The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B.
[fn*] This Report and Recommendation was prepared with the
assistance of Laureve Blackstone, a first-year student at
Brooklyn Law School.
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
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.
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").
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 ...