Opinion
DOCKET NO. 99-CV-0983E(M)
Opinion Filed: October 26, 2000
Julie Cohen Lonstein, Esq., c/o Lonstein Law Office, Ellenville, NY, Attorneys for the Plaintiff.
MEMORANDUM and ORDER
Plaintiff filed this action December 10, 1999 claiming that the above-captioned defendants exhibited a televised boxing match January 16, 1999 without its authorization. Inasmuch as this is an action brought pursuant to 47 U.S.C. § 553 and 605, jurisdiction is proper under 28 U.S.C. § 1331. The Clerk of the Court entered an Entry of Default against defendants West, Rivera and Rodriguez July 11, 2000. Presently before this Court is plaintiff's motion for default judgment and for a determination of damages. Such motion will be granted.
It is axiomatic to state that Rule 55 of the Federal Rules of Civil Procedure ("FRCvP") envisions a two-step process for entering default judgment. A party must first show, "by affidavit or otherwise," that an opposing party is in default and the Clerk must then "enter the party's default." FRCvP 55(a). After the Clerk has made an entry of default, an application for judgment by default may then be sought. See FRCVP 55(b). FRCVP 55(b)(1) provides that "[w]hen the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person." In all other cases, the party entitled to default judgment must apply to the court. FRCvP. 55(b)(2). "If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States." FRCvP 55(b)(2). Insofar as the damages sought herein are not for a sum certain, FRCvP 55(b)(2) applies and this court must determine the propriety and amount a default judgment.
As stated previously, the plaintiff herein has already secured an Entry of Default. Consequently, plaintiff is entitled to default judgment if both procedural and substantive requirements are met. See Thomas v. Biocine Sclavo, No. CIVA94CVI568RSP/DNH, 1998 WL 51861, at *3 (N.D.N.Y Feb. 4, 1998). Rule 55(b) of the Local Rules of Civil Procedure ("LRCvP") states that "[a]n application to the Court for an entry of default judgment * * * shall be accompanied by a certificate of the Clerk of the entry of the default and by a copy of the pleading to which no response has been made." Plaintiff, however, has done neither and has been derelict in its affirmative duty to provide such materials. Nevertheless, insofar as the record clearly indicates as to whom an Entry of Default was secured and to what pleading the default judgment is sought, such oversight is not fatal. Consequently, the undersigned finds that plaintiff's submissions are procedurally adequate. Further and because the factual allegations of plaintiff's Complaint are taken as true, this Court also finds that the substantive prerequisites to obtaining a default judgment are met — viz., as is more fully explained below, plaintiff has alleged facts sufficient to state a claim for relief. Accordingly, default judgment will be entered against defendants West, Rivera and Rodriguez.
Once a default judgment has been entered, the allegations of a complaint which establish a defendant's liability are to be accepted as true, except for those relating to the amount of damages. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Bambu Sales, Inc. v Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995). Plaintiff's papers reveal that it is in the business of distributing television broadcasts of sporting events and, in particular, it was granted the right to distribute such in the State of New York with regard to the "Tyson/Botha" bout in January 1999. Nonetheless, the Complaint indicates that the above-captioned defendants each used a "satellite receiver" or a "cable converter box" to "intercept plaintiff's [boxing] broadcast which originated via satellite uplink" without first securing the permission of plaintiff. Compl. ¶ 26. Such interception being willful, its subsequent exhibition was for the purpose of "direct or indirect commercial advantage or private financial gain." Id. at ¶ 25. Consequently and because plaintiff's allegations are accepted as true, each defendant's unlicensed reception and willful exhibition of such transmission have violated sections 553 and 605 of title 47.
Both sections allow plaintiff to elect to recover either actual damages and lost profits, or statutory damages. See 47 U.S.C. § 553(c)(3)(A) and § 605(e)(3)(C)(i). Where a defendant is liable under both sections, the plaintiff is entitled to have damages awarded under section 605 which provides for greater recovery than does section 553. See International Cablevision, Inc. v. Sykes, 75 F.3d 123, 127 (2d Cir. 1996). Plaintiff desires statutory damages under section 605.
Section 605(e)(3)(C)(i)(II) states that "the party aggrieved may recover an award of statutory damages for each violation * * * involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just * * *." In addition, section 605(e)(3)(C)(ii) provides that "where the court finds that the violation was committed willfully and for the purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation * * *." Section 605 does not, however, give guidelines for determining statutory damages and relies instead on this Court's discretion.
Considering all the circumstances in this case, this Court finds that an award of $1,000 in statutory damages against defendant West and $1,000 in statutory damages against defendants Rivera and Rodriguez is appropriate under section 605(e)(3)(C)(i)(II). Further and because plaintiff has established that defendants' violations were willful, an additional award of $3,000 will be awarded against and as to each defendant party pursuant to section 605(e)(3)(C)(ii). See Time Warner Cable v. Goodies Luncheonette, Inc., 77 F. Supp.2d 485, 490-491 (S.D.N.Y 1999) (where no special circumstances are shown, a trebling of damages is a "reasonable deterrent against future violations").
Section 605(e)(3)(B)(iii) states that this Court "shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails." In support thereof, plaintiff represents that it incurred litigation expenses of $3,940. Such amount is comprised of the following expenses:
(1) Filing Fee — $75 per party defendant
(2) Attorney Fees — $1,500 per party defendant representing 10 hours hourly at the rate of $150 per hour.
(3) Service of Process — $120 per party defendant
(4) Investigative Cost — $275 per party defendant
Insofar as defendants West, Rivera and Rodriguez actually consist of only two party defendants, such amount totals $1,970 per party defendant. August 17, 2000 Lonstein, Esq., Aff. at 6.
Upon consideration of plaintiff's request for costs and attorney fees, this Court determines that only a total amount of $2,440 has been justified. In particular, while plaintiff has substantiated its costs, there is no such substantiation for the requested amount of attorney fees. In this regard, plaintiff has failed, for example, to submit copies of any contemporaneous time records or copies of any purported claim letters. Further, in light of the fact that no such records have been submitted and that the claims made against the defendants are duplicative, it appears unlikely that the ten hours expended as against one defendant was incurred independently of the other. As such, plaintiff shall only be entitled to recover $750 in attorney fees from each party defendant.
Accordingly, it is hereby ORDERED that plaintiff's motion for default judgment as against defendants West, Rivera and Rodriguez is granted, that plaintiff shall recover from defendant West an amount of $4,000 and an additional amount of $1,220 representing costs and attorney fees and that plaintiff shall recover from defendants Rivera and Rodriguez — jointly and severally — an amount of $4,000 and an additional amount of $1,220 representing costs and attorney fees.