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KINGVISION PAY-PER-VIEW LTD. v. CARDONA

June 30, 2004.

KINGVISION PAY-PER-VIEW LTD. as Broadcast Licensee of the March 1, 2003 Jones/Ruiz, Program, Plaintiff,
v.
CARMEN CARDONA, et. ano, Defendants.



The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge

REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS[fn*]
[fn*] This Report and Recommendation was prepared with the assistance of Laureve Blackstone, a first-year student at Brooklyn Law School.

I. Introduction

In this action, plaintiff Kingvision Pay-Per-View, Ltd. ("Kingvision") alleges that, during the early morning hours of March 2, 2003, defendant Los Amigos Del Encanto Corp., d/b/a Los Amigos Del Encanto, a/k/a Amigo's Del Encanto Sports Bar ("Los Amigos"), and its principal, defendant Carmen Cardona ("Cardona"), illegally intercepted satellite signals that were being used by Kingvision to transmit a boxing match between two boxers named Jones and Ruiz (the "Program"), thereby violating the Cable Communications Policy Act ("Communications Act"), as amended, 47 U.S.C. § 553(a)(1), 605(a) and 605(e)(4). On November 19, 2003, Kingvision voluntarily discontinued its action against Cardona insofar as she was named in her "individual capacity." (See Docket No. 8).*fn1 Thereafter, a default judgment was entered against Los Amigos, (Docket No. 9), and Your Honor referred the matter to me for an inquest. (Docket No. 12).

  By order dated January 7, 2004, I directed Kingvision to serve and file an inquest memorandum by February 9, 2004, accompanied by supporting affidavits and exhibits, setting forth its proof of damages, as well as proposed findings of fact and conclusions of law. (Docket No. 13). The order directed Los Amigos to respond by February 23, 2004. (Id.). While Kingvision's papers were timely filed, Los Amigos did not submit any opposition papers.

  For the reasons set forth below, I recommend that Kingvision be awarded judgment against defendant Los Amigos in the amount of $12,165 consisting of $12,000 in statutory damages and $165 in costs.

  II. Standard of Review

  In light of Los Amigos' default, Kingvision'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 (i) it has 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. Factual Findings

  A. Jurisdiction

  This action arises under 47 U.S.C. § 553 and 605. The Court therefore has jurisdiction pursuant to 28 U.S.C. § 1331.

  B. Los Amigos' Illegal Broadcast of the Program

  Kingvision had a license to distribute the Program on March 1, 2003, via closed-circuit television and encrypted satellite signal. (Compl. ¶ 12). Among the rights granted to Kingvision was the right to allow other entities to broadcast the Program. (Id. ¶ 13). During the early morning hours of March 2, 2003, Kingvision's auditor, Keith Rauscher, visited the Los Amigos facility. (See "Piracy" Aff. of Keith Rauscher, sworn to on Mar. 7, 2003, at 1). Rauscher observed about twenty customers at Los Amigos who ...


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