UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
May 12, 2006
GARDEN CITY BOXING CLUB, INC., PLAINTIFF,
LAURENTINO MENDEZ, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
On April 10, 2006, Judge Berman granted plaintiff Garden City Boxing Club a default judgment, including a permanent injunction, against defendants Laurentino Mendez and 494 Latino Restaurant, Inc. ("Latino Restaurant"), and referred the case to me for an inquest. (Dkt. No. 13: 4/10/06 Default Judgment.) I directed the parties to submit inquest papers and opposition papers (Dkt. No. 14: 4/13/06 Order), which plaintiff did (Dkt. Nos. 15-18) and although the deadline has passed, defendants have not done so.
For the reasons set forth below, plaintiff Garden City Boxing should be awarded statutory damages of $60,000 plus attorneys' fees, costs and expenses of $2,268.75.
Where, as here, "'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).
The complaint alleges that defendants violated the Federal Communications Act of 1934, 47 U.S.C. §§ 553 and 605, by intercepting, receiving, descrambling and exhibiting, without leave or permission from Garden City Boxing, the closed-circuit, pay-per-view November 27, 2004 Barrera/Morales boxing match and related "undercard bouts." (Dkt. No. 1: Compl. ¶¶ 15, 19-20, 29, 33-36.)
Garden City Boxing's investigator determined that Latino Restaurant had a capacity of 80 people, and that 30-35 people were present in the Restaurant while it was showing the fight broadcast. (Dkt. No. 17: Pl. Inquest Br. Ex. B: 12/6/04 Investigator Rodriguez Aff.)
In further support of its willfulness argument, Garden City Boxing has submitted evidence that defendant Latino Restaurant pirated two other boxing matches, on October 2, 2004 and September 13, 2003. (Dkt. No. 17: Pl. Br. at 2-3 & Exs. C-E.) Plaintiff's counsel sent defendant Latino Restaurant (and defendant Mendez) a "cease and desist" letter about the October 2, 2004 fight piracy on November 5, 2004, only three weeks before the November 27, 2004 Barrera/Morales fight piracy at issue in this case. (Pl. Br. at 2-3 & Ex. D.)
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
Pursuant to 47 U.S.C. § 605(e)(3)(C)(i)-(ii), the Court may award statutory damages of between $1,000 and $10,000, and where the violation is willful and for purposes of commercial advantage, additional damages of up to $100,000. For violation of 47 U.S.C. § 553, the Court may award statutory damages of $250 to $10,000, and may increase the amount to up to $50,000 for willful violations committed for purposes of commercial advantage. 47 U.S.C. § 553(c)(3)(A)(ii), (B). See generally, e.g., Joe Hand Promotions, Inc. v. Soto, 01 Civ. 0329, 2003 WL 22962810 at *1 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Cablevision Sys. New York City Corp. v. Torres, 02 Civ. 7602, 2003 WL 22078938 at *3 (S.D.N.Y. Sept. 9, 2003) (Peck, M.J.); King Vision Pay-Per-View Corp. v. Drencia Rest. Corp., 01 Civ. 9777, 2002 WL 1000284 at *1-2 (S.D.N.Y. May 15, 2002) (Peck, M.J.); King Vision Pay-Per-View Corp. v. Papacito Lidia Luncheonette, Inc., 01 Civ. 7575, 2001 WL 1558269 at *2 (S.D.N.Y. Dec. 6, 2001) (Peck, M.J.); King Vision Pay-Per-View, Ltd. v. New Paradise Rest., 99 Civ. 10020, 2000 WL 378053 at *2 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.).
A plaintiff cannot recover under both 47 U.S.C. § 605 and § 553. See, e.g., Joe Hand Promotions, Inc. v. Soto, 2003 WL 22962810 at *2; Cablevision Sys. New York City Corp. v. Torres, 2003 WL 22078938 at *3; King Vision Pay-Per-View Corp. v. Drencia Rest. Corp., 2002 WL 1000284 at *2; King Vision Pay-Per-View Corp. v. Papacito Lidia Luncheonette, Inc., 2001 WL 1558269 at *2; King Vision Pay-Per-View, Ltd. v. New Paradise Rest., 2000 WL 378053 at *2.*fn1
Garden City Boxing recognizes this limitation, and has elected to recover statutory damages under § 605. (See, e.g., Dkt. No. 17: Pl. Br. at 4.)
"I have repeatedly awarded statutory damages of $20,000 in pay-per-view interception and transmission cases such as this." Entm't By J&J, Inc. v. PJ's Lounge, 02 Civ. 0772, 2005 WL 159631 at *1 (S.D.N.Y. Jan. 26, 2005) (Peck, M.J.); see, e.g., Joe Hand Promotions, Inc. v. Soto, 2003 WL 22962810 at *1-2 & n.3 (citing prior cases); see my cases cited at page 3 above.
Garden City Boxing recognizes this, but seeks statutory damages of $110,000 because of the extremely willful nature of defendants' piracy. (See Dkt. No. 17: Pl. Br. t 4-5.) Garden City Boxing argues that:
The case on hand, however, is distinguishable to the above cited cases [where this Court awarded $20,000 in statutory damages] to warrant higher damages. The Defendants here are recidivist violators of the communication law. Additionally, the defendants flagrantly violated the communications law 22 days after being given a claim letter in a similar but unrelated action. (Pl. Br. at 5; see also id. at 6-7.) The Court agrees with plaintiff Garden City Boxing that defendants' conduct justifies an award of statutory damages for willfulness greater than the "standard" $20,000 I have previously awarded. The Court, however, does not believe that an amount of $110,000 is necessary to deter future violations. (Compare Pl. Br. at 7.) To determine whether a defendant's willful conduct justifies enhanced damages, courts in this Circuit consider the following factors: "(1) repeated violations over an extended period of time; (2) substantial unlawful monetary gains; (3) advertising the broadcast; and (4) charging an admission fee or premiums for food and drinks." E.g., Kingvision Pay-Per-View, Ltd. v. Penaloza, No. 05 CV 1928, 2006 WL 898078 at *6 (E.D.N.Y. Apr. 5, 2006) (finding $100,000 excessive and awarding $10,000 enhanced damages for willful statutory violation where plaintiff did not establish any repeated violations); Kingvision Pay-Per-View, Ltd. v. Brito, 2006 WL 728408 at *3; Cablevision of Southern Connecticut, LP. v. Smith, 141 F. Supp. 2d 277, 287 (D. Conn. 2001) (awarding $10,000 per defendant's violation where defendant sold 19 illegal decoder black boxes amounting to an award of $190,000); Home Box Office v. Champs of New Haven, Inc., 837 F. Supp. 480, 484 (D. Conn. 1993). Rather, the Court should award $60,000 in statutory damages.*fn2 Indeed, plaintiff Garden City Boxing itself appears to recognize that it is not likely to be able to collect even a $20,000 judgment. (Pl. Br. at 7: "In this case, a $20,000 award whose collectability is flimsy, is not going to deter defendants from future violations." (emphasis added).) Accordingly, the Court believes a $60,000 statutory damage award is sufficient in these circumstances.*fn3
Attorneys' Fees and Costs
Plaintiff has submitted affidavits justifying its request for attorneys fees of $1,468.75 (at the rate of $200 per hour for Ms. Lonstein) and costs and expenses of $800. (See Dkt. No. 17: Pl. Br. at 9-10 & Ex. A: Gagliardi Aff. ¶ 9 & Ex. D thereto; Dkt. No. 16: Lonstein Aff. & Ex. A.)*fn4
Plaintiff should be awarded $2,268.75 in attorneys' fees, costs and expenses.
For the reasons set forth above, plaintiff should be awarded $60,000 in statutory damages and $2,268.75 in attorneys' fees, expenses and costs.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir., cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretaryof Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Andrew J. Peck United States Magistrate Judge