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J & J Sports Productions Inc. v. Barretta

United States District Court, E.D. New York

September 10, 2019

SALVATORE BARRETTA, individually and D/B/A BROWNSTONE BAR & RESTAURANT; and 277 GOLD INC., an unknown business entity D/B/A BROWNSTONE BAR & RESTAURANT Defendants.



         On September 11, 2018, Plaintiff J & J Sports Productions, Inc. (“J & J”) brought this action asserting several claims under the Federal Communications Act of 1934 (“FCA”), 47 U.S.C. §§ 605 et seq., against Salvatore Barretta (“Barretta”) and 277 Gold Inc. (“277 Gold”) (collectively, “Defendants”). Plaintiff moved for default judgment upon Defendants' failures to answer or otherwise respond to the Complaint despite proper service. On March 21, 2019, the Honorable Nina Gershon referred the motion to this Court for a report and recommendation.

         Based on a review of the well-pleaded allegations and evidence presented in Plaintiff's filings, this Court respectfully recommends Plaintiff's motion for default judgment be granted in part and denied in part, and that damages be entered as described herein.


         a. Factual History

         Plaintiff, a California corporation, acquired exclusive nationwide closed-circuit rights to Floyd Mayweather, Jr. v Andre Berto WBA/WBC World Welterweight Championship Fight Program (the “Program”), which was broadcast nationwide on September 12, 2015. Dkt. No. 1 (“Compl.”) ¶¶ 6, 16. Plaintiff granted various commercial entities the rights to publicly exhibit the Program for a fee under sublicensing agreements. Id. ¶ 17. The interstate transmission of the Program was encrypted and made available only to those commercial locations that entered into these sublicensing agreements with Plaintiff. Dkt. No. 12-2 (“Gagliardi Aff.”) ¶ 11. These entities were provided with electronic decoding equipment and satellite coordinates to receive the broadcast signal. Id.

         At the time of the Program's broadcast, 277 Gold operated the commercial establishment doing business as Brownstone Bar & Restaurant, located at 277 Gold Street, Brooklyn, New York 11201. Compl. ¶ 7. Barretta is listed as the “Principal” on 277 Gold's New York State liquor license. Id. ¶ 8. Defendants were not authorized through a sublicensing agreement to display the Program. Gagliardi Aff. ¶ 3. Nevertheless, on the night of September 12, 2015, Defendants broadcasted the Program on its premises. Compl. ¶ 11. Plaintiff's investigator, Raymond Smith, observed the Program being broadcast on five televisions. Dkt. No. 12-3 at 23-24 (“Smith Aff.”). Smith reported paying no cover charge and did not report seeing any advertisements of the Program at 277 Gold. Id. Smith also observed the capacity of 277 Gold to be approximately 100 persons and counted the number of patrons at three separate points during the night, finding twenty-three, twenty-three, and twenty-six patrons respectively. Id.

         b. Procedural History

         Plaintiff brought this action against Defendants on September 10, 2018.[1] Compl. ¶ 8. 277 Gold was duly served with copies of the Summons and Complaint via the Secretary of State on September 24, 2018, and Barretta was duly served via a process server on December 12, 2018. Summonses Returned Executed, Dkt. Nos. 5, 9. Upon Defendants' failure to answer or otherwise respond to the Complaint, the Clerk of Court issued certificates of Defendants' default pursuant to Fed.R.Civ.P. 55(a). Dkt. Nos. 8, 11. Plaintiff filed the instant motion for default judgment on March 19, 2019. Dkt. No. 12 (“Mot. Default J.”) at 1.


         I. Legal Standards

         a. Default Judgment

         The Federal Rules of Civil Procedure set forth a two-part procedure for a plaintiff seeking default judgment against a defendant. Pursuant to Rule 55(a), a clerk must enter a default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed.R.Civ.P. 55(a). Upon this entry of default against the defendant, the court may enter a default judgment on a plaintiff's motion if the defendant does not appear or move to set aside the entry of default per Rule 55(c). Fed.R.Civ.P. 55(b)(2).

         A defendant in default is deemed to have admitted all of the well-pleaded allegations concerning liability in the complaint. See Greyhound Exhibitgroup v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Default judgment is only appropriate, however, where the court, taking all factual allegations as true and drawing all reasonable inferences in favor of plaintiff, finds that plaintiff has sufficiently alleged defendant's liability as to each cause of action as a matter of law. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); see also Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688 F.Supp.2d 150, 153 (E.D.N.Y. 2010) (“[A]fter default . . . it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law”) (citations omitted). A district court retains the discretion to determine whether a default judgment is appropriate based on the specific circumstances of a given case. Enron Oil Corp. v. Diakuhura, 10 F.3d 90, 95 (2d Cir. 1993); see also Taylor v. 312 Grand St. LLC, No. 15-CV-5410 (BMC), 2016 U.S. Dist. LEXIS 36623, at *7 (E.D.N.Y. Mar. 22, 2016) (“[J]ust because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right.”) (citations omitted).

         Unlike allegations pertaining to liability, allegations pertaining to damages are not deemed admitted upon entry of default. See Greyhound Exhibitgroup, 973 F.2d at 158. Rather, the Court must conduct an analysis to establish damages to a “reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). However, a court need not conduct an evidentiary hearing to determine damages so long as there is a basis for the damages specified, which may be established “upon a review of detailed affidavits and documentary evidence.” J & J Sports Prods. v. Emily Bar Rest. Inc., No. 15-CV-6499 (RJD), 2016 U.S. Dist. LEXIS 133905, at *5 (E.D.N.Y. Sep. 27, 2016) (citations omitted), adopted by, 2016 U.S. Dist. LEXIS 152074 (E.D.N.Y. Nov. 2, 2016).

         b. The Federal Communications Act of 1934

         Plaintiff initially asserted claims under both Sections 605 and 553 of the FCA. Compl. ¶ 1. The “law in this Circuit is clear that a plaintiff may recover under only one of the statutes.” Circuito Cerrado, Inc. v. Pizzeria y Pupuseria Santa Rosita, Inc., 804 F.Supp.2d 108, 114 (E.D.N.Y. 2011). However, Plaintiff appropriately requested damages under only Section 605 in his Motion for Default Judgment. Mot. Default J. at 2-3. Therefore, this Court will proceed to a discussion of Defendants' liability under Section 605 and the damages owed to Plaintiff as a result. See, e.g., J & J Sports Prods. v. Brown, No. 18-CV-2489 (RJD) (ST), 2019 U.S. Dist. LEXIS 5694, at *5 (E.D.N.Y. Jan. 10, 2019) (analyzing liability and damages under Section 605 where Complaint asserted claims under Sections 553 and 605 but requested damages under only Section 605 in default judgment motion), adopted by, 2019 U.S. Dist. LEXIS 23523 (E.D.N.Y. Feb. 12, 2019); J & J Sports Prods. v. The Nest Rest. & Bar Inc., No. 17-CV-4107 (NGG) (RER), 2018 U.S. Dist. LEXIS 149579, at *4-5 (E.D.N.Y. Aug. 23, 2018) (same), adopted by, 2018 U.S. Dist. LEXIS 149579 (E.D.N.Y. Aug. 23, 2018).

         II. ...

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