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J & J Sports Productions, Inc. v. El Sonador Cafe Restaurant Inc.

United States District Court, E.D. New York

December 14, 2017



          I. Leo Glasser, Judge.

         Plaintiff 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.


         Plaintiff 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 & 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 & 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. Id.

         El 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 & 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.[1] 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.


         I. Legal Standards

         A. Default Judgment

         Rule 55 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).

         B. Communications Act of 1934

         Section 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 ...

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