United States District Court, E.D. New York
REPORT AND RECOMMENDATION
L. TISCIONE UNITED STATES MAGISTRATE JUDGE
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
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 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.
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
brought this action against Defendants on September 10,
2018. 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.
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).
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).
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).
The Federal Communications Act of 1934
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).