Opinion
02 Civ. 0772 (GBD) (AJP).
January 26, 2005
REPORT AND RECOMMENDATION
To the Honorable George B. Daniels, United States District Judge:
On December 15, 2004, Judge Daniels granted a default judgment for plaintiff Entertainment by JJ, Inc. ("JJ") against defendants PJ's Lounge and its owner, Patricia Peek, and referred the matter to me for an inquest as to damages. (Dkt. Nos. 6-7.) I directed JJ to provide proof of its inquest damages by January 10, 2005, which it did (Dkt. No. 9), and for defendants to submit inquest opposition papers by January 24, 2005, which defendants did not. (See Dkt. No. 8: 12/21/04 Order.)
For the reason set forth below, plaintiff JJ should be awarded statutory damages of $20,000 plus costs of $185.
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 C. Wright, A. Miller M. Kane,Federal Practice Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).
The complaint alleges that defendants violated the Federal Communications Act of 1934, 47 U.S.C. §§ 553 and 605, by intercepting, receiving, descrambling and exhibiting, without leave or permission from JJ, the closed-circuit, pay-per-view March 13, 1999 championship boxing match between Evander Holyfield and Lennox Lewis. (See generally Dkt. No. 1: Compl.) JJ seeks enhanced statutory damages of $170,000, plus attorneys' fees and costs. (See Dkt. No. 9: JJ Inquest Submission.)
Plaintiff JJ's licensing fee for the fight was $20 times the maximum fire code occupancy of the licensee, plus $50. (Dkt. No. 9: Corwin Aff. ¶ 9.) Plaintiff's investigator determined that defendant PJ's Lounge had a capacity of 50 people and that 32-36 people were present on February 13, 1999. Thus, if PJ's Lounge had obtained a license, its license fee would have been $1050 ($20 times 50 person capacity, plus $50). (Corwin Aff. ¶ 9.)
The complaint is based on the March 13, 1999 Holyfield-Lewis fight (Compl. ¶ 7), while plaintiff's inquest papers are based on theFebruary 13, 1999 Oscar de la Hoya — Ike Quartey fight (see Dkt. No. 9: Corwin Aff. ¶¶ 5-6, 10 Investigator O'Neal Aff). Counsel's sloppiness in this regard is disturbing, but a default has already been entered, and the damage amount is the same whichever event actually was pirated.
ANALYSIS
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. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
I have repeatedly awarded statutory damages of $20,000 in pay-per-view interception and transmission cases such as this, and see no reason to deviate from my prior decisions, nor to reset forth that analysis in full here. See, e.g., Joe Hand Promotions, Inc. v. Soto, 01 Civ. 0329, 2003 WL 22962810 at *1-2 n. 3 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing cases), report rec. adopted, 01 Civ. 0329, Dkt. No. 17, Order (S.D.N.Y. Jan. 22, 2004) (Daniels, D.J.).
The Court declines to award attorneys' fees because (1) the Court's December 21, 2004 inquest order "strongly suggest[ed that] plaintiff's counsel review my prior decisions in this area and be guided accordingly in what statutory damages it requests" (Dkt. No. 8) and yet plaintiff's counsel submitted what appears to be the "usual" brief requesting statutory damages of $170,000 without even attempting to distinguish my prior decisions, and (2) because of the error referred to in footnote 1 above.
As to costs, plaintiff seeks costs including not-yet-incurred costs for enforcement of the judgment. The Court only allows $150 for the filing fee and $35 for service costs, for a total of $185.
CONCLUSION
Plaintiff JJ should be awarded judgment against defendants jointly and severally for statutory damages of $20,000 and costs of $185.
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 George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. 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).