Opinion
03 Civ. 4168 (GBD) (RLE).
January 19, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, DIRECTV, Inc. ("DIRECTV"), initiated this action against defendant, Bill Sardone ("Sardone"), on June 9, 2003, alleging violations of 47 U.S.C. §§ 605(a) and 605(e)(4), and 18 U.S.C. §§ 2412 (1)(b) and 2511(1)(a). DIRECTV maintains that Sardone used a pirate access device to gain unauthorized access to its satellite signal. On March 15, 2004, the Honorable George B. Daniels entered a default judgment against Sardone, and referred the matter to the undersigned for an inquest on damages. DIRECTV seeks $10,000 in statutory damages, and $5,991.45 in attorney's fees and costs. For the reasons which follow, I recommend that a judgment be entered for DIRECTV in the amount of $10,000 for the statutory violations, and $5,812.45 for attorney's fees and costs.
II. DISCUSSION
Sardone has failed to appear or defend in this action, and has been adjudged in default by the order entered by Judge Daniels. Thus, Sardone's liability for violations of 47 U.S.C. §§ 605(a) and 605(e)(4), and 18 U.S.C. §§ 2412 (1)(b) and 2511 (1)(a) are established on the well-pleaded allegations of the complaint. See Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 845 (2d Cir. 1995). "While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation." DIRECTV v. Hamilton, 215 F.R.D. 460, 462 (S.D.N.Y. 2003) (citation omitted). "In determining damages not susceptible to simple mathetical calculations, a court has the discretion to reply on detailed affidavits or documentary evidence in lieu of an evidentiary hearing." Id. (citation omitted). The Court directed DIRECTV to submit a memorandum, affidavit, and any other documentation in support of its application for statutory damages and attorney's fees. DIRECTV requests an award of statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) or, alternatively, 18 U.S.C. § 2520(b).
A. Statutory Damages Pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II)
The measure of statutory damages for violations of 47 U.S.C. §§ 605(a) and 605(e)(4) is set forth in 47 U.S.C. § 605(e)(3)(C)(i)(II). In pertinent part, 47 U.S.C. § 605(e)(3)(C)(i)(II) provides that:
the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just.47 U.S.C. § 605(e)(3)(C)(i)(II). DIRECTV seeks damages for a single violation of 47 U.S.C. § 605(e)(4) or, alternatively, for a single violation of 47 U.S.C. § 605(a). Although DIRECTV suggests that the use of a single pirate access device over a period of time may constitute multiple violations under 47 U.S.C. § 605(e)(3)(C)(i)(II), it seeks to recover statutory damages for a single violation under the statute. See Time Warner Cable of New York City v. Dockins, 1998 U.S.Dist. Lexis 22698 (S.D.N.Y. Sept. 9, 1998).
DIRECTV asks the Court to award the maximum statutory damages of $10,000. It maintains that without discovery from Sardone it cannot determine how many access cards were programmed by Sardone or to what transmissions he gained unauthorized access. Memorandum Concerning Damages on Default ("Mem.") at 3. DIRECTV also states that it cannot determine expenses saved, or profits made by Sardone, or the revenues it has lost. Id.
The Court also is unable to determine actual damages to DIRECTV. The record, however, indicates that Sardone purchased the pirate access device on September 24, 2000, and that his conduct was willful. It was not until April 2004 that DIRECTV's conditional access technology made the pirate access device useless. Mem. at 4. Thus, Sardone had unauthorized access to DIRECTV's satellite signal and transmissions for more than three years. There is no discovery from Sardone to rebut the presumption that he used the pirate access device from the date of purchase until technology made it unusable. This prolongued use justifies an award at the maximum level authorized. Therefore, I find that a statutory damage award of $10,000 is appropriate under 47 U.S.C. § 605(e)(3)(C)(i)(II), and recommend that damaged be awarded in that amount.
B. Statutory Damages Pursuant to 18 U.S.C. § 2520(b)
DIRECTV also contends it is entitled to an award of statutory damages pursuant to 18 U.S.C. § 2520(b). Civil damages recoverable for violations of 18 U.S.C. §§ 2511(1)(a) and § 2512(1)(b) are enumerated in 18 U.S.C. § 2520(b), which provides, in pertinent part that:
In an action under this section, appropriate relief includes —
(1) such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection (c) and punitive damages in appropriate cases; and (3) a reasonable attorney's fee and other litigation costs reasonably incurred.18 U.S.C. § 2520(b). Damages are available at a rate of $100 per day. Because Sardone apparently had illegal use for more than three years, damages in excess of $10,000 would be possible. DIRECTV may only recover statutory damages pursuant to either 47 U.S.C. § 605(e)(3)(C)(i)(II) or 18 U.S.C. § 2520(b). It has elected to receive damages under § 605, the calculation under § 2520 confirms the reasonableness of the award recommended under § 605.
C. Attorney's Fees
DIRECTV also seeks attorney's fees and costs incurred in the amount of $5,991.45. Declaration in Support of Attorney's Fees and Costs by Daniel Jacobson ("Jacobson Decl."). Attorney's fees and costs are available for violation of 47 U.S.C. §§ 605(a) and 605(e)(4), and violations of 18 U.S.C. §§ 2511 and 2512. As a prevailing aggrieved party, DIRECTV is entitled to full recovery of costs, including reasonable attorney's fees under 47 U.S.C. § 605(e)(3)(B)(iii). "[F]ee awards in the Second Circuit are computed under the lodestar method, which multiplies hours reasonably spent by counsel times a reasonably hourly rate." Gen. Elec. Co. v. Compagnie Euralair, S.A., 1997 WL 397627, at *4 (S.D.N.Y. 1997). The lodestar figure is strongly presumed to be a reasonable fee. See City of Burlington v. Dague, 505 U.S. 557, 562 (1992). In determining a reasonably hourly rate for counsel, the Courts may consider "market rates prevailing in the community of similar services by lawyers of reasonably comparable skills, experience, and reputation." Gierlinger v. Gleason, 160 F.3d 855, 882 (2d Cir. 1998) (citation omitted).
The Court directed DIRECTV to support its application for attorney's fees by submitting contemporaneous time record that detail, "for each attorney, the date, the hours expended, and nature of the work done." N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1982). The Court also directed DIRECTV to submit a supplemental declaration in support of its request for attorney's fees and costs. See Supplemental Declaration in Support of Attorney's Fees and Costs by Daniel Jacobson, dated January 12, 2006. Although DIRECTV requests attorney's fees and costs in the amount of $5,991.45, its contemporaneous time record indicates that the attorney's fees and costs are actually $5,812.45. The Court finds the hours and rates reasonable. Therefore, I recommend that DIRECTV be awarded $5,812.45 for attorney's fees and costs.
III. CONCLUSION
For the reasons set forth above, I recommend that Sardone pay statutory damages of $10,000, plus attorney's fees and costs of $5,812.45, for a total of $15,812.45.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995);