United States District Court, E.D. New York
J & J SPORTS PRODUCTIONS, INC. Plaintiff,
EXCLUSIVE LOUNGE & GRILL INC and JENNIFER CRAYTON Defendants.
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge:
J & J Sports Productions, Inc. (“J & J”
or “Plaintiff”) alleges violations of the Federal
Communications Act of 1934, codified at 47 U.S.C.
§§ 553 and 605, against defendants Exclusive Lounge
& Grill Inc (“Exclusive Lounge”) and its
principal, Jennifer Crayton (“Crayton”).
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 DENIED.
has initiated hundreds of cases in this District, and has
moved for default judgment in over one hundred of them. J
& J licenses the rights to exhibit closed-circuit,
pay-per-view television events that are not available for
viewing by the general public. ECF 1, Complaint
(“Complt.”), at ¶ 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 ¶ 11. Transmission
of an event is electronically coded, and can only be accessed
with electronic decoding equipment provided to those
establishments that contract with J & J. Id. at
¶¶ 12, 14.
J alleges that it owned the exclusive distribution rights in
New York to the September 14, 2013 boxing match between Floyd
Mayweather Jr. and Saul Alvarez, a/k/a “Canelo, ”
(the “Event”). Id. at ¶ 7. J &
J claims that the license agreement allowed it “to
sublicense the rights to the marketing and/or sales to the
eventual exhibitors of the fight, ” and that
“[i]n this particular case the plaintiff utilized the
services of G & G Closed Circuit Events, LLC to handle
its marketing and sales.” Id. at ¶ 9. It
is alleged that both J & J and G & G
“contracted with various establishments throughout New
York and granted to such establishments the right to
broadcast the Event in exchange for a fee.”
Id. at ¶ 11. All commercial establishments in
New York that exhibited the Event were required to obtain
authorization from J & J, “and/or its sub-licensee
G & G Closed Circuit Events, LLC.” Id. at
¶¶ 7, 10.
Event was advertised on a rate sheet that was filed with this
motion (the “Rate Sheet”). ECF 10-3. The Rate
Sheet displays a logo for G & G Closed Circuit Events,
LLC (“G & G”) and lists the costs to televise
the Event based on the capacity of the establishment.
Id. The Rate Sheet states that commercial locations
are required to obtain a license “from the OFFICIAL
CLOSED-CIRCUIT PROVIDER, G & G Closed Circuit Events,
Inc., ” that “[t]here is NO OTHER LEGAL LICENSOR,
” and that “[a]ny location that has not been
licensed by this provider will be considered a PIRATE and
TREATED ACCORDINGLY.” Id. The Rate Sheet also
provides contact information for Art Gallegos, the Vice
President of G & G. Id. The Rate Sheet makes no
mention of J & J, nor do those initials appears on that
Lounge is a restaurant located in Queens, New York. Complt at
¶ 5. J & J alleges that Exclusive Lounge did not
obtain the required authorization from J & J, or G &
G, to broadcast the Event, but nonetheless intercepted and
televised the Event on its premises. Id. at
¶¶ 13, 15. J & J submits an affidavit from a
third party auditor who swears she visited Exclusive Lounge
on September 15, 2013 at 1:26 a.m. and witnessed a broadcast
of the boxing match “Mayweather vs. Canelo,
” while at least 75 patrons were present.
J initiated this action on November 16, 2015, alleging
various violations of the Federal Communications Act, 47
U.S.C. §§ 553 and 605. Defendants were duly served
on December 21, 2015, but never appeared. ECF 5, 6. On
January 27, 2016, Magistrate Judge Scanlon ordered Plaintiff
to move for a certificate of default within thirty days and,
subsequently, for default judgment. See ECF Entry
dated Jan. 27, 2016. She also ordered that:
Any submission in support of a default judgment must address
the exclusive license issue identified in J & J
Sports Production, Inc. v. El Ojo Agua Corp., 13 Civ.
6173, 2014 WL 4700014 (E.D.N.Y. Aug. 29, 2014); J & J
Sports Productions, Inc. v. Sur Lounge Cafe Inc., 15
Civ. 2494 (SJ)(RLM) (Sept. 4, 2015), report and
recommendation adopted (E.D.N.Y. Sept. 30, 2015); J &
J Sports Productions, Inc. v. Raquel Restaurant Corp.,
15 Civ. 2497 (ARR) (RLM), (E.D.N.Y. Sept. 4, 2015), report
and recommendation not adopted as case voluntarily
Id. (discussed in detail, infra). A
certificate of default was entered on February 23, 2016 (ECF
8), and J & J moved for default judgment on April 5,
2016. ECF 11.
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.” Labarbera v. ASTC
Labs., Inc., 752 F.Supp.2d 263, 270 (E.D.N.Y. 2010)
(internal quotation marks omitted); see also Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).
plaintiff's default is a “concession of all well
pleaded allegations of liability.” Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 158 (2d Cir. 1992). However, a default does not excuse
defects in plaintiff's pleadings, and allegations are not
conceded if demonstrated to be false by evidence on the
record. In re Wildlife Ctr., Inc., 102 B.R. 321, 325
(Bankr. E.D.N.Y. 1989). Indeed, “[a]llegations are not
well pleaded which are contrary to uncontroverted material in
the file of the case.'” Getty Images (US) Inc.
v. Advernet, Inc., 797 F.Supp.2d 399, 439 (S.D.N.Y.
2011); see also J & J Sports Prods., Inc. ...