Opinion
No. 06-CV-4020 (FB) (RLM).
January 29, 2007
For the Plaintiff: JULIE COHEN LONSTEIN, ESQ., Ellenville, NY.
MEMORANDUM AND ORDER
On August 16, 2006, plaintiff filed a complaint seeking damages for defendants' allegedly unauthorized interception and exhibition of a television program ("the Program") to which plaintiff held distribution rights. Defendants having failed to respond to the complaint or otherwise defend against this action, see Docket Entry #9 (Clerk's Notation of Default dated December 22, 2006), plaintiff moves for entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2).
A defendant's default is an admission of all well-pleaded allegations in the complaint except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). A district court must nevertheless determine whether the allegations state a claim upon which relief may be granted, see Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); if they do, damages "must be established by the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibit group, 973 F.2d at 158.
By alleging that defendants intercepted the Program by means of an "illegal cable converter box or device," plaintiff has stated a claim under 47 U.S.C. § 553. See International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1003 (2d Cir. 1993) (" Sykes I"). By alleging that defendants intercepted the Program by means of an "illegal satellite receiver," plaintiff has stated a claim under 47 U.S.C. § 605(a). See International Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir. 1996) (" Sykes II") (quoting 1984 U.S.C.C.A.N. 4746). Plaintiff has not, however, stated a claim under 47 U.S.C. § 605(e)(4), since the complaint contains no allegations that defendants were anything other than end users of an illegal device. See Garden City Boxing Club, Inc. v. Morales, 2005 WL 2476264, at *5 (E.D.N.Y. Oct. 5, 2005) (citing cases holding that § 605(e)(4) only applies to manufacturers and distributors).
"The Second Circuit has held that where a defendant is found to have violated both [§ 553 and § 605(a)], the court should award damages pursuant to 47 U.S.C. § 605." Time Warner Cable of New York City v. Taco Rapido Rest., 988 F. Supp. 107, 110 (E.D.N.Y. 1997) (citing Sykes I, 997 F.2d at 1007). Relief available under that section includes damages, injunctive relief, attorney fees and costs. See 47 U.S.C. § 605(e)(3)(B).
Plaintiff's motion for entry of default judgment is granted. The matter is referred to the assigned magistrate judge for determination of the relief to be awarded under 47 U.S.C. § 605(e).
SO ORDERED.