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Circuito Cerrado, Inc. v. Casula


November 2, 2010


The opinion of the court was delivered by: Gold, Steven M., U.S.M.J.


By Order dated October 20, 2010, the Honorable Eric N. Vitaliano referred plaintiff's motion for default judgment to me for a report and recommendation on what relief should be awarded to plaintiffs. Docket Entry 11. The court will consider all previous submissions in determining an appropriate award and requests a courtesy copy of plaintiff's motion, Docket Entries 8, 10.

Mundo Maya Sports Center, is an inactive corporation, dissolved as of January 27, 2010, according to the records of New York State, Department of State, Division of Corporations. See A dissolved corporation, however, may be sued while it is winding down its affairs. See N.Y. BUS. CORP. LAW § 1006(a)(4). I infer from the fact that plaintiff has moved for entry of a default judgment that it seeks to pursue its claims against Mundo Maya Sports Center, despite what appears to be the corporation's dissolution. If so, plaintiff shall follow the schedule and instructions below. If plaintiff intends to proceed otherwise in light of the dissolution, it shall so notify the court promptly.

In addition, plaintiff shall supplement its memorandum of law explaining Casula's individual liability under 47 U.S.C. § 605, addressing in particular how vicarious liability against Casula is established where plaintiff's complaint contains mere "labels and conclusions" and "a formulaic recitation of the elements" of a claim against Casula. Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). See Compl. ¶¶ 7-9 (alleging "[u]pon information and belief," that Casula is "an officer, director, shareholder, and/or principal" of Mundo Maya, who had "supervisory capacity and control over the activities occurring" within Mundo Maya and received financial benefit from the operations of Mundo Maya); J&J Sports Prods., Inc. v. Ribeiro, 562 F. Supp. 2d 498, 501 (S.D.N.Y.,2008) ("To hold [defendant] vicariously liable in her individual capacity under § 605, J & J Sports must show that [defendant] had 'a right and ability to supervise the violations, and that she had a strong financial interest in such activities.'"). See also J&J Sports Prods., Inc. v. Daley, 2007 WL 7135707, at *3-4 (E.D.N.Y. Feb. 15, 2007) (denying individual liability under § 605 where the complaint provided only general, conclusory allegations of vicarious liability); but see Innovative Sports Mktg., Inc. v. Aquarius Fuente de Soda, Inc., 2009 WL 3173968, at *10-11 (E.D.N.Y. Sept. 30, 2009) (finding a complaint sufficient to establish individual liability under § 605 where the sole allegation against the individual was that he owned the corporation); J&J Sports Prods., Inc. v. Arhin, 2009 WL 1044500, at *5 (E.D.N.Y. Apr. 17, 2009) (same).

Plaintiff shall make its submission in support of the damages it seeks no later than November 23, 2010. Any submission that defendants wish to make in response is due no later than December 7, 2010. Any reply that plaintiff wishes to make should be filed no later than December 13, 2010.

Upon receipt of this Order, plaintiff is hereby directed promptly to serve a copy of this Order by certified mail, return receipt requested, on defendants at their last known addresses, and to provide the Court with a copy of the return receipt.


STEVEN M. GOLD United States Magistrate Judge


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