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CABLEVISION SYSTEMS NEW YORK CITY CORPORATION v. TORRES

September 9, 2003

CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, PLAINTIFF, AGAINST JOSE TORRES, DEFENDANT


The opinion of the court was delivered by: Andrew Peck, Magistrate Judge

OPINION AND ORDER

Plaintiff Cablevision Systems New York City Corporation ("Cablevision") brings this action under the Federal Communications Act of 1934, 47 U.S.C. § 553(a)(1) and 605(a), against pro se defendant Jose Torres for purchasing, distributing, and using pirate cable television descramblers. (Compl. ¶¶ 1, 18-21.) Cablevision has moved for default judgment, injunctive relief, statutory damages, attorney's fees, and costs. (Dkt. No. 21.) For the reasons set forth below, judgment is entered for Cablevision against Torres on default for statutory damages of $171,000, attorney's fees of $5,717.00, and disbursements of $630.15, for a total of $177,347.15, and the Court also orders permanent injunctive relief. [ Page 2]

FACTS

The Complaint

The complaint alleges that Torres violated the Federal Communications Act of 1934, 47 U.S.C. § 553(a)(1) and 47 U.S.C. § 605(a), by the purchase, sale, and distribution of pirate cable television descramblers*fn1 from Whitestar/Intek Electronics "with the specific intent and knowledge that such devices would be used to descramble, decode, and thereby provide reception of the scrambled premium and pay per view programming services of Cablevision to persons who were neither paying for those services nor authorized by plaintiff to receive such programming." (Dkt. No. 1: Compl. ¶ 18.) Cablevision's Motion for Default and Injunctive Relief specifically alleges that Torres purchased eighteen cable descramblers, resold seventeen descramblers, and kept one for personal use. (Dkt. No. 21: Cablevision Br. at 9; Dkt. No. 21: Kempton Aff. ¶ 21.)

Procedural Background

Cablevision filed its complaint on September 20, 2002, and served Torres on October 16, 2002. (Dkt. No. 5: 10/16/02 Aff. of Service.) After Torres failed to respond to the complaint, Cablevision moved for default judgment, which Judge Stein granted on or about December 30, 2002. (Dkt. No. 21: Cablevision Br. at 2; see also Dkt. No. 6: Cablevision 12/6/02 Default Motion & annexed Clerk's Certificate of Default & 12/30/02 Default Judgment signed by Judge Stein.) [ Page 3]

In a letter to Judge Stein dated February 8, 2003, Torres explained that he had been in Puerto Rico from November 15, 2002 through January 31, 2003. (Dkt. No. 11: 2/8/03 Letter at 1; see also Dkt. No. 21: Sullivan Aff. ¶ 4.)

In a letter to the Court dated February 20, 2003, Cablevision acknowledged Torres' February 8, 2003 letter to Judge Stein and withdrew its request for a default judgment. (Dkt. No. 9: 2/24/03 Memo Endorsed Order.) Judge Stein ordered Torres to respond to the complaint by March 21, 2003 and scheduled a pretrial conference for that date. (Id.) At Cablevision's request, Judge Stein also withdrew Cablevision's motion for default judgment. (Dkt. No. 10:2/24/03 Order.)

On March 21, 2003, Judge Stein held a pretrial conference, which both Cablevision's counsel and defendant Torres attended. (Dkt. No. 13: 3/24/03 Order.) Judge Stein scheduled a May 9, 2003 status conference and set the discovery deadline for June 20, 2003. (Id.) According to Cablevision's letter to the Court dated May 5, 2003, Torres did not respond to Cablevision's discovery requests and Torres did not appear for his scheduled deposition on May 2, 2003. (Dkt. No. 14: 5/5/03 Letter.) Judge Stein ordered Torres to respond to Cablevision's discovery requests by May 23, 2003, to appear for deposition at Cablevision's counsel's office on May 29, 2003, and adjourned the status conference to May 21, 2003. (Dkt. No. 14: 5/6/03 Order.) At a conference attended by Cablevision's counsel and defendant Torres on May 21, 2003, Judge Stein granted Torres a further extension to respond to Cablevision's discovery requests by June 20, 2003, and ordered that he appear for his deposition at Cablevision's counsel's office on July 11, 2003 at 10:00 a.m., and reset the discovery deadline for July 24, 2003. (Dkt. No. 17: 5/23/03 Order.) At that conference, the [ Page 4]

parties also consented to proceed before a Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16: § 636(c) Consent & Order.)

On May 28, 2003, I mailed an order scheduling a status conference for July 14, 2003 at 5:30 p.m. and a copy of my individual rules to Torres by regular and certified mail. (DktNo. 18: 5/28/03 Order.) The certified copy was returned unclaimed, but the regular mail copy was not returned.

Torres still (1) has failed to file an answer to Cablevision's complaint; (2) did not attended his court-ordered deposition on July 11, 2003, nor contact Cablevision's counsel's office to explain his non-appearance; (3) failed to respond to discovery; and (4) failed to appear at the July 14, 2003 status conference before this Court, of which he had received notice. (Dkt. No. 21: Sullivan Aff. ¶ 6; Dkt. No. 21, Ex. F: 7/14/03 Hearing Transcript ["H."] 1-2.)

On or about July 31, 2003, Cablevision's counsel served Torres by first class mail, certified mail, and Federal Express with (1) the July 11, 2003 deposition transcript, recording Torres' non-appearance and (2) the transcript of the July 14, 2003 status conference before this Court that Torres failed to attend. (Dkt. No. 22: Sullivan 7/31/03 Aff. ΒΆ 2.) Also, on or about July 30, 2003, Cablevision served its renewed motion for a default ...


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