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GARDEN CITY BOXING CLUB INC. v. AYISAH

April 28, 2004.

GARDEN CITY BOXING CLUB, INC., Plaintiff; -against- OBAA AYISAH, Individually, and d/b/a/ OBAA KORYOE WEST AFRICAN RESTAURANT a/k/a OBAA KORYOE RESTAURANT, and OBAA KORYOE WEST AFRICAN RESTAURANT a/k/a OBAA KORYOE RESTAURANT; MARIA ARGENTINA CONCEPCION, Individually, and as officer, director, shareholder and/or principal of OEIMPUS RESTAURANT INC. d/b/a OEYMPUS RESTAURANT, and OLIMPUS RESTAURANT INC. d/b/a OLYMPUS RESTAURANT; AFRODISIO ROYER and ISAIAS B. MORALES, Individually, and d/b/a ISAIAS AND ROYER BARBER SHOP UNISEX a/k/a ROYER & ROYER BARBER SHOP, and ISAIAS AND ROYER BARBER SHOP UNISEX a/k/a ROYER & ROYER BARBER SHOP; ISOLINA PEREZ, Individually, and as officer, director, shareholder and/or principal of J.G. LAUNDROMAT CORP. and 3440 LAUNDROMAT CORP. d/b/a LAUNDROMAT AND CLEANERS a/k/a THE CLEANING MACHINE, and J.G. LAUNDROMAT CORP. and 3440 LAUNDROMAT CORP. d/b/a/ LAUNDROMAT AND CLEANERS a/k/a THE CLEANING MACHINE; SHIRLEY BROWN, Individually, and as officer, director, shareholder and/or principal of SCHAROND ENTERTAINMENT d/b/a UPPER MANHATTAN, and SCHAROND ENTERTAINMENT d/b/a UPPER MANHATTAN; Defendants


The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

REPORT AND RECOMMENDATION

INTRODUCTION

On August 21, 2002, plaintiff Garden City Boxing Club, Inc. ("Garden City" or "Plaintiff) filed a Complaint with this Court, alleging violations of the Communications Act of 1934, 47 U.S.C. § 605 (1996), by a number of defendants, including Olimpus Restaurant Inc., d/b/a Olympus Restaurant ("Olympus") and Maria Argentina Concepcion ("Concepcion"), individually, and as officer, director, shareholder and/or principal of Olympus. (Dkt. 1.) Unlike the other named defendants in the case, Olympus and Concepcion have not appeared, answered, or otherwise moved with respect to the Complaint. The other named defendants are currently in litigation or have settled with Plaintiff. (See Dkt.)

  On December 30, 2002, this Court (Daniels, J.) granted a default judgment against Olympus and Concepcion (see Dkt. 16), and referred the matter to me to conduct an inquest and to report and recommend concerning Garden City's damages. For the reasons that follow, I recommend that Garden City be awarded damages plus costs, as calculated below, on the default judgment against these defendants.

  BACKGROUND

  As alleged in Garden City's Complaint ("Compl."), and supported by the documentation submitted by Garden City in support of its Proposed Findings of Fact and Conclusions of Law ("Proposed Findings"), the relevant facts are as follows:

  Garden City is a California corporation with its principal place of business located at 2380 South Bascom Avenue, Suite 200, Campbell, CA 95008. (See Compl. ¶ 5.) Defendant Olympus is a business with principal place of business located at 84-86 Nagle Avenue, New York, N.Y. 10040. (See id. ¶ 12.) Defendant Concepcion, an alleged operator of Olympus, is a resident of New York (See id. ¶ 11; Proposed Findings at 1.)

  On June 8, 2002, boxers Lennox Lewis and Mike Tyson were scheduled to appear in a prizefight. (See Compl. ¶ 33.) Garden City obtained the right to distribute the Lewis/Tyson fight live to establishments in New York that wished to exhibit the fight publicly to their patrons. (See id. ¶ 34.) Garden City then hired independent investigators to identify establishments that exhibited the fight without first securing from Garden City the right to do so. (See Affidavit of Joseph Gagliardi, sworn to Oct. 17, 2002 ("Gagliardi Aff."), ¶ 7.)

  One such investigator, Timothy Rielly ("Rielly"), visited Olympus at approximately 11:55 p.m. on the night of the fight. (See Affidavit of Timothy Rielly, sworn to June 13, 2002 ("Rielly Aff."), ¶ 1.) Rielly entered Olympus without paying any entrance fee (see id.), joining approximately 60 people in the establishment. (See id. ¶ 3.) Upon entering Olympus, Rielly saw, over the bar, a 32-inch television set, on which the boxing match was being shown. (See id. ¶ 1.) According to Garden City, however, it had never received a payment from Olympus to secure broadcast rights to the match, and it had never given Olympus authorization to exhibit the match. (See Compl. ¶ 36.)

  On August 21, 2002, having discovered Olympus's unauthorized use of the fight broadcast, Garden City filed this action, alleging that, by exhibiting the broadcast without permission, Olympus and Concepcion had violated the Communications Act of 1934. (See id. ¶ 39.) These defendants failed to respond to the Complaint, and, as noted above, a default judgment was entered against them. (See Dkt. 16.) Thereafter, Judge Daniels referred the matter to me for the purpose of conducting an inquest concerning Garden City's alleged damages. To date, neither Olympus nor Concepcion has responded to Garden City's submissions with respect to its claimed damages, nor have these defendants requested a hearing with respect to damages. I therefore issue this report and recommendation based solely on Garden City's submissions.

  DISCUSSION

  In its Proposed Findings, Garden City has requested an award of $110,000 against Olympus and Concepcion, plus interest at 9% per annum from the date of the alleged violation. Garden City has further requested reimbursement for legal and investigative costs totaling $241.14 from Olympus and $194.14 from Concepcion. (See Affidavit of Julie Cohen Lonstein, sworn to Nov. 12, 2002 ("Lonstein Aff."), ¶ 30.) Without a response from the defendants as to the damages issue, this Court must assess whether Garden City has sufficiently demonstrated that it is entitled to the amounts in question.

  Although "a default judgment entered on well-pleaded allegations in a complaint establishes defendant's liability," it does not reach the issue of damages. Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995) (quoting Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363 (1973)). A plaintiff must therefore substantiate a claim with evidence to prove the extent of damages. See Trehan v. Von Tarkanyi, 63 B.R. 1001, 1008 n.12 (S.D.N.Y. 1986) (plaintiff must introduce evidence to prove damages suffered and the court will then determine whether the relief flows from the facts) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)). Though courts may hold hearings to assess these damages, a hearing is not required where the plaintiff provides the court with evidence sufficient to permit a damages calculation. See Fed.R.Civ.P. 55(b)(2) (a court may conduct hearings on damages "as it deems necessary and proper"); see also Tamarin v. Adam Caterers, Inc., 13 ...


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