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