United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
ABRAMS, UNITED STATES DISTRICT JUDGE
J & J Sports Productions, Inc., sued Defendants Sugar
Cafe Inc. and Mariolin Martinez for violations of 47 U.S.C.
§§ 553 and 605. Plaintiff alleged that Sugar Cafe
hosted and profited from an unlicensed viewing of a
closed-circuit telecast of the "Welterweight
Championship Fight Program" on November 22, 2014. Comp.
¶ 7. Plaintiff also alleged that Ms. Martinez "is
an officer, director, shareholder and/or principal  of
Sugar Cafe Inc., " who had the "right and ability
to supervise" the cafe "on the night the
'Event' was shown" and "had an obvious and
direct financial interest in" unlawfully showing the
fight. Id. ¶¶ 5, 16, 17. For the reasons
stated on the record at the Show Cause Hearing on December 1,
2017, the Court grants default judgment against Defendants.
Plaintiff argues that this default entitles it to a judgment
in the amount of $20, 081.50, which includes $15, 626.70 in
damages and $3, 984.80 in interest. For the reasons stated
below, Plaintiffs request is granted in part and denied in
must be an evidentiary basis for the damages sought by
plaintiff, and a district court may determine there is
sufficient evidence either based upon evidence presented at a
hearing or upon a review of detailed affidavits and
documentary evidence." Cement & Concrete
Workers Dist. Council Welfare Fund v. Metro Found.
Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). A
court is required to "ascertain the amount of damages
with reasonable certainty." Credit Lyonnais Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.
1999). In this case, Plaintiff claims statutory damages under
47 U.S.C. § 605, which allows the Court, "at the
election of the aggrieved party, " to award actual
damages, see Id. § 605(e)(3)(C)(i)(I), or
statutory damages up to $10, 000 for each violation of §
605(a) and up to $100, 000 for each violation that was made
"willfully and for purposes of direct or indirect
commercial advantage or private financial gain, "
id. § 605(e)(3)(C)(i)(II), (e)(3)(C)(ii). The
statute further provides that the Court "shall direct
the recovery of full costs, including awarding reasonable
attorneys' fees[, ] to an aggrieved party who
prevails." Id. § 605(e)(3)(B)(iii).
"The amount of damages to be assessed pursuant to
section 605 rests within the sound discretion of the
Court." J & J Sports Prods., Inc. v. 1400 Forest
Ave Rest. Corp., No. 13-CV-04299 (FB) (VMS), 2014 WL
4467774, at *7 (E.D.N.Y. Sept. 9, 2014) (citation omitted);
see also Kingvision Pay-Per-View, Ltd. v. Recio, No.
02-CV-6583 (JSM) RLE, 2003 WL 21383826, at *4 (S.D.N.Y. June
Plaintiff "is requesting statutory damages" rather
than actual damages because it asserts that its actual
damages "are difficult to prove." Pl. Mem. at 6, 8
(Dkt. 19). It has nonetheless also attached a statement of
actual damages, which Plaintiff claims add to $5, 208.90.
Id. at 16. Generally speaking, courts award
statutory damages based on the greater of two numbers: the
flat fee that Plaintiff would have charged Defendants to air
the programming at their establishment or the sum of what
each individual who viewed the event at Defendants'
establishment would have paid to view it at home. 1400
Forest Ave Rest. Corp., 2014 WL 4467774, at *7-8;
see also J & J Sports Prods., Inc. v. Garcia,
No. 06-CV-4297 (GBD) (HBP), 2011 WL 1097538, at *4 (S.D.N.Y.
Mar. 1, 2011), report and recommendation adopted
2011 WL 1046054, at *1 (S.D.N.Y. Mar. 22, 2011). Here,
Plaintiff avers that it would have charged Defendants $2, 000
to sublicense the event. See Pl. Aff at ¶ 8
(Dkt. 19-1). Plaintiff also submitted an affidavit from an
investigator that it sent to Defendants' establishment
that states that 22 people were there and each was charged a
$35 cover for attending the event. See Id. ¶
17; Ex. A at 1, 2 (Dkt. 19-2). According to Plaintiff, the
event would have cost $54.95 to view from home. Pl. Mem. at
8. Thus, the per-customer damages would be $1, 208.90. Since
the flat-fee amount would have been higher, the Court sets
$2, 000 as the base statutory award.
does not end the analysis, however, because Plaintiff also
asserts that the Court should exercise its discretion to
enhance these damages based on Defendants' allegedly
willful conduct. See generally J & J Sports Prods.,
Inc. v. Onyx Dreams Inc., No. 12-CV-5355 (SLT) (LB),
2013 WL 6192546, at *6 (E.D.N.Y. Nov. 26, 2013). A defendant
acts willfully under 47 U.S.C. § 605 if the defendant
"took an affirmative action to illegally intercept"
the broadcast. Recio, 2003 WL 21383826, at *5.
"To determine whether willful conduct warrants an award
of enhanced damages, courts consider a variety of factors,
" which include "substantial unlawful monetary
gains" by a defendant, the "collection of a cover
charge or premiums for food and drinks, " and "a
plaintiffs claim of damage to its goodwill and
reputation." 1400 Forest Ave Rest. Corp., 2014
WL 4467774, at *9. An award of enhanced damages ensures that
a willful defendant's "profits are disgorged"
and aims to deter "similar acts of cable piracy in the
future." Garcia, 2011 WL 1097538, at *5;
see also Kingvision Pay-Per-View, Ltd. v. El Rey Del
Bistec Y Caridad, Inc., No. 01-CV-6562 (SHS), 2001 WL
1586667, at *3 (S.D.N.Y. Dec. 12, 2001)
enhanced damages award is appropriate as to Defendant Sugar
Cafe Inc. because Plaintiff has shown that its violation was
willful and "for purposes of direct or indirect
commercial advantage, " 47 U.S.C. §
605(e)(3)(C)(ii). See generally Onyx Dreams Inc.,
2013 WL 6192546, at *6. The Complaint and the affidavits
filed in support of Plaintiff s motion for default judgment
adequately establish that Sugar Cafe hosted, and profited
from, an unlicensed showing of the fight. Plaintiff has also
shown that the cafe "could not have involuntarily
intercepted and exhibited the event" because the
transmission "had to be decoded with electronic decoding
equipment in order for the signal to be received and
displayed." See Onyx Dreams Inc., 2013 WL
6192546, at *6. Moreover, an affidavit from Plaintiffs
investigator states that Sugar Cafe charged a substantial
cover fee for those watching the match and profited from the
purchases of those customers while they watched. Ex. A at 1,
2 (Dkt. 19-2). The Communications Act thus allows the Court,
"in its discretion, " to "increase the award
of damages, whether actual or statutory, by an amount of not
more than $100, 000" against Defendant Sugar Cafe Inc.
47 U.S.C. § 605(e)(3)(C)(ii).
the Court finds that an enhancement of $8, 000 against
Defendant Sugar Cafe Inc. is appropriate. This amount takes
into account the cafe's profits from that night,
including the cover charge and the cafe's use of the
fight "to draw potential customers who would then spend
money inside" the establishment. Kingvision
Pay-Per-View, Ltd. v. Jasper Grocery, 152 F.Supp.2d 438,
442 (S.D.N.Y. 2001) (applying an enhancement of $10, 000
based on the defendant's willful conduct). This amount is
"sufficient to compensate the plaintiff and also deter
the defendant and others from further violations."
See Kingvision Pay-Per-View Ltd. v. Zalazar, 653
F.Supp.2d 335, 343 (S.D.N.Y. 2009); see also Recio,
2003 WL 21383826, at *4; ElRey DelBistec YCaridad,
Inc., 2001 WL 1586667, at *2. The $8, 000 enhanced award
is also "consistent with other awards in this Circuit
for comparable infractions." J & J Sports
Prods., Inc. v. Kosoria, No. 06-CV-2102 (KMK), 2007 WL
1599168, at *5 (S.D.N.Y. June 1, 2007) (awarding $7, 500 in
enhanced damages) (gathering cases); see also Kingvision
Pey-Per-View Ltd. v. Cardona, No. 03-CV-3839 (GBD) (FM),
2004 WL 1490224, at *4 (S.D.N.Y. June 30, 2004) (finding that
$10, 000 in enhanced damages, which was five times the base
damages award, was appropriate because that was the amount
necessary to "send the message that cable piracy is
reach a final statutory damages award, courts add the
enhanced damages amount to the base statutory award, which is
$2, 000 here. See Zalazar, 653 F.Supp.2d at 343;
see also El Rey DelBistec YCaridad, Inc., 2001 WL
1586667, at *3. Thus, Plaintiff is entitled to a total of
$10, 000 in statutory damages against Defendant Sugar Cafe
$2, 000 of that amount, however, will be recoverable against
Ms. Martinez because there is not a sufficient
"evidentiary basis" to award Plaintiff a damages
enhancement against her. See Cement & Concrete
Workers Dist. Council Welfare Fund, 699 F.3d at 234.
Although she was allegedly "an officer, director,
shareholder and/or principal of Sugar Cafe Inc." with
the "right and ability to supervise" the cafe
"on the night the 'Event' was shown, "
there is no evidence to support the conclusion that she in
particular acted willfully here. Compl. ¶¶ 5, 16,
17. Plaintiff has not established, for example, that Ms.
Martinez was personally involved in approving the decoding of
the signal or otherwise knew that the fight was being
unlawfully intercepted. The investigator's affidavit
identifies only an "Unknown Hispanic Female" as a
waitress working at the cafe that night. Ex. A at 1, 2 (Dkt.
19-2). Thus, Plaintiff is entitled to recover from Ms.
Martinez only $2, 000 in statutory damages.
is also entitled to costs under 47 U.S.C. §
605(e)(3)(B)(iii). Plaintiff does not request attorneys'
fees, instead limiting its request to $470 in costs for
filing the case and service of process. See Dkt. 17 at 4.
These costs are granted. Plaintiff further requests that the
Court award interest for the period of November 22, 2014
through October 2017 at a rate of nine percent. Id.
Because the Court is awarding Plaintiff statutory damages,
the request for prejudgment interest is denied. See Onyx
Dreams Inc., 2013 WL 6192546, at *7 ("The majority
of courts to have considered the issue have denied an award
of prejudgment interest on the grounds that statutory damages
under the Communications Act are analogous to punitive
damages in that they are designed to deter others from
similar infringing activity.").
also appears to seek statutory damages under 47 U.S.C. §
553, but Plaintiff may not recover under both that statute
and 47 U.S.C. § 605. See Zalazar, 653 F.Supp.2d
at 339; J & JSports Prods., Inc. v. El Sonador Cafe
Rest. Inc., No. 15-CV-6934 (NG) (VMS), 2017 WL 598534,
at *4 (E.D.N.Y. Jan. 3, 2017), report and recommendation
adopted 2017 WL 591169 (E.D.N.Y. Feb. 14, 2017). Section
605 offers a more generous potential award and is the
appropriate statute under which to award damages here.
See Zalazar, 653 F.Supp.2d at 339.
foregoing reasons, Plaintiff is awarded $10, 470.00.
Defendants are jointly and severally liable for $2, 470 of
that amount, and Defendant Sugar Cafe is individually liable
for the remainder. See Kosoria, 2007 WL 1599168, at
*5. The Clerk of Court is respectfully directed to enter