United States District Court, E.D. New York
J & J SPORTS PRODUCTIONS, INC. Plaintiff,
MONTE LIMAR SPORTS BAR INC. d/b/a MONTE LIMAR SPORTS BAR and YAHAIRA SOTO Defendants.
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge.
J & J Sports Productions, Inc. (“J & J”
or “Plaintiff”) alleges various violations of the
Federal Communications Act of 1934, codified at 47 U.S.C.
§§ 553 and 605, against defendants Monte Limar
Sports Bar Inc (“Monte Limar”) and its principal,
Yahaira Soto (“Soto”). Defendants were duly
served but failed to appear. J & J obtained a certificate
of default and now moves the Court to enter default judgment
and award damages. For the reasons stated herein,
Plaintiff's motion is GRANTED in part and DENIED in part.
has initiated hundreds of cases in this District, and has
moved for default judgment in over one hundred of them. The
facts of each case, including this one, are virtually
identical. J & J licenses the rights to exhibit
closed-circuit, pay-per-view television events. ECF 1,
Complaint (“Complt.”), at ¶¶ 8, 10.
Commercial establishments contract with J & J to access a
closed-circuit event and televise it to their clientele in
exchange for a fee. Id. at ¶ 10. Transmission
of the events is electronically coded, and can only be
accessed with electronic decoding equipment provided to those
establishments that contract with J & J. Id. at
¶¶ 11, 13. J & J owned the exclusive
distribution rights in New York to the May 3, 2014 boxing
match between Floyd Mayweather Jr. and Marcos Maidana (the
“Match”). Commercial establishments in New York
that exhibited the Match were required to obtain
authorization from J & J. Id. at ¶¶ 7,
10. J & J advertised the Match on a rate sheet (the
“Rate Sheet”), which lists the cost to televise
the Match based on the capacity of the establishment. ECF
Limar is an establishment located in Queens, New York.
Complt. at ¶ 5. Monte Limar did not obtain the required
authorization from J & J to broadcast the Match, but
nonetheless intercepted and televised it on its premises.
Id. at ¶¶ 12, 14. J & J submits an
affidavit from a third party auditor who swears she visited
Monte Limar on May 4, 2013 at 12:50 a.m. and witnessed the
Match broadcast on seven televisions while approximately 100
patrons were present. ECF 15-2. The affidavit states that
there was no cover charge for admission and that the
establishment did not advertise or promote the telecast in
any way. Id.
J initiated this action on June 29, 2015, alleging various
violations of the Federal Communications Act, 47 U.S.C.
§§ 553 and 605. Defendants were duly served on July
22, 2015, but never appeared. ECF 4, 5, 13-3; ECF 15, Aff. of
Plaintiff's Counsel, at ¶ 1. A certificate of
default was entered on September 3, 2015. ECF 7. J & J
moved for default judgment on January 6, 2016. ECF 10. After
this Court identified a number of deficiencies in its moving
papers, J & J withdrew the motion. ECF 11. J & J
moved for default judgment again on March 17, 2016, which
motion is now before the Court. ECF 14.
of the Federal Rules of Civil Procedure prescribes a two-step
process for obtaining a default judgment. Step one requires
the court clerk to enter the defendant's default
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise
defend.” Fed.R.Civ.P. § 55(a). Plaintiff then
moves for default judgment, and it “remains for the
court to consider whether the unchallenged facts constitute a
legitimate cause of action . . .” See Labarbera v.
ASTC Labs., Inc., 752 F.Supp.2d 263, 270 (E.D.N.Y. 2010)
(internal quotation marks omitted). The court must accept
plaintiff's “factual allegations as true and draw
all reasonable inferences in its favor, ” while also
determining whether plaintiff's allegations establish
defendant's liability as a matter of law. Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). The court
may “require proof of necessary facts and need not
agree that the alleged facts constitute a valid cause of
action.” Au Bon Pain Corp. v. Artect, Inc.,
653 F.2d 61, 65 (2d Cir. 1981).
Communications Act of 1934
553 of the Communications Act provides that a person shall
not, without authorization, “intercept or receive or
assist in intercepting or receiving any communications
service offered over a cable system.” 47 U.S.C. §
553(a)(1). Similarly, Section 605 states that an unauthorized
person may not “intercept any radio communication and
divulge or publish the . . . contents . . . of such
intercepted communications to any person.” 47 U.S.C.
asserts claims under Sections 553 and 605 of the
Communications Act. Although conduct may violate both
provisions, “in such circumstances, the court should
award damages only under Section 605.” J & J
Sports Prod., Inc. v. El Ojo Aqua Corp., 13-CV-6173
(ENV) (JO), 2014 WL 4700014, at *2 (E.D.N.Y. Aug. 29, 2014),
R&R adopted, 2014 WL 4699704 (E.D.N.Y. Sept. 22, 2014)
(citing cases). ...