Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kingvision Pay-Per-View, Ltd. v. Guerra

February 16, 2007

KINGVISION PAY-PER-VIEW, LTD., PLAINTIFF,
v.
CARLOS M. GUERRA, INDIVIDUALLY AND D/B/A CEVICHERIA LOS GUERRAS DEFENDANTS.
KINGVISION PAY-PER-VIEW, LTD., PLAINTIFF,
v.
CARLOS M. GUERRA, INDIVIDUALLY AND D/B/A CEVICHERIA LOS GUERRA, DEFENDANTS.
KINGVISION PAY-PER-VIEW, LTD., PLAINTIFF,
v.
CARLOS M. GUERRA, INDIVIDUALLY AND D/B/A CEVICHERIA LOS GUERRA, DEFENDANTS.



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

MEMORANDUM and ORDER

These are three 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 defendant Guerra unlawfully intercepted and exhibited the closed circuit telecasts of sports events to patrons at Cevicheria Los Guerra (the "Establishment").*fn1 In these three actions, as in the other five actions, defendant Guerra has failed to answer or otherwise respond to the complaint, and a default has been entered against him. Plaintiff now moves for a default judgment in all three actions, seeking statutory damages of $10,000 per infringement pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); enhanced damages of $50,000 per infringement pursuant to 47 U.S.C. § 605(e)(3)(C)(ii); and costs and attorneys' fees. For the reasons stated below, plaintiff's motions for default judgments are granted and judgment shall be entered in favor of plaintiff and against defendant Carlos M. Guerra, individually and doing business as Cevicheria Los Guerra, in the amount of $17,650, plus costs.

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 these cases, Guerra has conceded, inter alia, that he and Cevicheria Los Guerra willfully violated both 47 U.S.C. § 605 and 47 U.S.C. § 553 as alleged in each of the three actions.

Although Guerra has 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)). Since § 605(e) provides "far more severe penalties than those of § 553(c)," International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1007 (2d Cir. 1993), and since plaintiff makes the same arguments with respect to both sections, this Court will assume that plaintiff would prefer to proceed under § 605(e) in all three cases and will determine the damages recoverable under that statute. Damages Under § 605(e)

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 expressly requests that this Court award statutory damages. Plaintiff's Memoranda of Law ("Plaintiff's Memos") at 6.

The statutory damages provision, § 605(e)(3)(C)(i)(II), provides, in pertinent part:

[T]he party aggrieved may recover an award of statutory damages for each violation of [§ 605(a)] . . . in a sum of not less than $1,000 or more than $10,000, as the court considers just . . . .

In addition, § 605(e)(3)(C)(ii) states:

In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.