United States District Court, S.D. New York
November 3, 2005.
GARDEN CITY BOXING CLUB, INC., Plaintiff,
MARCO SALCEDO and TRIO BAR CORP., d/b/a CAFE MELAO, Defendants.
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
Plaintiff Garden City Boxing Club, Inc. ("Garden City") brought
this action under 47 U.S.C. § 605 and § 553, alleging that the
defendants illegally intercepted and exhibited plaintiff's
November 8, 2003 closed circuit exhibition of the Tarver/Jones
boxing match and its related bouts.
On January 31, 2005, the parties participated in a mediation
and reached a settlement that required defendants to make two
payments of $1,500 each to plaintiff. On April 20, 2005, Judge
Berman granted defense counsel, Jason Pascal, permission to
withdraw as counsel due to his inability to contact his clients.
In a Memorandum and Order dated July 21, 2005, I granted a
default judgment against Marcos Salcedo and Trio Bar Corp. d/b/a
Café Melao. My Order directed: (1) the defendants to send me any
opposing papers to plaintiff's motion in support of damages by
September 30, 2005; and (2) the parties to notify me by September
30 if they wanted me to hold a hearing on October 28, 2005. To
date, defendants have not served any opposition papers, and
neither party has requested an inquest hearing.
Garden City owns the commercial rights to distribute the
November 8, 2003 Tarver/Jones boxing match to commercial
establishments for a licensing fee. To prevent unauthorized users
from viewing its program, Garden City scrambled and distorted its
satellite signals; commercial establishment subscribers to Garden City's programming paid a fee*fn1 and
then were given either a decoder to view the event or (if they
had a satellite dish) the satellite coordinates necessary to
receive the signal. The defendants were not authorized to receive
or broadcast the Tarver/Jones match. (Compl. ¶¶ 12-16; 6/20/05
Gagliardi Aff. ¶¶ 3-8.)
On November 8, 2003, Keith Rauscher, an independent auditor
hired by plaintiff to investigate establishments that unlawfully
exhibited its program, entered Café Melao at 11:15 p.m. He
observed one television displaying the end of the first round and
the beginning of the second round of the Tarver/Jones fight.
Café Melao did not have a cover charge, and there were 40 people
inside the restaurant. Rauscher estimated that Café Melao's
capacity was 200 people. He left at 11:20 p.m. (11/17/03 Rauscher
Aff.; 6/20/05 Gagliardi Aff. ¶ 7.)
Upon the entry of a default judgment, the Court accepts as true
all of the facts alleged in the complaint, except those relating
to the amount of damages. See Au Bon Pain Corp. v. Artect Inc.,
653 F.2d 61, 65 (2d Cir. 1981). An inquest is then conducted to
determine the amount of damages.
The Court may not award damages under both 47 U.S.C. § 605 and
47 U.S.C. § 553. International Cablevision, Inc. v. Sykes,
75 F.3d 123, 129 (2d Cir. 1996), cert. denied, Noel v.
International Cablevision, Inc., 519 U.S. 929, 117 S.Ct. 298
(1996). If a defendant has violated both sections, then the Court
should award damages only under Section 605, which has more
severe penalties than Section 553. Sykes, 73 F.3d at 129. Thus,
I will discuss only Section 605 and the plaintiff's remedies
47 U.S.C. § 605(a) states, in part:
No person not being authorized by the sender shall
intercept any radio communication and divulge or publish the existence, contents, substance . . . of
such intercepted communication to any person. No
person not being entitled thereto shall receive any . . .
communication by radio and use such communication
. . . for his own benefit or for the benefit of
another not entitled thereto. . . .
47 U.S.C. § 605(e) (3) (C) (i) (II) provides that an aggrieved
party may recover an award of statutory damages for each
violation of subsection (a), in an amount between $1,000 and
$10,000 as the Court considers just. The statute further provides
that the Court "in its discretion may increase the award of
damages . . . by an amount of not more than $100,000" where the
Court finds that the defendant's violation "was committed
willfully and for purposes of direct or indirect commercial
advantage or private financial gain." See 47 U.S.C. § 605(e)
(3) (C) (ii).
In three other inquests involving a similar fact pattern, I
followed Magistrate Judge Pitman's lead and awarded a set dollar
amount of $300.00 per patron. See Entertainment by J&J v.
Rosario, 01 Civ. 5485 (JSM) (DFE) (May 20, 2003); Top Rank,
Inc. v. Caceres, 01 Civ. 8426 (HB)(DFE) (Mar. 19, 2002);
KingVision Pay-Per-View, Ltd. v. Acogedor Cibao Restaurant, 99
Civ. 10095 (RMB) (DFE) (S.D.N.Y. November 28, 2001). In those
three inquests, Judge Martin, Judge Baer and Judge Berman adopted
my Reports in their entirety. I note that Judge Dolinger recently
used this approach as well. See Garden City Boxing Club, Inc. v.
Alicea, 04 Civ. 2084 (RMB) (DFE) (June 6, 2005).
In Cablevision Systems New York City Corporation v. Jose
Cateras d/b/a Acogedor Cibao Restaurant, 97 Civ. 7199 (LAK)
(HBP), at ¶ 28 (S.D.N.Y. May 1, 1998), Magistrate Judge Pitman
recommended that under 47 U.S.C. § 605(e) (3) (C) (i) (I) and
(II), Cablevision Systems should be awarded $300.00 per patron
for the defendant's illegal interception and public display of a
1996 boxing match. Judge Pitman wrote at ¶ 28:
I recommend this figure because although defendant's
violation was serious and intentional, it appears
that defendant's establishment is small and
defendant's financial gain was minimal. [Footnote 2]
Although I agree with plaintiff that defendant's
conduct should not be tolerated and that
considerations of general deterrence are relevant to
the determination of the amount of the penalty, I do
not believe that defendant's violation is so serious
as to warrant the imposition of a penalty that would
necessarily drive defendant out of business. See
New Contenders, Inc. v. Diaz Seafood Corp., 96 Civ. 4701 (AGS) (HP), 1997
WL 538827 at *2 (S.D.N.Y. Sept. 2, 1997) . . .
At Footnote 2, Judge Pitman wrote:
I assume that one of the reasons defendant illegally
intercepted the Return of the Legends Event was to
profit from increased sales of food and drink.
However, even if I make the generous assumption that
each of the twenty-two patrons ordered $100 worth of
food and drink, the damages figure I recommend will
still result in disgorgement of defendant's profits
several times over.
Judge Kaplan adopted Judge Pitman's Report and Recommendation on
May 19, 1998.
In the case at bar, plaintiff's investigator reported that
there were 40 people in defendants' establishment. At $300.00 per
patron this would lead to $12,000.00, but instead I award
plaintiff the statutory maximum of $10,000.00.
Plaintiff also seeks enhanced damages of $50,000 because
"Defendant has pirated two (2) additional events for a total of
three piracies that have been documented by the victims." The
word "additional" was poorly chosen. Plaintiff is referring to
two earlier piracies the February 22, 2003 Tyson/Etienne
match and the March 1, 2003 Jones/Ruiz match. Plaintiff says that
the March 1, 2003 match was the subject of another of its
lawsuits in our Court (Kingvision Pay-Per-View, Ltd. v. Pagan,
03 Civ. 3838(LAP).) (See Plaintiff's Memo. p. 2.)
The defendants in the Pagan case were Sandra Noemi Pagan and
CJS 17 Corp., a/k/a Café Melao Bar Restaurant. I assume that is
the same location, but I see no evidence that the defendants in
the case at bar (Mr. Salcedo and Trio Bar Corp.) were involved
with Café Melao as far back as March or April 2003. I decline to
award enhanced damages.
Pursuant to 47 U.S.C. § 605(e) (3) (B) (iii), plaintiff is
entitled to full costs, including reasonable attorney's fees. I
have reviewed the June 2005 affidavit of plaintiff's attorney,
Julie Cohen Lonstein, Esq., which details the time she spent on
this case (21.75 hours), her hourly rate ($200.00), the time her
paralegal spent on this case (7.50 hours) and the paralegal's
hourly rate ($75.00) for a grand total of $4,912.50. In reviewing
Ms. Lonstein's summary of the attorney and paralegal time spent,
I find some of the entries to be either inflated or erroneous. For example, Ms. Lonstein says that: (1) on August 4,
2004 she spent 30 minutes reviewing a standard one-paragraph form
affidavit of service; (2) on July 6, 2004, she spent 30 minutes
reviewing the Scheduling Order there was no Scheduling Order
entered until August 9, 2004, when Judge Berman memo endorsed Ms.
Lonstein's August 3, 2004 letter seeking a 45-day adjournment of
the initial pre-trial conference; (3) on January 20, 2005, she
spent 30 minutes reviewing a court order there were no court
orders entered anytime between December 7, 2004 and April 12,
2005. I also note that some of the work was boilerplate, and that
during the time in question, Ms. Lonstein was charging this same
client only $150.00 per hour in a similar case. See Garden City
Boxing Club, Inc. v. Bello, 2005 WL 2496062, at *5 (E.D.N.Y.
Sept. 20, 2005) (Azrack, M.J.). Accordingly, I have decided to
reduce plaintiff's attorney's fees by $2,500.00. I hereby award
plaintiff attorney's fees in the amount of $2,412.50.
Plaintiff also seeks costs and disbursements consisting of a
$150.00 filing fee, a $140.00 service of process fee, and a
$350.00 investigation fee. I will award plaintiff the first two
amounts, but only $100.00 for the investigation fee. I agree with
Magistrate Judge Azrack that plaintiff should find a cheaper
investigative service one that pays its investigators less than
$350.00 for five minutes of work. See Bello, 2005 WL 2496062,
at *6, n. 2.
Pursuant to 47 U.S.C. § 605(e) (3) (B) (i), I find that
plaintiff is entitled to a permanent injunction enjoining and
restraining the defendants from importing, receiving, possessing,
or using a pirate access device, and I direct the defendants to
surrender all such pirate access devices in their possession to
For the reasons set forth above, I award plaintiff: (1)
statutory damages against the two defendants, jointly and/or
severally, in the amount of $10,000.00; and (2) costs and
attorney's fees against the two defendants, jointly and/or
severally, in the amount of $2,802.50. I hereby permanently
enjoin and restrain the defendants from importing, receiving,
possessing, or using a pirate access device, and I direct the
defendants to surrender all such pirate access devices in their
possession to plaintiff.
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