Opinion
00 Civ. 4417 (AKH)(AJP).
January 2, 2001.
REPORT AND RECOMMENDATION
To the Honorable Alvin K. Hellerstein, United States District Judge:
Plaintiff Coast to Coast Fabrics Inc. commenced this action on or about June 15, 2000 against defendants Tracy Evans Ltd. and T.J. Maxx. (Dkt. No. 1: Compl.) On August 16, 2000, plaintiff filed an Amended Complaint, adding Tiffany Lincoln Textiles, Inc. as a defendant. (Dkt. No. 6: Am. Compl.) The Amended Complaint asserts claims for copyright infringement of plaintiff's copyrighted textile design. (Id. ¶¶ 5-21.)
Plaintiff Coast to Coast settled with defendants Tracy Evans and T.J. Maxx for $15,000. (Fogel 12/14/00 Aff. ¶ 6; see also Dkt. No. 14:11/1/00 Order.)
On or about October 27, 2000, Judge Hellerstein entered a default judgment against defendant Tiffany and referred the matter to a Magistrate Judge for an inquest as to damages. (Dkt. No. 11:10/27/00 Default Judgment; see also Dkt. No. 12: Order of Reference.)
For the reasons set forth below, the Court recommends that plaintiff Coast to Coast be awarded $26,776.75 for damages and $205 for costs against defendant Tiffany.
FACTS
"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.) (quoting 10A C. Wright, A. Miller M. Kane, Federal Practice Procedure: Civil 2d § 2688 at 58-59 (3d ed. 1998)). The Amended Complaint and Plaintiff's Inquest Submission
Accord, e.g., Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *1 (S.D.N.Y. July 11, 2000) (Peck, M.J.); KingVision Pay-Per-View, Ltd., Corp. v. New Paradise Restaurant, 99 Civ. 10020, 2000 WL 378053 at *1 (S.D.N.Y. April 11, 2000) (Peck, M.J.), report rec. adopted, slip op. (S.D.N.Y. May 18, 2000) (Pauley, D.J.); Independent Nat'l Distrib., Inc. v. Black Rain Communications, Inc., 94 Civ. 8464, 1996 WL 238401 at *2 (S.D.N.Y. April 4, 1996) (Keenan, D.J. Peck, M.J.).
Coast to Coast is the registered copyright owner of a copyright in a work of art that it uses on textiles for wearing apparel. (Dkt. No. 6: Am. Compl. ¶¶ 5-11.) Defendants have manufactured and sold fabrics and textiles containing a design copied from plaintiff's copyrighted work. (Id. ¶¶ 13-19.) Specifically, defendant Tracy Evans purchased the infringing fabric from defendant Tiffany, manufactured garments from that fabric and sold the infringing garments to defendant T.J. Maxx. (Fogel 12/14/00 Aff. ¶¶ 3-4.)
Based on two invoices that plaintiff obtained from defendant Tracy Evans, Tiffany sold the fabric to Tracy Evans for $26,776.75. (Fogel 12/14/00 Aff. ¶¶ 11-12 Ex. A.)
Procedural Background
As noted above, on or about October 27, 2000, Judge Hellerstein entered a default judgment against Tiffany and referred the matter to me for an inquest as to damages. (Dkt. Nos. 11-12.) By Orders dated November 1, 2000 and November 14, 2000, the Court ordered an inquest on written submissions, with plaintiff's submission due (and received) by December 15, 2000 and Tiffany's opposition papers due December 29, 2000. (Dkt. Nos. 13 17: 11/1/00 11/14/00 Orders.) Tiffany, however, did not submit any opposition papers.
DISCUSSION
The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. Conti Commodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
Accord, e.g., Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *2 (S.D.N.Y. July 11, 2000) (Peck, M.J.);KingVision-Pay-Per-View, Ltd., Corp. v. New Paradise Restaurant, 99 Civ. 10020, 2000 WL 378053 at *1 (S.D.N.Y. April 11, 2000) (Peck, M.J.),report rec. adopted, slip op. (S.D.N.Y. May 18, 2000) (Pauley, D.J.);Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 624 (S.D.N.Y. 1998) (Carter, D.J. Peck, M.J.); see also, e.g., Semi Conductor Materials, Inc. v. Agriculture Inputs Corp., 96 Civ. 7902, 1998 WL 388503 at *8 (S.D.N.Y. June 23, 1998) (Kaplan, D.J. Peck, M.J.).
A copyright owner may recover, as damages, the infringer's profits on sales of the infringing goods. 17 U.S.C. § 504 (a)-(b). "In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." 17 U.S.C. § 504(b).
Accord, e.g., Hamil America, Inc. v. GFI, 193 F.3d 92, 104 (2d Cir. 1999), cert. denied, 120 S.Ct. 1171 (2000); Rogers v. Koons, 960 F.2d 301, 312 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365 (1992); 2 William F. Patry, Copyright Law Practice at 1164-67 (1994).
Accord, e.g., Hamil America, Inc. v. GFI, 193 F.3d at 104; Rogers v. Koons, 960 F.2d at 312; 2 William F. Patry, Copyright Law Practice at 1164-67.
Here, plaintiff Coast to Coast has proved that Tiffany had gross sales of the infringing fabric (to defendant Tracy), of $26,776.75. (Fogel 12/14/00 Aff. ¶¶ 11-12 Ex. A.) Tiffany has not responded and therefore has not proved any deductible expenses. Accordingly, plaintiff Coast to Coast should be awarded judgment against Tiffany for $26,776.75 in damages. E.g., Haretz Daily Newspapers, Ltd. v. Chani Inc., 98 Civ. 2878, 2000 WL 703785 at *2 (S.D.N.Y. May 31, 2000);Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 670 F. Supp. 1133, 1139 (E.D.N.Y. 1987), aff'd mem., 862 F.2d 304 (2d Cir. 1988).
While plaintiff Coast to Coast received $15,000 in settlement from the two non-defaulting defendants, that amount reflects damages/profits of those two defendants, and the Court sees no reason why Tiffany would be entitled to any damage reduction from that settlement. (See Fogel 12/19/00 Letter to Court.)
Awardable costs are the filing fee of $150 and $55 for service of process costs, for a total of $205. (See Fogel 12/14/00 Aff. ¶ 15.)See S.D.N.Y. Local Civil Rule 54.1(c)(10).
CONCLUSION
For the reasons set forth above, I recommend that the Court enter judgment in favor of plaintiff Coast to Coast against defaulting defendant Tiffany for damages of $26,776.75 and costs of $205.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Alvin K. Hellerstein, 500 Pearl Street, Room 910, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Hellerstein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
SERVICE
Plaintiff Coast to Coast is to serve this Order on defendant Tiffany Fabrics and file an affidavit of service with the Clerk of Court.