J&J Sports Productions Inc v. Ultimate Jet-A-Way Sportsbar & Lounge Inc et al
ORDER FOR JUDGMENT BY DEFAULT AGAINST ULTIMATE JET-A-WAYSPORTSBAR & LOUNGE, INC.. IT IS ORDERED that a judgment in favor of Plaintiff be entered against Defendant, Ultimate Jet-A-Way Sportsbar & Lounge, Inc., in the amount of $4,070.00 in statutory and enhanced damages plus $1,840.75 in attorneys fees and costs. Thus, the total judgment is $5,910.75. Signed by the Honorable R Bryan Harwell on 10/31/2017. (lsut)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
J&J Sports Productions, Inc.,
Ultimate Jet-A-Way Sportsbar & Lounge,
Inc., and La’Tanya T. Epps,
C/A No.: 4:17-cv-1038-RBH
ORDER FOR JUDGMENT
BY DEFAULT AGAINST
SPORTSBAR & LOUNGE, INC.
Plaintiff, J&J Sports Productions, Inc. (“Plaintiff”), which had exclusive, nationwide
commercial television distribution rights to “Floyd Mayweather, Jr. v. Marcos Rene Maidana
WBC Welterweight Championship Fight Program,” (“the Program”), sued Ultimate Jet-A-Way
Sportsbar & Lounge, Inc., and La’Tanya T. Epps (“Defendants”) for exhibiting the May 3, 2014
commercial broadcast of the Program, which included under-card bouts and commentary, at 55
N. Williamsburg County Highway, Kingstree, South Carolina 29556, without paying the
required licensing fee to Plaintiff. Plaintiff’s Complaint included causes of action brought
pursuant to 47 U.S.C. § 605 (“Communications Act”) and 47 U.S.C. § 553 (“Cable & Television
Consumer Protection and Competition Act”), as well as a state law claim for conversion.
Although Defendant Ultimate Jet-A-Way Sportsbar & Lounge, Inc. (“Defendant Ultimate”) was
properly served with the Complaint, it has not answered or filed any responsive pleading.
Pursuant to Plaintiff’s request for Entry of Default (ECF No. 8), the Clerk of Court entered a
default against the Defendants (ECF No. 9), and Plaintiff then moved for a default judgment and
award of attorneys’ fees and other costs. (ECF No. 12.) Defendant La’Tanya T. Epps
(“Defendant Epps”) served and filed an Answer to Plaintiff’s Complaint (ECF No. 6.), and she is
not in default. This Order is not directed to Defendant Epps.
The court finds that, with regard to Defendant Ultimate, there is no need for an
evidentiary hearing and that a decision is properly reached on the basis of the uncontested
pleadings and detailed affidavits submitted. See Fed. R. Civ. P. 55(b)(2) (“the court may conduct
hearings . . . when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.”); Anderson v. Found. For Advancement Educ. & Emp’t of Am.
Indians, 155 F.3d 500, 507 (4th Cir. 1998) (“ . . . in some circumstances a district court entering a
default judgment may award damages ascertainable from the pleadings without holding a
hearing.”) If the defendant does not contest the amount pled in the complaint and the claim is for
a sum that is certain or easily computable, the judgment can be entered for that amount without
further hearing. JTH Tax, Inc. v. Smith, No. 2:06cv76, 2006 WL 1982762, at *2 (E.D. Va. June
23, 2006). The court has reviewed Plaintiff’s submissions, and has determined that they
adequately support Plaintiff’s claims and provide a reasonable basis upon which to rest an award
of damages that is easily computable.
Plaintiff filed a Complaint against Defendants on April 21, 2017. This action seeks an
award of statutory damages, enhanced damages, attorneys’ fees and costs, as well as
compensatory and punitive damages based on the unlicensed broadcast of the Program. (ECF
Jurisdiction and Venue
The court has subject matter jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §§
1331 and 1367. The court has personal jurisdiction over Defendants, and venue in this District is
proper pursuant to 28 U.S.C. § 1391 because Defendants are South Carolina residents they are,
or were doing business in this District, and because the alleged wrongful acts occurred in this
Process and Service
On April 25, 2017, Plaintiff’s private process server served La’Tanya T. Epps
individually and as Registered Agent of Ultimate Jet-A-Way Sportsbar & Lounge (ECF No. 51.)
Grounds for Entry of Default
Defendant Ultimate did not timely file an answer or other pleading, as reflected by
Affidavit of Default (ECF No. 8-1) and Affidavit of Plaintiff’s Counsel in Support of Request for
Entry of Default, with regard to Defendant Ultimate. (ECF No. 8-2.) The Clerk of Court properly
entered default as to Defendant Ultimate on July 19, 2017. (ECF No. 9.)
Motion for Default Judgment
On August 31, 2017, Plaintiff filed a Notice of Motion and Motion for Default
Judgment, a copy of which was served upon Defendants by mail on said date. (ECF No. 12.)
Findings of Fact
Having reviewed Plaintiff’s Complaint, Answers to Local Rule 26.01 Interrogatories,
Request for Entry of Default, Motion for Default Judgment, as well as all supporting and
supplemental information provided, the court accepts Plaintiff’s well-pled factual allegations as
true and makes the following factual findings. See DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322
n.1 (4th Cir. 2009) (accepting plaintiff’s allegations against defaulting defendant as true, noting a
defaulting defendant “admits the plaintiff’s well-pleaded allegations of fact, is concluded on
those facts by the judgment, and is barred from contesting on appeal the facts thus established.”)
(quoting Ryan v. Homecomings Fin. Network, 253 F.3D 778, 780 (4th Cir. 2001)).
Plaintiff is a California limited liability company with its principal place of business in
Campbell, California. (ECF No.1 at ¶5.) Defendant Ultimate is a corporation organized and
existing under the law of State of South Carolina, and is, or at all relevant times mentioned in the
Complaint was, doing business as Ultimate Jet-A-Way Sportsbar & Lounge, in the County of
Williamsburg (Id. at ¶6.)
Relevant to this litigation, Plaintiff paid for, and was granted, the exclusive nationwide
commercial television distribution rights to the Program. Plaintiff contracted with and granted
certain businesses the rights to exhibit publicly the Program to its customers within their
commercial establishments. Plaintiff expended substantial money in marketing, advertising,
administering and transmitting the Program to such businesses.
Plaintiff alleges in its Complaint that Defendants were present during the broadcast and
committed, directly or indirectly, the misconduct, had dominion, control, oversight and
management authority over the establishment known as Ultimate Jet-A-Way Sportsbar &
Lounge, and had an obvious and direct financial interest in the misconduct. (ECF No. 1 at 3-4 ¶¶
Having found the facts set forth in Plaintiff’s Complaint as deemed admitted by
Defendant Ultimate, by its default, the court must ensure the Complaint sets forth a proper claim
before entering default judgment.
See GlobalSanta Fe Corp. v. Globalsantafe.com, 250
F.Supp.2d 610, 612 n.3 (E.D. Va. 2003) (considering facts and evaluating Plaintiff’s claims prior
to entry of default judgment in copyright action). The court considers whether Plaintiff has set
forth claims for which relief can be granted pursuant to the standard of Fed.R.Civ.P. 12(b)(6).
Election of Remedies
In its Motion for Default Judgment and accompanying Memorandum, Plaintiff submits
that it has established liability pursuant to 47 U.S.C. § 605 and 47 U.S.C. § 553; and because the
two statutory schemes provide relief for the alternate means by which the Program might have
been received (satellite or cable), Plaintiff has, with respect to Defendant Ultimate, conditionally
elected to proceed under 47 U.S.C. § 605, withdrawing its cause of action under 47 U.S.C. § 553
(ECF No. 12 at 1 ¶ 6.) and to withdraw its cause of action for conversion, provided that it
prevails under 47 U.S.C. § 605. (Id.)
In electing to pursue damages pursuant to 47 U.S.C. § 605, Plaintiff has conceded the
split in authority as to the applicability of this section to pirated programming involving cable
services--as opposed to satellite services – at the delivery point, and it has submitted that,
without the benefit of discovery or an admission by Defendants, it is impossible to determine
whether the Program was broadcast by cable or satellite signal. See Columbia Cable TV Co. v.
McCrary, 954 F. Supp. 124, 128 n.4 (D.S.C. 1996) (stating that the Fourth Circuit has not
addressed this issue but that other circuits have). The court recognizes that 47 U.S.C. § 605
would be inapplicable if the delivery were by cable; however, given the default, Plaintiff cannot
conduct discovery to determine the mode of transmission.
A higher range of damages is available in 47 U.S.C. § 605 than in 47 U.S.C. § 553.
Statutory damages under 47 U.S.C. § 605 range from $1,000 to $10,000 for each violation with a
$100,000 maximum enhancement for willfulness, while statutory damages under 47 U.S.C. §
553 range from $250 to $10,000 for all violations with a $50,000 maximum enhancement for
willfulness. 47 U.S.C. §§ 605(e)(3)(C)(i)(II), (e)(3)(C)(ii); 553(c)(3)(A)(ii), (c)(3)(B). In any
event, in light of the damages awarded herein, the distinction is without a difference in this case.
See Columbia Cable TV, 954 F.Supp. at 128 (noting that, even if 47 U.S.C. § 605 were
applicable to cable theft at point of delivery, under facts of the case, the court would award
damages “as close as permissible to the amount awarded under § 553”). In its Motion for Default
Judgment, Plaintiff seeks damages under both 47 U.S.C. § 605 and not to pursue its conversion
claim. (ECF No. 12 at 3 ¶ 5.) As such, the remainder of this Order focuses only on Plaintiff’s
claim and damages pursued under 47 U.S.C. § 605.
Liability under 47 U.S.C. § 605
The Communications Act prohibits the unauthorized reception, interception, publication,
or divulgence of interstate radio or wire communications. See 47 U.S.C. § 605(a). Specifically,
it provides, in pertinent part, that:
. . . no person receiving, assisting in receiving, transmitting, or
assisting in transmitting, 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, (1) to any person
other than the addressee, his agent or attorney. . . .
47 U.S.C. § 605(a).
In short, Plaintiff must demonstrate that Defendants intercepted the
Program’s signals and “divulged” or aired it to commercial patrons.
Plaintiff did not issue a license to Defendants to show the Program. Plaintiff submitted
proof, through an affidavit of a private investigator, who viewed the Program at Ultimate Jet-AWay Sportsbar & Lounge, located at 55 N. Williamsburg County Highway, Kingstree, South
Carolina 29556. (ECF No. 12-4.) This affidavit provides evidence that the Program was
displayed on four (4) screens at Ultimate Jet-A-Way Sportsbar & Lounge and provides details of
the portion of the Program the investigator watched. (Id.) Plaintiff having established that
Defendants violated 47 U.S.C. § 605(a), the court finds and concludes that judgment should be
entered in Plaintiff’s favor against the Defendants.
Damages under 47 U.S.C. § 605
The available penalties and remedies for violation of 47 U.S.C. § 605(a) include a private
civil action, as follows:
(B) The court-(i) may grant temporary and final injunctions on such terms as it
may deem reasonable to prevent or restrain violations of
subsection (a) of this section;
(ii) may award damages as described in subparagraph (C); and
(iii) 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). Plaintiff seeks damages, attorneys’ fees and costs.
Statutory Damages under 47 U.S.C. § 605
The statute sets out the following available damages:
(C)(i) Damages awarded by any court under this section shall be
computed, at the election of the aggrieved party, in accordance
with either of the following subclauses:
(I) the party aggrieved may recover the actual damages suffered by
him as a result of the violation and any profits of the violator that
are attributable to the violation which are not taken into account in
computing the actual damages; in determining the violator’s
profits, the party aggrieved shall be required to prove only the
violator’s gross revenue, and the violator shall be required to prove
his deductible expenses and the elements of profit attributable to
factors other than the violation; or
(II) the party aggrieved may recover an award of statutory
damages for each violation of subsection (a) of this section
involved in the action in a sum of not less than $1,000 or more
than $10,000, as the court considers just, and for each violation of
paragraph (4) of this subsection involved in the action an aggrieved
party may recover statutory damages in a sum not less than
$10,000, or more than $100,000, as the court considers just.
(ii) In any case in which the court finds that the violation was
committed willfully and for purposes of direct or indirect
commercial advantage or private financial gain, the court in its
discretion may increase the award of damages, whether actual or
statutory, by an amount of not more than $100,000 for each
violation of subsection (a) of this section. . . .
47 U.S.C. § 605(e)(3)(C).
Plaintiff has elected to recover statutory damages available under 47 U.S.C. §
605(e)(3)(C)(i)(II), rather than actual damages available under 47 U.S.C. § 605(e)(3)(C)(i)(I).
As Plaintiff points out, statutory damages are difficult to prove. Because of Defendants’ default,
Plaintiff has not been able to conduct discovery concerning, among other things, Defendants’
profits from the broadcast of the Program. Plaintiff seeks $10,000.00 in statutory damages,
which is the maximum available pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II), and it argues for
the maximum recoverable statutory damages to compensate Plaintiff for its damages and for the
deterrent effect it may have in minimizing such future conduct. In order to compensate Plaintiff
for its damages and for the deterrent effect it may have in minimizing such future conduct.
According to the private investigator’s affidavit, Ultimate Jet-A-Way Sportsbar &
Lounge has a capacity of 150 patrons. (ECF No. 12-4.) According to Plaintiff’s Affidavit in
Support of Motion for Default Judgment, the Rate Card shows that, based on a capacity of up to
150, the charge for the license fee for the Program was $3,000.00. (ECF No. 12-3 at 8.)
The court may award statutory damages between $1,000 to $10,000 in an amount “the
court considers just.” 47 U.S.C. § 605(e)(3)(C)(i)(II). Nationwide, 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) (court used a “per patron” amount). 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
Prods., Inc. v. Cornelius, No. 3:17-CV-0844-TLW, 2017 WL 3437325, at *4 (D.S.C Aug. 10,
2017) (court granted three times the license fee as statutory damages); Kingston Pay-Per-View,
Ltd. V. Gutierrez, 544 F. Supp. 2d 1179, 1184 (D. Colo. 2008), report and recommendation
adopted as modified sub nom. Kingvision Pay-Per-View, Ltd. V. Valles-Salcedo, No.
CIVA07CV00979RPMMEH, 2008 WL 583817 (D. Colo. Feb. 28, 2008) (court granted a flat
amount of $5,000.00 for defendant’s violation).
The Court notes that the president of the plaintiff indicated in his affidavit at paragraph
18 (ECF No. 12-3 at 6) that there were 4 television monitors and this was in a major
metropolitan area. Neither is accurate. Kingstree is hardly a major metropolitan area, and the
investigator’s affidavit indicates that there were 2 television monitors playing the event and at
most, 7 people were present with a $10.00 cover charge.
The Court concludes that statutory damages of $3,070.00 should be granted. Under the
facts and circumstances, the Court concludes that the amount of the license fee plus the gross
profit, when combined with enhanced damages and attorney fees reflected below is just
compensation and a fair reflection of damage.
Enhancement of Statutory Damages under 47 U.S.C. § 605
Plaintiff claims that Defendant Ultimate willfully violated 47 U.S.C. § 605(a) for
financial gain and seeks enhanced damages of $100,000, asserting that said Defendant
intentionally intercepted and showed the Program for financial gain or commercial advantage
and that said Defendant directly or indirectly committed wrongful acts and cannot hide behind a
corporate shield. The statute permits the court, in its discretion, to increase damages by up to
$100,000 per violation when the violation is “. . . committed willfully and for purposes of direct
or indirect commercial advantage or private financial gain [.]” 47 U.S.C. § 605(e)(3)(C)(ii). In
addition to said Defendant’s intentional acts, Plaintiff’s Affidavit in Support of its Motion for
Default Judgment asserts that the Program could not have been “mistakenly, innocently or
accidentally intercepted.” (ECF No. 12-3 at 3 ¶ 9.)
According to Plaintiff’s private investigator’s affidavit, Defendants did charge a cover
charge of $10.00 (ECF No. 12-4 at 17), which charge establishes a motive of private financial
gain. Defendant Ultimate’s conduct was intentional and willful, as it did not lawfully license the
Program from Plaintiff and exhibited it to patrons. (ECF Nos. 12-3 at 3 ¶ 7; 12-4 at 2.)
Although the court finds that Defendants’ violation was intentional and willful and
agrees that more than nominal damages should be awarded to deter future violations, the court
does not approve the maximum of statutory enhanced damages. It concludes that enhanced
damages in the amount of $1,000.00 (in addition to the $3,070.00 award discussed above and
the award of attorney’s fees and costs discussed below) should be granted.
Thus, the statutory and enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C) should
be awarded in the aggregate amount of $4,070.00
Attorneys’ Fees and Costs under 47 U.S.C. § 605
The Communications Act requires that the court award “full costs, including reasonable
attorneys’ fees to an aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). As the
rightful owner of the Program broadcast rights, Plaintiff is an aggrieved party which has
Request for Costs
Plaintiff submitted the affidavit of its South Carolina counsel in support of its request for
costs. The court grants to Plaintiff costs in the amount of $530.00 (filing fee, investigative
services and process service costs, etc.). (ECF No. 12-6 at 2 ¶ 5.)
Request for Attorneys’ Fees
The “full costs” to be awarded to a prevailing party pursuant to 47 U.S.C. § 605(e)
includes “reasonable attorneys’ fees.” In support of its request for attorneys’ fees, Plaintiff
submitted the Declarations of its counsel. (Id. at 1-2 ¶ 4.)
In this default matter, no one has appeared to challenge the attorneys’ fees, submitted by
Plaintiff. Nonetheless, in determining what constitutes a reasonable number of hours and the
appropriate hourly rates (i.e., in calculating the lodestar fee1), 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
“In cases in which the prevailing party does not obtain a common fund, but fees otherwise are
authorized by statute or by judicial doctrines, the primary method used by courts in assessing
attorney-fee awards is referred to as the lodestar approach. Under the lodestar calculation,
petitioning attorneys must present detailed time records of the hours expended by each lawyer
indicating the nature of the particular work done by each. The failure to do so may lead to the
denial or reduction of the award.”
§ 2675.2 Particular Items of Costs – Attorney’s Fees: The Lodestar Approach, 10 Fed. Prac. &
Proc. Civ. § 2675.2 (3d ed.)
within the legal community in which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and (12) attorneys’ fees awarded in
similar cases. Barber v. 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. See E.E.O.C. v. Servo News Co., 898 F.2d 958, 965
(4th Cir. 1990). (“[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.”) 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)). Further, this court’s Local Rule 54.02(A) provides that attorneys’ fee petitions must
comply with Barber “and shall state any exceptional circumstances and the ability of the party
to pay the fee.” Local Rule 54.02(A) (D.S.C.).
The information Plaintiff provided, coupled with the court’s knowledge of rates in work
of this type in this District, supports an attorneys’ fee in the amount of $1,310.75. 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 attorneys’ fees and costs in the amount
of $1,840.75 ($530.00 costs plus $1,310.75 attorneys’ fees).
IT IS ORDERED that a judgment in favor of Plaintiff be entered against Defendant,
Ultimate Jet-A-Way Sportsbar & Lounge, Inc., in the amount of $4,070.00 in statutory and
enhanced damages plus $1,840.75 in attorney’s fees and costs. Thus, the total judgment is
October 31, 2017
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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