ZUFFA, L.L.C. d/b/a THE ULTIMATE FIGHTING CHAMPIONSHIP (
Julie Cohen Lonstein, Esq., LONSTEIN LAW OFFICE, P.C., Ellenville, New York, Attorney for Plaintiff.
MEMORANDUM-DECISION and ORDER
NORMAN A. MORDUE, District Judge.
Plaintiff moves for default judgment against defendant pursuant to Rule 55(b) (2) of the Fed.R.Civ.P. Plaintiff seeks statutory money damages for defendant's willful violation in obtaining the unauthorized viewing of a pay-per-view proprietary broadcast pursuant to Title 47 of the United States Code §§ 553 and 605 for copyright infringement and under the copyright laws of the United States.
A. Applicable Legal Standard
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. Reality Corp., 973 F.2d 155, 158 (2d Cir.), cert. denied., 113 S.Ct. 1049 (1993); 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. See Au Bon Pain, 653 F.2d at 69-70. The movant need prove "only that the compensation sought relate to the damages that naturally flow from the injuries pleaded." Greyhound, 973 F.2d at 159.
A 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 and Co., Inc., 951 F.2d 504, 508 (2d Cir.), cert. denied, 503 U.S. 1006 (1992) (quoting Fustok v. Conticommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). The moving party is entitled to all reasonable inferences from the evidence it offers. See Au Bon Pain, 653 F.2d at 65 (citing Trans World Airlines, Inc. v. Hughes, 308 F.Supp. 679, 683 (2d Cir. 1969)).
Defendant has failed to answer plaintiff's complaint and plaintiff has obtained a Clerk's Entry of Default (Dkt. #7). Thus, the Court deems true all relevant and well-pleaded factual allegations in plaintiff's complaint. See H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 107 (2d Cir. 2006). The complaint sets forth well-pleaded facts supporting plaintiff's claim that defendant knowingly, willfully and unlawfully received, viewed and illegally accessed UFC broadcasts #130 and #131, the subject copyrighted broadcasts, on May 28, 2011, and June 11, 2011, without paying plaintiff the appropriate pay-per-view fees. Defendant's default constitutes an admission of these factual allegations. See Au Bon Pain Corp., 653 F.2d at 65. Accordingly, plaintiff has demonstrated that it is entitled to the relief requested, that is, judgment against defendant, for any and all such damages recovered by the plaintiff herein, together with all costs and disbursements and attorney's fees in connection with this action.
After establishing liability, a court must conduct an inquiry to ascertain the amount of damages with reasonable certainty. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). To determine the amount of damages in the context of a default judgment, "the court may conduct such hearings or order such references as it deems necessary and proper." Fed.R.Civ.P. 55(b)(2). "It [is] not necessary for the District Court to hold a hearing, as long as it ensured that there [is] a basis for the damages specified in the default judgment." Fustok v. ContiCommodity Serv., Inc., 873 F.2d 38, 40 (2d Cir. 1989).
Plaintiff seeks damages, as well as attorney's fees and costs, for defendants' violation of 47 U.S.C. §§ 553(a)(1) and 605(a). Section 553 prohibits persons from intercepting or receiving "any communications service offered over a cable system, unless specifically authorized to do so..." 47 U.S.C. § 553(a)(1). Section 605 proscribes the unauthorized interception and publication of any "radio communication." See id. § 605(a). Defendants' default is deemed an admission of the use of an unauthorized device to intercept coded and scrambled internet transmissions. Greyhound, 973 F.2d at 158; Au Bon Pain Corp., 653 F.2d at 65; see also Transatlantic Marine Claims Agency, Inc., 109 F.3d at 108 (recognizing that the factual allegations in the complaint, except those relating to damages, are deemed true after default). Defendant has thus admitted to violating both sections 553 and 605.
Where a defendant admits to violating both sections, a plaintiff may elect to recover damages under section 605. See Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 131 n. 5 (2d Cir.), cert. denied sub nom. Noel v. Int'l Cablevision, 519 U.S. 929 (1996). Section 605 states that where plaintiff is unable to provide evidence of the extent of any violations, the plaintiff may elect to recover statutory damages, instead of actual damages. 47 U.S.C. § 605 (e) (3) (C) (i) (II). The range of statutory damages for a violation of section 605(a) is $1, 000 to $10, 000. A court has discretion to determine the number of violations and assess ...