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J & J Sports Productions, Inc., As Broadcast Licensee of the May 2, 2009 Pacquiao/Hatton Broadcast v. Ldg Williams

November 7, 2011

J & J SPORTS PRODUCTIONS, INC., AS BROADCAST LICENSEE OF THE MAY 2, 2009 PACQUIAO/HATTON BROADCAST, PLAINTIFF,
v.
LDG WILLIAMS, LLC, D/B/A COSTUMBRE BAR & RESTAURANT AND DELORES WILLIAMS, DEFENDANTS.



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

MEMORANDUM & ORDER

J & J Sports Productions, Inc., ("Plaintiff") brings this action against Delores Williams ("Williams"), individually, and LDG Williams, Inc., d/b/a Costumbre Bar & Restaurant in Brooklyn, New York (the "Establishment") (collectively, "Defendants"),*fn1 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 (1) entry of a default judgment; (2) statutory damages of up to $10,000; and (3) enhanced damages of up to $100,000 against Defendants for violation of 47 U.S.C. §§ 553 and 605(a). Plaintiff also seeks payment of costs and interest on the judgment. Defendants have not submitted any opposition to Plaintiff‟s motion, despite having received notice and an opportunity to do so. (See ECF No. 3, LDG Williams Summons, dated May 23, 2011; ECF No. 4, Dolores [sic] Williams Summons, dated May 23, 2011; ECF No. 5, Dolores [sic] Williams Summons, dated May 30, 2011 (collectively, "Summonses"); ECF No. 6, Certificate of Service, dated June 8, 2001.)

For the reasons set forth below, the court grants Plaintiff‟s motion for entry of default judgment against LDG Williams, Inc. d/b/a Costumbre Bar & Restaurant 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 Plaintiff in the amount of $5,538.30, inclusive of statutory damages of $2,534.15, enhanced willfulness damages of $2,534.15 and costs of $470. Plaintiff will also be entitled to interest on the judgment at the post-judgment rate proscribed by law, accruing from the date of entry of judgment until the date the judgment is paid in full. The court also grants Plaintiff‟s motion for entry of a default judgment against Williams, in the amount of $0, given that Plaintiff has failed to establish that Williams is liable for damages.

BACKGROUND

According to the complaint, Plaintiff acquired the rights to distribute the Pacquiao/Hatton boxing match, including undercard and preliminary bouts, held on May 2, 2009 (the "Event"), which was broadcast via closed-circuit television. (Compl. ¶ 7.) Plaintiff contracted with various establishments in New York State, authorizing those entities to publicly broadcast the Event to their patrons. (Id. ¶ 8.) Plaintiff provided those establishments with electronic decoding equipment and the satellite coordinates necessary to receive the signal for broadcasting the Event. (Id. ¶ 13.) If Defendants had purchased the transmission of the Event from Plaintiff, Defendants would have been authorized to receive, transmit and publish the Event in the Establishment. (Id. ¶ 12.)

Plaintiff also contracted with an investigative agency to visit various establishments in the New York City area on the night of the Event. (See ECF No. 12, Ex. 2, Affidavit of Joseph Gagliardi, dated July 25, 2011 ("Gagliardi Aff.") ¶ 6.) Plaintiff provided to the investigators a list of authorized establishments 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.) Plaintiff includes with its motion for default judgment the affidavit of an independent investigator who visited the Establishment on May 2, 2009, at approximately 10:25 p.m. (ECF No. 10, Ex. 2, Affidavit of E. Covington, dated May 4, 2009 ("Covington Aff.").) At that time, the investigator observed two television sets exhibiting the Event and approximately seventeen individuals in the Establishment, which had an unknown maximum occupancy. (Id.)

According to the complaint, Defendants‟ broadcast of the Event was not authorized by Plaintiff, and could not have been mistakenly or innocently intercepted. (Gagliardi Aff. ¶¶ 7, 9.) Plaintiff states that such unauthorized broadcasts "cannot occur without the willful and intentional modification of electronic equipment . . . [or] the removal of cable traps or devices designed to prevent such unauthorized exhibits . . . ." (Id. ¶ 13.)

Plaintiff filed the instant action on April 28, 2011 and served the Summonses and complaint on Defendants on May 23, and May 30, 2011. (See Summonses; ECF No. 9, Affidavit for Judgment by Default.) Defendants have not appeared, answered or otherwise responded to the complaint.

DISCUSSION

A. Liability of the Corporate Defendant

Rule 55(b)(2) of the Federal Rules of Civil Procedure

provides that the court may enter default upon motion against an adverse party who has failed to answer or otherwise appear in an action. When a default is entered, the defendant‟s failure to respond constitutes an admission of the well-pleaded factual allegations in the complaint, except as to allegations relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) ("[W]hile a party‟s default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages."); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (same).

As noted above, Plaintiff‟s complaint invokes 47 U.S.C. §§ 553 and 605(a) ("Section 553" and "Section 605(a)," ...


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