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Garden City Boxing Club, Inc. v. Guerra

February 16, 2007

GARDEN CITY BOXING CLUB, INC., AS BROADCAST LICENSEE OF THE NOVEMBER 27, 2004 BARRERA/MORALES PROGRAM, PLAINTIFF,
v.
CARLOS M. GUERRA, INDIVIDUALLY AND D/B/A CEVICHERIA LOS GUERRA RESTAURANT A/K/A CEVICHERIA LOS GUERRA, AND CEVICHERIA LOS GUERRA RESTAURANT A/K/A CEVICHERIA LOS GUERRA, DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

This is one of eight separate actions which have been brought pursuant to 47 U.S.C. §§ 553 and 605 against defendant Carlos M. Guerra, individually and doing business as Cevicheria Los Guerra, by franchised cable television operators alleging that Guerra unlawfully intercepted and exhibited the closed circuit telecasts of sports events to patrons at Cevicheria Los Guerra Restaurant (the "Establishment"). In this case, plaintiff Garden City Boxing Club, Inc., alleges that it contracted with a boxing promoter to obtain the exclusive license to exhibit within the United States the telecast of a November 27, 2004, boxing program (the "Program"), but that defendant Guerra exhibited the Program at the Establishment without plaintiff's authorization.

As in the other seven actions, neither Guerra nor Cevicheria Los Guerra Restaurant has filed an answer or otherwise responded to the complaint, and a default has been entered against them. Plaintiff now moves for a default judgment, seeking statutory damages of up to $10,000 pursuant to 47 U.S.C. §605(e)(3)(C)(i)(II); enhanced damages of up to $100,000 pursuant to 47 U.S.C. §605(e)(3)(C)(ii); and costs and attorneys' fees. For the reasons set forth below, plaintiff's motion is granted and this Court directs the Clerk of Court to enter judgment in favor of plaintiff and against defendants, jointly and severally, in the amount of $10,161.75.

The Consequences of Defendants' Default

"Where, as here, 'the court determines that [a] 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) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2688, at 58-59 (3d ed. 1998)). Accordingly, by defaulting in this case, defendants have conceded, inter alia, that they (1) "willfully violated 47 U.S.C. § 605(a)," Amended Complaint at ¶ 21, and (2) "willfully violated 47 U.S.C. § 553." Amended Complaint at ¶ 35.*fn1

Although defendants have admitted liability under both § 605 and § 553, plaintiff "can recover under only one statute." Kingvision Pay-Per-View Ltd. v. Brito, No. 05 CV 1042 (GBD) (RLE), 2006 WL 728408, at *1 (S.D.N.Y. Mar. 20, 2006) (Report and Recommendation of Ellis, M.J.) (citing International Cablevision, Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir. 1996)). In this case, plaintiff has elected to recover under § 605(a). Plaintiff's Memorandum of Law ("Plaintiff's Memo") at 5. Accordingly, this Court will proceed to determine the damages recoverable under that statute.

Damages Under § 605

Section 605(e) provides, inter alia, that any person aggrieved by a violation of § 605(a) can bring a civil action in district court, in which the court:

(i) may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of . . . [§ 605(a)];

(ii) may award damages as described in subparagraph (C); and

(iii) shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails.

47 U.S.C. § 605(e)(3)(B). Subparagraph (C) permits the recovery of either actual damages under

(C)(i)(I), or statutory damages under (C)(i)(II). Plaintiff requests that this Court award statutory ...


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