United States District Court, E.D. New York
J & J SPORTS PRODUCTIONS, INC. Plaintiff,
EL SONADOR CAFÉ RESTAURANT INC D/B/A EL SONADOR CAFÉ RESTAURANT AND JOSE A. BERNAL Defendants.
MEMORANDUM AND ORDER
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 El Sonador
Café Restaurant Inc. (“El Sonador”) and
its principal, Jose A. Bernal (“Bernal”).
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 ¶ 9. 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. The event
transmissions are electronically coded and only accessible
with decoding equipment provided to establishments that
contract with J & J. Id. at ¶¶ 12, 14.
J alleges that it owned the exclusive distribution rights in
New York to the June 7, 2014 boxing match between Miguel
Cotto and Sergio Martinez (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. It is also alleged that all
commercial establishments in New York were required to obtain
authorization from J & J, “and/or its sub-licensee
G & G Closed Circuit Events, LLC” to exhibit the
Event. Id. at ¶¶ 7, 10.
J advertised the Event on a rate sheet that was filed with
this motion (the “Rate Sheet”). ECF 11-3. 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 also provides
contact information for purchasing the live event.
Sonador is a restaurant located in Elmhurst, New York. Complt
at ¶ 5. J & J alleges that El Sonador 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 he visited El Sonador on June
7, 2014 at 11:53 p.m. and witnessed a broadcast of the Event
attended by 40 patrons. ECF 11-2.
J initiated this action on June 5, 2017, alleging various
violations of the Federal Communications Act, 47 U.S.C.
§§ 553 and 605. Defendants were duly served on June
28, 2017, but never appeared. ECF 5, 6. On September 1, 2017,
Magistrate Judge Orenstein ordered that one of the following
occur by September 22, 2017: “(a) the defendants must
file their answers, (b) the parties must file a stipulation
extending the defendants' time to answer, or (c) the
plaintiff must file a request for a certificate of
default” or the plaintiff would have been deemed to
have abandoned the case. See ECF Entry dated Sep. 1,
2017. On September 8, 2017, Plaintiff filed a request for a
certificate of default. ECF 7. A clerk's entry of default
was made on September 11, 2017. ECF 8. J & J moved for
default judgment on September 21, 2017. ECF 9.
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 ...