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J & J Sports Productions, Inc. v. Welch

November 10, 2010

J & J SPORTS PRODUCTIONS, INC., AS BROADCAST LICENSEE OF THE SEPTEMBER 19, 2009, MAYWEATHER/MARQUEZ BROADCAST PLAINTIFF,
v.
DENIZE WELCH, INDIVIDUALLY, AND AS OFFICER, DIRECTOR, SHAREHOLDER AND/OR PRINCIPAL OF DENIZE CREOLE CORNER INC., D/B/A DENIZE'S CREOLE CORNER, AND DENIZE'S CREOLE CORNER INC., D/B/A DENIZE'S CREOLE CORNER, DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge

MEMORANDUM & ORDER

Plaintiff, J & J Sports Productions, Inc., brings this action against Denize Welch, individually, and as officer, director, shareholder and/or principal of Denize Creole Corner Inc., d/b/a Denize's Creole Corner ("Defendants") for alleged violations of the Federal Communications Act of 1934, codified as amended, 47 U.S.C. §§ 553 and 605.

Upon failure of defendants to appear, answer or respond to the complaint, plaintiff now moves for default judgment. Plaintiff's motion for entry of a default judgment seeks statutory damages of up to $10,000 and enhanced damages of up to $100,000 against the defendants for violation of 47 U.S.C. § 605(a). Plaintiff also seeks attorney's fees and costs.

Defendants have not submitted any opposition to plaintiff's motion, despite receiving notice and an opportunity to do so. (See ECF No. 5, Ex. 10, Certificate of Service.)

For the reasons set forth below, the court grants plaintiff's motion for entry of a default judgment and, pursuant to 47 U.S.C. §§ 605(e)(3)(C)(i)(II), 605(e)(3)(C)(ii), and 605(e)(3)(B)(iii), orders that judgment be awarded in favor of the plaintiff, and against defendants in the amount of $15,521.75, inclusive of basic and enhanced statutory damages of $14,012.25, attorney's fees of $784.50, and costs of $725.00.

BACKGROUND

According to the complaint, plaintiff acquired the rights to distribute the Mayweather/Marquez boxing match held on September 19, 2009 (the "Event"), which was broadcast via closed-circuit television and via encrypted satellite signal. (ECF No. 1, Complaint ("Compl.") ¶ 16.) Defendant Denize Welch is an officer, director, shareholder and/or principal of Denize Creole Corner Inc., d/b/a Denize's Creole Corner" (the "Establishment"), and "was the individual with supervisory capacity and control over the activities occurring within the [E]stablishment on September 19, 2009." (Compl. ¶¶ 8-9.) Denize Creole Corner Inc., d/b/a Denize's Creole Corner, is a business entity with principal place of business located at 2602 Church Avenue, Brooklyn, New York. (Compl. ¶ 11.)

Plaintiff contracted with various establishments in New York State, authorizing those entities to publicly broadcast the Event to their patrons. (Compl. ¶ 17.) The broadcast of the Event originated as a satellite uplink, and was retransmitted to cable and satellite providers via satellite signal. (Compl. ¶ 16.)

Plaintiff also contracted with an investigative agency to retain independent investigators to visit various establishments in the New York City area on the night of the Event. (See ECF No. 5, Ex. 1, Affidavit of Joseph Gagliardi dated March 17, 2010 ("Gagliardi Aff.") ¶ 4.) The investigators were provided with a list of authorized and legal locations that had paid the required fee to broadcast the Event, so that the investigators would visit only locations that were not authorized to broadcast the Event. (Id. at ¶ 5.) Plaintiff includes with its motion the affidavit of an independent investigator who states that he visited the Establishment on September 19, 2009, at approximately 11:46 p.m. (ECF No. 5, Ex. 1-C, Affidavit of C. Charidemou dated September 22, 2009 ("Charidemou Aff.").) The investigator observed one television set exhibiting the Event and approximately 85 individuals in the establishment, which had an unknown occupancy. (Id.)

According to plaintiff, the defendants' broadcast of the Event was not authorized by plaintiff, and cannot be mistakenly or innocently intercepted. (Gagliardi Aff. ¶¶ 8-9.) Plaintiff states that such unauthorized broadcasts cannot occur "without the willful and intentional modifications of electronic equipment, the business misrepresentation of a commercial establishment as residential, or, the removal of cable traps and/or devices designed to prevent such unauthorized exhibits." (Id. ¶ 16.)

Plaintiff filed the instant action on January 12, 2010 and served the summons and complaint on defendants on January 27 and February 5, 2010. (ECF Nos. 3-4, Affidavits of Service.) Defendants have not appeared, answered or otherwise responded to the complaint.

DISCUSSION

A. Liability

Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that the Court may enter judgment against the defaulting party when a plaintiff moves for judgment against an adverse party who has failed to answer or otherwise appear in the action. When a default judgment is entered, the defendant's failure to respond constitutes an admission of the well-pleaded factual allegations in the complaint, except as to the allegations relating to damages. See 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). Moreover, an inquest by affidavit, without an in-person hearing, may be conducted so long as the court can ensure "a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 ...


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