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TOP RANK, INC. v. ORTIZ

March 27, 2003

TOP RANK, INC., PLAINTIFF,
v.
FREDDIE ORTIZ, D/B/A UNIQUE BARBER SHOP, AND FREDDIE ORTIZ, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE WILLIAM H. PAULEY III

I. Introduction

In this action, plaintiff Top Rank, Inc. ("Top Rank") alleges that defendant Freddie Ortiz ("Ortiz"), individually and doing business as the Unique Barber Shop, illegally intercepted cable television programming signals, in violation of the Cable Communications Policy Act ("Communications Act"), 47 U.S.C. § 553(a)(1) and 605(a), and the Copyright Act of 1976 ("Copyright Act"), 17 U.S.C. § 111(b). Following Ortiz's failure to answer or otherwise respond to the complaint, Your Honor entered an Order of Default and referred the matter to me to conduct an inquest regarding the damages, if any, to be awarded to Top Rank. (Docket Nos. 11-12).

By order dated April 3, 2002, I directed Top Rank to serve and file an inquest memorandum by May 2, 2002, setting forth its proof of damages, as well as proposed findings of fact and conclusions of law. (Docket N o. 13). Ortiz w as given until May 16, 2002, to file opposition papers. (Id.). By letter dated February 12, 2002, Top Rank informed the Court that instead of filing an inquest memorandum, it planned to rely on documents previously submitted to the Court. (Letter to the Court from Christopher J. Fitzpatrick, Esq., dated February 12, 2002 ("Fitzpatrick Letter")). Thereafter, however, Ortiz failed to file any opposition papers or contact this Court.

For the reasons set forth below, I recommend that Top Rank be awarded judgment in the amount of $5,591.35, consisting of statutory damages in the amount of $3,500.00, attorney's fees in the amount of $1,881.35, and costs in the amount of $210.00.

II. Standard of Review

In light of Ortiz's default, Top Rank's well-pleaded allegations concerning issues other than damages must be accepted as true. See Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Time Warner Cable of New York City v. Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998); Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 111 (E.D.N.Y. 1997).

Additionally, although a plaintiff seeking to recover damages against a defaulting defendant must prove its claim through the submission of evidence, the Court need not hold a hearing as long as it has (i) determined the proper rule for calculating damages on the claim, see Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999), and (ii) the plaintiff's evidence establishes, with reasonable certainty, the basis for the damages specified in the default judgment. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); see also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993) (inquest on damages without hearing improper where based upon "single affidavit only partially based upon real numbers").

III. Facts

On the basis of the complaint and Top Rank's inquest papers, I find that the facts are as follows:

Top Rank is a corporation organized and existing under the laws of Nevada, with its principal place of business in Las Vegas, Nevada. (Compl. ¶ 4). Defendant Ortiz is the owner and/or manager of the Unique Barber Shop, a commercial establishment located at 342 East 144th Street in the Bronx. (Id. ¶¶ 5-6).
Top Rank owns the copyrights and other exclusive rights to promote, produce, distribute, and license private, commercial-free television programming. (Id. ¶ 7). This programming is licensed on a pay-per-view and closed-circuit basis by Top Rank's authorized distributors. (Id. ¶ 9). The distributors pay Top Rank a fee for each residential or commercial customer who subscribes to its programming. (Id. ¶ 8). Top Rank uses an electronic device to scramble or encrypt its satellite transmissions of the programs and authorizes those entitled to receive the programming to unscramble and view the encrypted signal. (Id. ¶ 10).

On September 18, 1998, Ortiz, without authorization, intercepted and received the transmission of a Top Rank pay-per-view telecast featuring a boxing match between Oscar De La Hoya and Julio Cesar Chavez. (Id. ΒΆ 1; Pl.'s Mem. of L. at 3). Approximately fifteen people were inside the Unique Barber Shop watching this program on a single ...


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