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J & J Sports Productions, Inc. v. Bernal

July 28, 2010

J & J SPORTS PRODUCTIONS, INC., AS BROADCAST LICENSEE OF THE FEBRUARY 21, 2009, PAVLIK/RUBIO-COTTO/JENNINGS BROADCAST, PLAINTIFF,
v.
JOSE A. BERNAL, INDIVIDUALLY AND AS OFFICER, DIRECTOR, SHAREHOLDER, AND/OR PRINCIPAL OF EL SONADOR CAFÉ RESTAURANT INC., D/B/A EL SONADOR CAFÉ RESTAURANT, A/K/A 30-30 CAFÉ RESTAURANT, AND EL SONADOR CAFÉ RESTAURANT INC., D/B/A EL SONADOR CAFÉ RESTAURANT, A/K/A 30-30 CAFÉ RESTAURANT, DEFENDANTS.



The opinion of the court was delivered by: Go, United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff J & J Sports Productions, Inc. ("plaintiff") brings this action under Title 47 of the United States Code alleging that defendants Jose A. Bernal ("Bernal") and El Sonador Café Restaurant, Inc. (collectively referred to as "defendants") violated sections 553 and 605 by intercepting and displaying to their customers, without plaintiff's authorization, a pay-per-view cable television broadcast.

After entry of default following defendants' failure to appear or otherwise defend in this action (ct. doc. 6), the Honorable Frederic Block granted plaintiff's motion for entry of default judgment to me to report and recommend on the issue of damages. See ct. doc. 7.

PERTINENT FACTS

The facts pertinent to determination of this motion are undisputed and are set forth in the Complaint ("Compl.") (ct. doc. 1); the October 19, 2009 affidavit of Joseph Gagliardi, President of plaintiff ("Gagliardi Aff.") (ct. doc. 5-1); the October 22, 2009 affidavit of Julie Cohen Lonstein, Esq., counsel for plaintiff ("Lonstein Aff.") (ct. doc. 5-2); the February 24, 2009 affidavit of investigator Cosmo Lubrano ("Cosmo Aff.") (attached as Exhibit C to the Gagliardi Aff.). Defendants did not file any opposing papers.

Plaintiff is a corporation organized under the laws of the State of California, with its principal place of business located in Campbell, California. Compl. at ¶ 5. El Sonador Café Restaurant, Inc., d/b/a El Sonador Café Restaurant, a/k/a 30-30 Café Restaurant is a business entity located at 93-14 Corona Avenue, Corona, New York. Id. at ¶ 10. Defendant Bernal resides in the State of New York. Id. at ¶ 6.

Plaintiff owns the rights to distribute via closed-circuit television and encrypted satellite signal the broadcast of the Pavlik/Rubio-Cotto/Jennings boxing match scheduled for February 21, 2009 (the "program"). Id. at ¶ 15; Gagliardi Aff. at ¶ 3. Plaintiff entered into sub-license agreements with various entities to show the program to patrons in a broadcast which originated as a satellite uplink and was re-transmitted by plaintiff to cable and satellite providers via a satellite signal. See Compl. at ¶¶ 15-16; Gagliardi Aff. at ¶ 3.

Defendants did not enter into any contract with plaintiff and thus were not authorized to receive and publish the program. Gagliardi Aff. at ¶ 6. As set forth in his affidavit, investigator Cosmo Lubrano observed the unauthorized public showing of the program at 30-30 Café Bar to 10 customers. Lubrano Aff. at 2. Entering the establishment at approximately 11:41 p.m. on February 21, 2009, investigator Lubrano observed, inter alia, the boxing match between Pavlik and Rubio. Id. at 1.

After commencement of this action and entry of default against both defendants, Judge Block granted plaintiff's motion for default judgment and referred it to me for determination of damageS.Ct. doc. 7.

DISCUSSION

I. Legal Standards Governing Default

A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). A default also effectively constitutes an admission that damages were proximately caused by the defaulting party's conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. Greyhound, 973 F.2d at 159. The movant need prove "only that the compensation sought relate to the damages that naturally flow from the injuries pleaded." Id.

The court must ensure that there is a reasonable basis for the damages specified in a default judgment. Actual damages or statutory damages may be assessed. In determining damages not susceptible to simple mathematical calculation, Fed. R. Civ. P. 55(b)(2) gives a court the discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). The moving party is entitled to all reasonable ...


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