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J & J Sports Productions, Inc v. Pablo A. Garcia

March 1, 2011

J & J SPORTS PRODUCTIONS, INC., AS BROADCAST LICENSEE OF THE MAY 28, 2005 CHAVEZ/ROBINSON PROGRAM, PLAINTIFF,
v.
PABLO A. GARCIA, INDIVIDUALLY AND AS AN OFFICER, DIRECTOR, SHAREHOLDER AND/OR PRINCIPAL OF EL TEJANITO RESTAURANT INC., D/B/A EL TEJANITO PIZZERIA & RESTAURANT AND EL TEJANITO RESTAURANT INC., D/B/A EL TEJANITO PIZZERIA & RESTAURANT, DEFENDANTS.



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

REPORT AND RECOMMENDATION

TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,

I. Introduction

On October 8, 2009, the Honorable George B. Daniels, United States District Judge for the Southern District of New York, referred this matter to me to conduct an inquest concerning plaintiff's damages with respect to defendant El Tejanito Restaurant Inc. (the "Defaulting Defendant"), and to issue a report and recommendation concerning plaintiff's damages as to the Defaulting Defendant.

Pursuant to the Order of Reference, I issued a Scheduling Order on October 15, 2009 directing plaintiff to serve and file proposed findings of fact and conclusions of law, along with evidentiary materials supporting its claim for damages, by December 18, 2009. My October 15, 2009 Scheduling Order further directed the Defaulting Defendant to submit its responsive materials by January 29, 2010. Specifically, my Order provided:

Defendants shall submit their response to Plaintiff's submissions, if any, no later than January 29, 2010. IF DEFENDANTS (1) FAIL TO RESPOND TO PLAINTIFF'S SUBMISSIONS, OR (2) FAIL TO CONTACT MY CHAMBERS BY JANUARY 29, 2010 AND REQUEST AN IN-COURT HEARING, IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFF'S WRITTEN SUBMISSIONS ALONE WITHOUT AN IN-COURT HEARING. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); Fustok v. ContiCommodity Services Inc., 873 F.2d 38, 40 (2d Cir. 1989) ("[I]t [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment.") (Docket Item 16) (emphasis in original).

On or about December 16, 2009, plaintiff, through its counsel, filed a document entitled Findings of Fact and Conclusions of Law Concerning Damages (Docket Item 17). That same day, plaintiff submitted an amended version of this document (Plaintiff's Findings of Fact and Conclusions of Law Concerning Damages, dated December 16, 2009 (Docket Item 18), ("Pl.'s Findings")).

A copy of my October 15, 2009 Scheduling Order was sent to the Defaulting Defendant at the address at which it was served, namely 534 North Avenue, New Rochelle, New York 10801. It has not been returned by the United States Postal Service as undeliverable and the Defaulting Defendant has not made any written submission to me, nor has it contacted my chambers in any way.

Accordingly, on the basis of the complaint and the affidavits previously submitted by plaintiff and its counsel, I respectfully recommend that the Court make the following findings of fact and conclusions of law and award plaintiff $6,525.00 in statutory damages and costs.

II. Findings of Fact

A. The Parties

1. The plaintiff, J & J Sports Productions, Inc., is a California corporation with its principal place of business at Suite 200, 2380 South Bascom Avenue, Campbell, California 95008 (Complaint*fn1 , dated May 30, 2006 (Docket Item 1), ("Compl.") ¶ 5).

2. The Defaulting Defendant is a business entity, the exact nature of which is unknown, having its principal place of business at 534 North Avenue, New ...


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