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TIME WARNER CABLE v. GOOGIES LUNCHEONETTE

December 21, 1999

TIME WARNER CABLE OF NEW YORK CITY, A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P., PLAINTIFF,
v.
GOOGIES LUNCHEONETTE, INC. D/B/A GOOGIES, 1590 2ND AVENUE CORP. D/B/A EASY STREET, V.M. DELGROSS RESTAURANT, INC. D/B/A/ MARYANN'S, DIM SUM CAFE OF NEW YORK, INC. D/B/A RANPAI, NEW YORK GRILL, INC. D/B/A SUTTON GRILLE, VELKONEL RESTAURANT, INC. D/B/A CAFE 31, ANCHOR BAR, SHANGRILA GRILL, INC. D/B/A SHANGRI-LA BAR, AND R BAR OF MANHATTAN, INC. D/B/A R BAR, DEFENDANTS.



The opinion of the court was delivered by: Keenan, District Judge.

ORDER

This case was referred to Magistrate Judge Sharon E. Grubin for a determination of damages, attorney's fees, and costs after this Court entered default judgments and permanent injunctions against defendants Dim Sum Cafe of New York, Inc., Shangrila Grill, Inc., and R Bar of Manhattan, Inc. The Court has received Judge Grubin's Report and Recommendation, dated November 8, 1999, recommending that judgment be entered against Dim Sum Cafe of New York, Inc. for $4,000, together with $635 in attorney's fees, against Shangrila Grill, Inc. for $15,000, together with $635 in attorney's fees and costs, and against R Bar of Manhattan, Inc. for $9,000, together with $635 in attorney's fees and costs. As indicated by Judge Grubin in her Report, pursuant to Fed.R.Civ.P. 72, the parties had ten days in which to file objections to the November 8 Report. The Court has received no objections to the November 8 Report. Upon a de novo review of Judge Grubin's Report and Recommendation, it is hereby ordered that Judge Grubin's November 8 Report and Recommendation is adopted as the opinion of this Court.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE JOHN F. KEENAN

This case, with jurisdiction founded on the Cable Communications Policy Act of 1934 § 2, 47 U.S.C. § 553, and the Communications Act of 1934 § 705, 47 U.S.C. § 605, was referred to me for a determination of damages, attorney's fees and costs after entry by your Honor of default judgments and permanent injunctions against defendants Dim Sum Cafe of New York, Inc. (d/b/a Ranpai), Shangrila Grill, Inc. (d/b/a Shangri-La Bar), and R Bar of Manhattan, Inc. (d/b/a R Bar), upon their failure to appear herein. All other defendants have now been dismissed. Plaintiff has submitted sworn testimony and documentary evidence on damages against the defaulting defendants. These defendants have not made any submissions or contacted the court at any time, despite notice and opportunity to do so.

A default judgment entered on well-pleaded allegations of a complaint establishes a defendant's liability. The allegations are to be accepted as true, except those relating to the amount of damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995); Broadcast Music, Inc. v. R Bar of Manhattan, Inc., 919 F. Supp. 656, 658 (S.D.N.Y. 1996); Lawrence Fund, L.L.P. v. Helionetics, Inc., No. 95 Civ. 1005(RPP)(SEG), 1996 WL 352911, at *1 (S.D.N.Y. June 25, 1996). Set forth below are my findings of fact and conclusions of law.

I.

Plaintiff Time Warner Cable of New York City ("Time Warner") operates pursuant to franchise a cable television system in Manhattan, where defendant Dim Sum Cafe of New York, Inc. operates Ranpai, defendant Shangrila Grill, Inc. operates Shangri-La Bar, and defendant R Bar of Manhattan, Inc. operates R Bar. (Complaint ¶¶ 4, 8, 12-14; Affidavit of Thomas Allen, sworn to August 15, 1997 ("Allen Aff.") ¶ 2.)

Plaintiff's operations have been described many times and need not be set forth herein. See, e.g., Time Warner Cable of New York City v. Barnes, 13 F. Supp.2d 543, 544-46 (S.D.N.Y. 1998); Time Warner Cable of New York City v. Domsky, 96 Civ. 6851(DAB)(RLE), 1997 U.S. Dist. LEXIS 13505, at *2-*7 (S.D.N Y Sept. 2, 1997); Time Warner Cable of New York City v. Cable Box Wholesalers, Inc., 920 F. Supp. 1048, 1049 (D.Ariz. 1996); Time Warner Cable of New York City v. Freedom Electronics, Inc., 897 F. Supp. 1454, 1455-56 (S.D.Fla. 1995); Time Warner Cable of New York City v. Rivera, No. 94 CV 2339(JS), 1995 WL 362429, at *1 (E.D.N.Y. June 8, 1995). Briefly, plaintiff offers its cable television services to residential and commercial locations which subscribe to it. The programming consists of different tiers of service. For a regular monthly fee an individual receives "standard" service, and for an additional monthly charge an individual can subscribe to "premium" programming services such as Cinemax or Home Box Office. In addition, plaintiff offers "Pay-Per-View" programming, whereby a subscriber receives individual entertainment or sporting events for a specific fee for that event beyond the subscriber's regular monthly rate. (Allen Aff. ¶¶ 3-4.)

Plaintiff offered a boxing match between Mike Tyson and Peter McNeeley (the "match") as a "Pay-Per-View" event on August 19, 1995. (Complaint ¶¶ 21-22; Allen Aff. ¶ 14.) The charge to residential subscribers for this fight was $49.95. ("Allen Aff." ¶ 13.) Commercial establishments were charged various amounts based on occupancy rates; the cost for such events usually ranges from $500 to $1,500. (Allen Aff. ¶ 13.) Commercial establishments generally wish to exhibit such events to attract customers. (Complaint ¶ 23.)

To ensure that only subscribers obtain access to services, Time Warner scrambles its signal. Subscribers are provided with a converter, which electronically decodes or "de-scrambles" the signal for the specific programming to which that subscriber is entitled (Complaint ¶¶ 18, 20; Allen Aff. ¶¶ 8-11.) However, there are decoding devices that persons can unlawfully obtain and install to unscramble Time Warner's signal without authorization. (Allen Aff. ¶ 12.)

An investigator for Time Warner was in Ranpai on August 19, 1995 and saw the match on television monitors there. There were twenty patrons watching it. Ranpai, however, was a subscriber only for standard service from plaintiff. It had not paid for and was not authorized to receive the match. (Id. ¶ 16.) Another investigator saw the match being broadcast at the Shangri-La Bar, where it was viewed by sixty patrons. Although the Shangri-La Bar had had an account with plaintiff, it had been terminated early in 1995 for failure to pay and was not authorized to receive any service. (Id. ¶ 17.) An investigator also saw the match being shown in the R Bar and viewed by twenty patrons. R Bar had never subscribed to plaintiff's cable services. (Id. ¶ 18.)

Based on these facts, plaintiff has shown and the three defendants, by their default, have admitted that each defendant willfully tampered ...


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