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KINGVISION PAY-PER-VIEW, LTD. v. MEDRANO

July 12, 2004.

KINGVISION PAY-PER-VIEW, LTD., as Broadcast Licensee of the December 2, 2000 Trinidad/Vargas Program, Plaintiff,
v.
LUIS A. MEDRANO, ET Al., Defendants.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  In this action, Kingvision Pay-Per-View, Ltd. ("Kingvision") alleges that, on December 2, 2000, defendants By Choice Inc. d\b\a Garden of Roses a\k\a By Choice Bar & Restaurant ("By Choice"); Bernice Corral ("Corral"), individually, and as an officer, director, shareholder and/or principal of Chuleria's Den, Inc. d\b\a Chuleria's Den a\k\a Chuleria's Den/Hair Salon ("Chuleria's Den"); Chuleria's Den; Rosa Bassas ("Bassas"), individually and d\b\a Da Fifth a\k\a Da Fifth Sports ("Da Fifth"); Da Fifth; Helen Romero ("H. Romero") and Franklin Romero ("F. Romero"), individually and as officers, directors, shareholders and/or principals of Hair Konnexion Unisex, Inc. d\b\a Hair Konnexion Unisex ("Hair Konnexion"); Hair Konnexion; Joe's Barber Shop ("Joe's Barber"); Kim Weston ("Weston"), individually and d\b\a Palm Club a\k\a La Palm Club ("Palm Club"); Palm Club; Billiaids Club a\k\a Billiards Club ("Billiards Club"); Palermo Sports Bar & Café, Inc. d\b\a Palermo Sports Bar & Café ("Palermo Café"); Jesus Navarro ("Navarro") and Mario Balbuena ("Balbuena"), individually and d\b\a Los Angeles Puebla Mexico Restaurant a\k\a Puebla Mexico Restaurant a\k\a Producciones Madrid Jr. a\k\a Pueblo Mexico Restaurant ("Puebla Restaurant"); Puebla Restaurant; Master Johns Barber Shop ("Master Johns"); Ramon Caceres ("Caceres"), individually and as an officer, director, shareholder and/or principal of Mi Sabana Restaurant, Inc. d\b\a Mi Sabana Restaurant a\k\a Mi Sabana Restaurant & Sports Bar ("Mi Sabana"); Mi Sabana; Carmen Ruiz ("Ruiz"), individually and d\b\a Ruiz Restaurant a\k\a Ruiz-Cima Restaurant ("Ruiz Restaurant"); Ruiz Restaurant; Felicia Rodriguez ("Rodriguez"), individually and as an officer, director, shareholder and/or principal of La Vecina Restaurant, Inc. d\b\a Vecina Restaurant ("La Vecina"); La Vecina; Noemi Mejia ("Mejia"), individually and as an officer, director, shareholder and/or principal of Tacos El Caminero Restaurant, Inc. d\b\a Tacos El Caminero a\k\a Tacos & Caminero Restaurant ("El Caminero"); El Caminero; and Tejada-Mosquea Deli and Grocery Corp. ("Tejada"), d/b/a La Colonia Deli Food ("La Colonia"), (collectively "defendants"), engaged in the illegal interception of a transmission of a boxing match between Felix Trinidad and Fernando Vargas ("Trinidad/Vargas Fight"). Plaintiff contends that the defendants exhibited the event at the time of its transmission willfully and for the purposes of commercial advantage or private financial gain, in violation of the Cable Communications Policy Act ("Communications Act"), as amended, 47 U.S.C. § 553 and 605.

  Upon the defendants' failure to file an answer or otherwise respond to the Complaint, your Honor ordered that a default judgment be entered against them.*fn1 Thereafter, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded against the defendants. The Court directed Kingvision to serve and file its proposed findings of fact and conclusions of law, and an inquest memorandum setting forth its proof of damages, costs of this action and its attorney's fees. Defendants were directed by the Court to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law they deemed appropriate.

  Plaintiff's submissions aver that it is entitled to $110,000 from each defendant: $10,000 in statutory damages and $100,000 in enhanced damages. In addition, plaintiff seeks from each defendant $219.92 in costs, as well as pre-judgment interest. Plaintiff also seeks reasonable attorney's fees. None of the defendants has filed any papers in opposition to the plaintiff's submissions.

  For the reasons set forth below, I recommend that Kingvision be awarded damages and costs against the defendants in the following amounts: By Choice in the amount of $6,219.92; Corral in the amount of $6,219.92; Chuleria's Den in the amount of $6,219.92; Bassas in the amount of $6,219.92; Da Fifth in the amount of $6,219.92; H. Romero and F. Romero in the amount of $6,219.92; Hair Konnexion in the amount of $6,219.92; Joe's Barber in the amount of $6,219.92; Weston in the amount of $6,219.92; Palm Club in the amount of $6,219.92; Billiards Club in the amount of $6,219.92; Palermo Café in the amount of $6,219.92; Navarro and Balbuena in the amount of $6,219.92; Puebla Restaurant in the amount of $6,219.92; Master Johns in the amount of $6,219.92; Caceres in the amount of $6,219.92; Mi Sabana in the amount of $6,219.92; Ruiz in the amount of $6,219.92; Ruiz Restaurant in the amount of $6,219.92; Rodriguez in the amount of $6,219.92; La Vecina in the amount of $6,219.92; Mejia in the amount of $6,219.92; El Caminero in the amount of $6,219.92; and Tejada/La Colonia in the amount of $6,219.92.

  Furthermore, I recommend that Kingvision be awarded pre-judgment interest on each award of damages, as set forth above, to be calculated at the statutory rate of nine percent (9%) per year, accruing on December 2, 2000. II. BACKGROUND AND FACTS

  Based on the submissions by the plaintiff, the Complaint filed in the instant action — the allegations of which, perforce of the defendants' default, must be accepted as true, except those relating to damages, 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) — and this Court's review of the entire court file in this action, the following findings of fact are made:

  Kingvision is a corporation organized and existing under the laws of the state of Delaware, with its principal place of business at 501 Fairway Drive, Deerfield Beach, Florida 33441. See Complaint, ¶ 5, at 9. By Choice is a commercial establishment, having its principal place of business at 1750 East 172nd Street, Bronx, New York 10472. Corral is an individual, having a principal residence at 615 West 173rd Street, New York, New York, 10033, and doing business as Chuleria's Den, a commercial establishment, having its principal place of business at 1812 Amsterdam Avenue, New York, New York 10031. Bassas is an individual, having a principal residence at 63 1B Adrian Avenue, Bronx, New York 10463, and doing business as Da Fifth, a commercial establishment, having its principal place of business at 2322 Amsterdam Avenue, New York, New York 10032.

  H. Romero and F. Romero are individuals, having a principal residence at 815 West 180th Street, New York, New York 10033, and doing business as Hair Konnexion, a commercial establishment, having its principal place of business at 3889 Broadway, New York, New York 10032. Joe's Barber is a commercial establishment, having its principal place of business at 2459 Frederick Douglas Boulevard, New York, New York 10027. Weston is an individual, doing business as Palm Club, a commercial establishment, having its principal place of business at 963 Prospect Avenue, Bronx, New York 10456. Billiards Club is a commercial establishment, having its principal place of business at 2285A Second Avenue, New York, New York 10035. Palermo Café is a commercial establishment, having its principal place of business at 1137 East Tremont Avenue, Bronx, New York 10460.

  Navarro and Balbuena are individuals, doing business as Puebla Restaurant, a commercial establishment, having its principal place of business at 1643 Lexington Avenue, New York, New York 10029-5303. Master Johns is a commercial establishment, having its principal place of business at 2261 Frederick Douglas Boulevard, New York, New York 10027. Caceres is an individual, doing business as Mi Sabana, a commercial establishment, having its principal place of business at 1460 Westchester Avenue, Bronx, New York 10472. Ruiz is an individual, doing business as Ruiz Restaurant, a commercial establishment, having its principal place of business at 1621 Lexington Avenue, New York, New York 10001. Rodriguez is an individual, doing business as La Vecina, a commercial establishment, having its principal place of business at 504 East Tremont Avenue, Bronx, New York 10457. Mejia is an individual, doing business as El Caminero, a commercial establishment, having its principal place of business at 1779 Lexington Avenue, New York, New York 10029-3214. Tejada is a commercial establishment, doing business as La Colonia, having its principal place of business at 2122 Second Avenue, New York, New York 10029-3206. See id., ¶¶ 10-17, 28-30, 41-47, 49-55, 61-63, 73-76, 87-89, 91-92, 98-110, and 116-120, at 9-12, 14-18, 20-25.

  Kingvision, by contract, was granted the exclusive right to distribute, by way of closed circuit television and encrypted satellite signal, the December 2, 2000 transmission of the Trinidad/Vargas Fight. See id., ¶ 130, at 26. Under the terms of the contract, the plaintiff was entitled to enter into agreements with various business entities in New York state which allowed these entities to exhibit the event publicly to their patrons. See id., ¶ 131, at 26. The cost to Kingvision of obtaining the exclusive right to distribute the event to the relevant venues in New York was substantial. See id., ¶ 132, at 26.

  The Complaint alleges that the defendants intercepted the television signal of the event unlawfully and exhibited it at their respective places of business, at the time of the transmission, knowingly, willfully and for the purposes of commercial advantage or private financial gain. See id., ¶¶ 133-134, at 27. The Complaint alleges further that the defendants modified a device, such as a satellite receiver, or used equipment, such as a cable converter box, to intercept the plaintiff's broadcast, knowing that such a modified device or piece of equipment was designed ...


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