JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court on a motion to dismiss filed by Defendant Antonio Rameriz ("Rameriz"). [Doc. 36.] Rameriz contends he is neither the owner nor the operator of Defendant Latin America Club ("Latin America Club"); he is merely the owner of the building where Latin America Club's business, Acapulco Cafe, is located. [Id.] The Court construes the motion to be one pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving a pro se litigant are referred to a United States Magistrate Judge for consideration.
Plaintiff filed this action on November 9, 2011, pursuant to the Communications Act of 1934 ("the Communications Act"), as amended, 47 U.S.C. § 605, and the Cable & Television Consumer Protection Competition Act of 1992 ("the Cable and Television Act"), as amended, 47 U.S.C. § 553, alleging Latin American Club
On March 27, 2012, Plaintiff filed a response in opposition to Defendant's motion to dismiss. [Doc. 40.] Plaintiff submitted a copy from the online database of Latin America Club's registration with the South Carolina Secretary of State, which lists Rameriz as the registered agent of Latin American Club. [Doc. 40-1.] Plaintiff also submitted records from the South Carolina Department of Revenue for an alcoholic beverage license for Latin America Club; one page of the records is a consent and waiver form that was required to be completed by the business's principals, and Rameriz completed the form. [Doc. 40-2].
Rameriz is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. However, the mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the pro se party could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the pro se party's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle her to relief. Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Further, on a motion pursuant to Rule 12(b)(6), if matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (citing Twombly, 550 U.S. at 556)); E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000) (noting that court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments"); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
The Cable and Television Act prohibits "[u]nauthorized interception or receipt or assistance in interception or receiving service," including intercepting, receiving, or assisting in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as otherwise specifically authorized by law. 47 U.S.C. § 553(a). The statute also provides a private right of action for persons aggrieved by violations of its provisions, including actions for damages. Id. § 533(c). The Communications Act provides 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." 47 U.S.C. § 605(a). Section 605(e)(3) provides for a private right of action for violations, including recovery of actual or statutory damages.
Plaintiff alleges that, upon information and belief, Rameriz is "the president, owner, member, principal, alter ego, manager, agent, and/or other representative of the Defendant, Latin American Club, and that he is vicariously liable in his individual capacity for the civil wrongs of said corporation and/or said establishment." [Doc. 1 ¶ 8.] Plaintiff further alleges Rameriz "did unlawfully publish, divulge and exhibit the Program at the time of its transmission at the address of the establishment." [Id. ¶ 15.] Plaintiff also alleges Rameriz "had the right and ability to supervise the said misconduct and had an obvious and direct financial interest in the misconduct." [Id. ¶ 17.] Plaintiff alleges Rameriz's actions violated 47 U.S.C. §§ 553 and 605. [Id. ¶¶ 20, 25.]
Viewing the allegations in a light most favorable to Plaintiff, but also liberally construing Rameriz's arguments, the Court finds Plaintiff has sufficiently stated a claim against Rameriz for violation of the Communications Act and the Cable and Television Act. Specifically, upon consideration of the public records
[Doc. 40-2 at 3.] The only signature on the Latin American Club's application for an alcohol license is that of Rameriz, which contradicts his contention that he is merely the building owner. Accordingly, the Court finds Plaintiff has pled sufficient facts to state a claim against Rameriz under the Communications Act and the Cable and Television Act, and therefore, the Complaint should not be dismissed at this time.
Wherefore, based upon the foregoing, the Court recommends Rameriz's motion to dismiss be DENIED.
IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
