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J & J Sports Productions, Inc. v. Crazy Willy's Bar, Lounge & Restaurant Inc.

United States District Court, E.D. New York

July 30, 2018



          NICHOLAS G. GARAUFIS, United States District Judge

         Plaintiff J & J Sports Productions, Inc., initiated this action on March 2, 2017, asserting claims under Sections 553 and 605 of the Communications Act of 1934 (the "Act"), 47 U.S.C. §§ 553, 605, against Defendants Crazy Willy's Bar, Lounge & Restaurant, Inc. (the "Defendant Establishment" or "Crazy Willy's"), and Gildalina Garcia and Kathleen D. Jimoh (the "Individual Defendants"). (Compl. (Dkt. 1).) Defendants have not appeared in this action and have failed to answer or otherwise respond to the complaint.

         Before the court is Plaintiffs motion for default judgment (Mot. for Default J. ("Mot.") (Dkt. 16)), which the undersigned referred to Magistrate Judge Robert M. Levy for a report and recommendation ("R&R"). (Feb. 23, 2018, Order Referring Mot.) On June 28, 2018, Judge Levy issued an R&R in which he recommended that the court (1) grant the motion as to the Defendant Establishment but deny it as to the Individual Defendants; (2) award Plaintiff $3252.50 in damages and costs; and (3) deny Plaintiffs request for pre-judgment interest. (See R&R (Dkt. 22).) Plaintiff timely objected to the R&R, arguing that the court should reject (1) the R&R's findings as to liability for the Individual Defendants, and (2) the R&R's calculation of statutory and enhanced damages. (See Pl. Objs. (Dkt. 23).) Defendants have not responded to Plaintiff's objections and the time to do so has passed. For the following reasons, the court OVERRULES Plaintiffs objections, ADOPTS IN FULL the R&R, and accordingly GRANTS IN PART and DENIES IN PART Plaintiffs motion for default judgment.

         I. BACKGROUND

         A. Factual Allegations

         Because Defendants have defaulted, the court "is required to accept all of [Plaintiffs] factual allegations as true and draw all reasonable inferences in [Plaintiffs] favor." Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); see Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187-88 (2d Cir. 2015).

         Plaintiff entered into a closed-circuit television license agreement whereby Plaintiff received exclusive rights to exhibit and sublicense the March 8, 2014, Light Middleweight Championship Fight Program between Saul Alvarez and Alfred Angulo, including undercard and preliminary bouts (collectively, the "Event"). (Compl. ¶ 7.) The transmission of the Event was electronically coded such that it could only be received using special decoding equipment. (Id. ¶ 12.) Establishments that contracted with Plaintiff-or with Plaintiffs sublicensee, G & G Closed Circuit Events, Inc.-were entitled to televise the Event, and were provided with the necessary decoding equipment. (Id. ¶¶ 13-14.)

         The Defendant Establishment is a corporation organized under the laws of New York and operating in Richmond Hill, New York, with the Individual Defendants as its "officers, directors, shareholders, and/or principals." (Id. ¶ 5.) Defendants never contracted with Plaintiff to screen the Event. (Id. ¶ 13.) Nonetheless, on March 8, 2014, Defendants intercepted the interstate communication of the Event and screened it within the Defendant Establishment. (Id. ¶ 15.) An auditor observed that approximately 25 patrons were present in the Defendant Establishment during the screening of the Event. (Audit Report of Savendra Dev Somdat (Dkt. 17-2).)

         B. Procedural History

         Plaintiff filed its complaint in this court on March 2, 2017 (Compl.), and service was properly executed on each defendant (Summons (Dkt. 6); Summons (Dkt. 7); Summons (Dkt. 8)). Defendants failed to appear or answer. On June 5, 2017, the Clerk of Court entered a certificate of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (Clerk's Entry of Default (Dkt. 14).) Plaintiff moved for default judgment on February 23, 2018, seeking an order of default judgment awarding statutory damages, enhanced damages, and litigation costs (exclusive of attorney's fees). (See Mot.; Mem. in Supp. of Mot. ("Mem.") (Dkt. 18).) The undersigned referred Plaintiffs motion to Judge Levy for an R&R. (Feb. 23, 2018, Order Referring Mot.)

         On June 28, 2018, Judge Levy issued an R&R granting in part and denying in part Plaintiff's motion. (See R&R.) First, as to the question of liability, Judge Levy recommended the court hold the Defendant Establishment liable under the Act but found that liability as to the Individual Defendants had not been established. (See Id. at 5-7.) Second, as to the question of damages, Judge Levy recommended awarding Plaintiff $3252.50, consisting of $1373.75 in statutory damages, $1373.75 in enhanced damages, and $505 in costs and disbursements. (See Id. at 7-9.) Judge Levy also found that it would be inappropriate to award Plaintiff pre-judgment interest. (See Id. at 9-10.)

         Plaintiff timely objected to the R&R. (See Pl. Objs.) First, Plaintiff agrees with the R&R that the Defendant Establishment can be held liable under the Act, but argues that the R&R was wrong to recommend denial of the motion for default judgment as to the Individual Defendants. (Id. at 2-7.) Second, Plaintiff disagrees with the R&R's method for calculating damages, arguing that Plaintiff should instead receive $2573.75 in statutory damages and at least $5147.50 in enhanced damages.[1] Qd. at 7-9; see Mem. at 13, 17.) Defendants, as they have not appeared in this action, did not file a response to Plaintiffs objections, and the time to do so has passed.


         In reviewing an R&R from a magistrate judge regarding a dispositive motion, the district court "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Romero v. Bestcare Inc.. No. 15-CV-7397 (JS), 2017 WL 1180518, at *2 (E.D.N.Y.Mar. 29, 2017) (internal citation omitted); see Impala v. U.S. Dep't of Justice, 670 Fed.Appx. 32, 32 (2d Cir. 2016) (summary order) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision...." (internal citation omitted)); Gesualdi v. Mack Excavation & Trailer Serv.. Inc., No. 09-CV-2502 (KAM), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) ("Where no objection to the [R&R] has been filed, the district court need only satisfy itself that there is no clear error on the face of the record." (internal quotation marks and citation omitted)). "A decision is 'clearly erroneous' when the Court is, 'upon review of the entire record, left with the definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven. Inc., 662 F.Supp.2d 333, 339-40 (S.D.N.Y. 2009) (quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)).

         The district court must review de novo "those portions of the report... to which objection is made." 28 U.S.C. § 636(b)(1); see Fed.R.Civ.P. 72(b)(3). To obtain this de novo review, an objecting party "must point out the specific portions of the [R&R]" to which objection is made. Sleepv's LLC v. Select Comfort Wholesale Corp.. 222 F.Supp.3d 169, 174 (E.D.N.Y. 2016); see also Fed.R.Civ.P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the [R&R] only for clear error." Pall Corp. v. Entegris. Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted); see also Mario v. P & C Food Mkts., Inc.. 313 F.3d 758, 766 (2d Cir. 2002) (holding that plaintiffs objection to an R&R was "not specific enough" to "constitute an adequate objection under ... Fed.R.Civ.P. 72(b)").

         III. ...

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