(3) whether a meritorious defense is presented. Enron Oil Corp., 10 F.3d at 96.
In this case, Plaintiff alleges that the Defendant's conduct was wilful. However, there is no readily apparent prejudice that the Plaintiff would suffer if the default was set aside, nor has the Defendant presented a defense which the Court can evaluate on the merits. After carefully considering all six factors outlined above, the Court finds that Plaintiff's motion for a judgment by default against Casablanca's Restaurant should be granted.
Having determined that Plaintiff is entitled to judgment by default, the Court must now address the issue of damages. Rule 54(c) provides: "[a] judgment by default, shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." Pursuant to 47 U.S.C. § 605(e)(3)(c)(I) & (II), an aggrieved party may recover an award of statutory damages for each violation in a sum not less than $ 1,000 or more than $ 10,000 as the court considers just. Additionally under 47 U.S.C. § 605(e)(3)(c)(ii) the court may increase the award of damages to an amount not more than $ 100,000 for each violation, if the Court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain.
In its complaint, Plaintiff alleges that the Defendants' conduct was wilful, and seeks a total of $ 210,000 in damages, attorney's fees, and costs. However, as stated, in this motion Plaintiff seeks only $ 11,000 in statutory damages, and $ 1,175 in attorney's fees and costs, against Casablanca's Restaurant. After carefully considering the matter, the Court finds that Plaintiff's request for $ 11,000 in statutory damages is appropriate, and that Plaintiffs request for $ 1,175 in attorney fees and costs is reasonable.
In light of the above, it is hereby
ORDERED that the Clerk's entry of default as to Defendant Mohammed B. Abu Zahri is VACATED; and it is further
ORDERED that Plaintiff's motion for judgment by default as to Defendant Mohammed B. Abu Zahri is DENIED; and it is further
ORDERED that Plaintiff's motion for a judgment by default against Defendant Casablanca's Restaurant in the amount of $ 12,175.00, plus pre-judgment interest from August 19, 1995 to the present is GRANTED, and the Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
Dated: August 1, 1997
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge
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