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Garden City Boxing Club, Inc. v. Mendez

May 12, 2006

GARDEN CITY BOXING CLUB, INC., PLAINTIFF,
v.
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.

FACTS

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.)

ANALYSIS

Inquest Damages

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 ...


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