to a sum of not less than $ 250." 47 U.S.C. § 605(e)(3)(C)(iii).
The record contains little evidence concerning damages. Weber observed 56 persons in the tavern at the time, which number Defendant claims is his maximum legal capacity. He offered no documentary evidence on this point. Defendant further claims that the only television near the bar is a nineteen-inch (19") model; a twenty-inch (20") model is located in the dining area. From these facts, Defendant observes that his is not a sports bar with lots of large television screens, and apparently by inference, reasons that the size of his business should reduce the degree of the violation and/or diminish the amount of the damages.
Unlike Cablevision Systems Inc. v. Doudlesox, Inc., CV 89-0500 (DFJ) (E.D.N.Y. Aug. 24, 1989) (discussed in Maxie's North Shore etc., supra, 1991 Westlaw 58350 at *2 and text attached to the report and recommendation in Primetime 24 Joint Venture v. Telecable Nacional, 1990 U.S. Dist. LEXIS 20034, Civ. Act. No. 90-1941 (D.N.J. Oct. 10, 1990) (adopting order at 1990 U.S. Dist. LEXIS 19204 (D.N.J. Nov. 8, 1990)), Plaintiff has not submitted any evidence regarding the fee Defendant should have paid. In light of Doudlesox, in which Magistrate Judge Jordan awarded $ 30 per patron for a 1988 violation, I am persuaded that $ 50 per patron in 1993 is eminently reasonable. Cf. Comcast Cablevision v. Allen, 1993 U.S. Dist. LEXIS 17141, 93-C V-1220 (E.D. Pa. Dec. 3, 1993) (1993 Westlaw 501599 at *2-*3) (1991 U.S. Dist. LEXIS 17141). Accordingly, as I am not persuaded that Defendant's violation was innocent, I respectfully recommend statutory damages in the sum of $ 2,800.
With respect to the award for costs, including reasonable attorney's fees, Plaintiff has submitted time sheets and billing statements, collectively Jung Aff. Exh. A, in support of a request for $ 3,600. I have examined these documents and have concluded that Plaintiff is entitled to: 28.25 hours at $ 100/hour ($ 2,825) for the time and effort of William B. Jung, Esq.;
6.5 hours at $ 150/hour ($ 975) for the time and effort of Daniel J. Lefkowitz, Esq.; 3 hours at $ 65/hour ($ 195) for the time and effort of Wayne R. Louis; and disbursements of $ 155 (filing fee and service of process fee).
Based on the foregoing, I respectfully recommend that Plaintiff is entitled to damages totaling $ 6,755 against 45 Midland Enterprises, Inc. d/b/a J.B. Coughlans.
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Rule 72(b), Fed.R.Civ.P. the parties shall have ten (10) days, plus an additional three (3) days, pursuant to Rule 6(e), Fed.R.Civ.P., or a total of thirteen (13) working days, (see Rule 6(a), Fed.R.Civ.P.), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Vincent L. Broderick, at the United States Courthouse, 101 East Post Road, White Plains, New York, 10601, and to the chambers of the undersigned, at the said Courthouse.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order or judgment that will be entered by Judge Broderick. See Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of H.H.S., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair, Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Requests for extensions of time to file objections must be made to Judge Broderick and should not be made to the undersigned.
Dated: June 2, 1994
White Plains, New York
Mark D. Fox
UNITED STATES MAGISTRATE JUDGE