for costs and attorney fees. ECF
No. 12-6; ECF No. 12-7. The court grants costs to Plaintiff in the amount of $510.00, including
filing fees and process service costs.
In this default matter, no one has appeared to challenge the attorney fees Plaintiff seeks.
Nonetheless, in determining what constitutes a reasonable number of hours and the appropriate
hourly rates, the court must consider the following factors: (1) the time and labor expended; (2) the
novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case
within the legal community in which the suit arose; (11) the nature and length of the professional
relationship between attorney and client; and (12) attorney fees awarded in similar cases. Barber v.
6
Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). Although the court must consider all twelve of
the factors, the court is not required to rigidly apply these factors, as not all may affect the fee in a
given case. “[T]hese factors should be considered in determining the reasonable rate and the
reasonable hours, which are then multiplied to determine the lodestar figure which will normally
reflect a reasonable fee.” E.E.O.C. v. Servo News Co., 898 F.2d 958, 965 (4th Cir. 1990). In
determining whether a rate is reasonable, the court is to consider “prevailing market rates in the
relevant community.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994)
(quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).
The information Plaintiff provided, coupled with the court’s knowledge of rates in work of
this type in this district, supports attorney’s fees in the amount of $1,359.75. Based on the information
and supporting documents before the court at this time, the court concludes that the judgment against
Defendants should include an award of costs and attorney fees in the amount of $1,869.75 ($510.00
costs plus $1,359.75 attorney fees).
CONCLUSION
Plaintiff’s motion for default judgment is granted. The court finds that Defendants willfully
violated 47 U.S.C. § 605. Judgment in favor of Plaintiff is entered against Defendants, jointly and
severally, in the amount of $27,469.75, comprising $25,600 in damages and $1,869.75 in costs
and attorney fees.
IT IS ORDERED.
s/ Margaret B. Seymour________
Margaret B. Seymour
Senior United States District Judge
Columbia, South Carolina
September 21, 2016
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?