United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge
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.
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.
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).
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.
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).)
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.)
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.)
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. 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.
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)).
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 ...