Summary
awarding $20,000 to plaintiff when defendant restaurant illegally intercepted and displayed a pay-per-view boxing match to 10 to 15 customers
Summary of this case from J J Sports Productions, Inc. v. RojasOpinion
01 Civ. 7575 (LAK) (AJP)
December 6, 2001
REPORT AND RECOMMENDATION
To the Honorable Lewis A. Kaplan, United States District Judge:
In response to plaintiff King Vision's motion for a default judgment, Judge Kaplan referred the matter to me for a Report Recommendation "with respect to the appropriate amounts of statutory damages." (Dkt. No. 5:10/24/01 Order.) The complaint in this case seeks damages against defendants under the Federal Communications Act of 1934, 47 U.S.C. § 553 and § 605. (Dkt. No. 1: Compl.)
For the reasons set forth below, the Court recommends an award of $20,000 in statutory damages, and attorneys' fees and costs of $2,690.
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 10AC. Wright, A. Miller M. Kane, Federal Practice Procedure: Civil 2d § 2688 at 58-59 (3d ed. 1998)).
Accord, e.g., Trustees of the Pension Welfare Funds of the Moving Picture Mach. Operators Union, Local 306 v. Gordon's Film Co. (New York) Int'l Inc., 00 Civ. 8452, 2001 WL 1415145 at *1 (S.D.N.Y. Nov. 13, 2001) (Peck, M.J.); Coast To Coast Fabrics, Inc. v. Tracy Evans, Ltd., 00 Civ. 4417, 2001 WL 5037 at *1 (S.D.N.Y. Jan. 2, 2001) (Peck, M.J.); Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *1 (S.D.N.Y. July 11, 2000) (Peck, M.J.); King Vision Pay-Per-View, Ltd. v. New Paradise Rest., 99 Civ. 10020, 2000 WL 378053 at *1 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.); Independent Nat'l Distrib., Inc. v. Black Rain Communications, Inc., 94 Civ. 8464, 1996 WL 238401 at *2 (S.D.N.Y. Apr. 4, 1996) (Keenan, D.J. Peck, M.J.).
The Complaint
King Vision entered into a closed-circuit television license agreement to exhibit the closed-circuit telecast of the March 13, 1999 championship boxing match between Evander Holyfield and Lennox Lewis (the "Event"), at closed-circuit locations such as theaters, arenas, bars, clubs, lounges and restaurants throughout New York. (Dkt. No. 1: Compl. ¶ 7.) The scrambled closed-circuit broadcast of the Event could only be exhibited in a commercial establishment that obtained a license from King Vision. (Compl. ¶¶ 9-11.) Defendant Papaci to Lidia Luncheonette, Inc. dba El Papisito Restaurant ("Papisito") and its owner defendant Rene German (Compl. ¶ 6) could have licensed the Event from plaintiff King Vision, but did not do so. (Compl. ¶ 12.) Nevertheless, on March 13, 1999, defendants will fully intercepted and received the Event and transmitted it to the Papisito's customers. (Compl. ¶¶ 14-18.)The complaint asserts causes of action for violation of the Federal Communications Act, 47 U.S.C. § 605 (Compl. ¶¶ 20-26) and 47 U.S.C. § 553 (Compl. ¶¶ 27-35).
EVIDENCE ON THE INQUEST AND ANALYSIS
King Vision's investigator found 10-15 people watching the Event at Papisito's. (Dkt. No. 8: King Vision 11/6/01 Supp. Br. Ex. D: Investigator Report Aff.) King Vision states that based on these figures, it would have charged Papisito a license fee of $2,500 for the event. (King Vision 10/19/01 Br. at 10.)
By Order dated October 29, 2001, I directed King Vision to "supplement its [inquest damages] papers with a discussion of cases awarding statutory damages" to King Vision and others under those sections of the Federal Communications Act, and also required defendants to respond to plaintiff King Vision's submissions by November 5, 2001. (Dkt. No. 7:10/29/01 Order.) The Court received the postal service return receipt for that Order, signed on behalf of defendants, but has not received any submission from defendants.
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., Trustees of the Pension Welfare Funds of the Moving Pictures Mach. Operators Union, Local 306 v. Gordon's Film Co. (New York) Int'l Inc., 00 Civ. 8452, 2001 WL 1415145 at *1 (S.D.N.Y. Nov. 13, 2001) (Peck, M.J.); Coast To Coast Fabrics, Inc. v. Tracy Evans, Ltd., 00 Civ. 4417, 2001 WL 5037 at *1 (S.D.N.Y. Jan. 2, 2001) (Peck, M.J.); Starbucks Corp. v. Morgan, 99 Civ. 1404, 2000 WL 949665 at *2 (S.D.N Y July 11, 2000) (Peck, M.J.); King Vision Pay-Per-View, Ltd. v. New Paradise Rest., 99 Civ. 10020, 2000 WL 378053 at *1 (S.D.N.Y. Apr. 11, 2000) (Peck, M.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.).
Pursuant to 47 U.S.C. § 605(e)(3)(C)(i)-(ii), the Court may award statutory damages of between $1,000 and $10,000, and where the violation is willful and for purposes of commercial advantage, additional damages of up to $100,000. For violation of 47 U.S.C. § 553, the Court may award statutory damages of $250 to $10,000, and may increase the amount to up to $50,000 for willful violations committed for purposes of commercial advantage. 47 U.S.C. § 553(c)(3)(A)(ii), (B). See generally, e.g., King Vision Pay-Per-View, Ltd. v. New Paradise Rest., 2000 WL 378053 at *2.
Plaintiff King Vision originally sought to cumulate all of these damages for a total of $170,000 in statutory damages. (See, e.g., Iannacone 10/18/01 Aff. ¶ 7(F); 10/19/01 King Vision "Statement of Damages"; King Vision 10/19/01 Br. at 7, 15, 19.) However, this Court, in a prior case involving King Vision, made clear that a plaintiff cannot recover under both 47 U.S.C. § 605 and § 553. King Vision v. New Paradise Rest., 2000 WL 378053 at *2; accord, e.g., Int'l Cablevision Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir.), cert. denied, 519 U.S. 929, 117 S.Ct. 298 (1996); Time Warner Cable v. Evans, 00 Civ. 1385, 2001 WL 1241756 at *4 (S.D.N.Y. Oct. 9, 2001) ("When a court determines that a defendant's conduct has violated both § 605 and § 553 of the Communications Act, a plaintiff may recover damages only under one of those sections."); Cablevision Sys. New York City Corp. v. Cruz, 00 Civ. 5931, 2001 WL 1388155 at *3 (S.D.N.Y. July 23, 2001), report rec. adopted, 2001 WL 951730 (S.D.N.Y. Aug. 21, 2001); Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp.2d 438, 441 (S.D.N Y 2001); Cablevision Sys. New York City Corp. v. Flores, 00 Civ. 5935, 2001 WL 761085 at *3 (S.D.N.Y. July 6, 2001); Time Warner Cable v. Barbosa, 98 Civ. 3522, 2001 WL 118608 at *5 (S.D.N.Y. Jan. 2, 2001), report rec. adopted, 2001 WL 180366 (S.D.N Y Jan. 19, 2001).
See also, e.g., Time Warner Cable v. Barnes, 13 F. Supp.2d 543, 548 (S.D.N.Y. 1998); TWC Cable Partners v. Multipurpose Elec. Int'l, Inc., No. CV-97-2568, 1997 WL 833471 at *1 (E.D.N.Y. Oct. 6, 1997); New Contenders, Inc. v. Diaz Seafood Corp., 96 Civ. 4701, 1997 WL 538827 at *1 (S.D.N.Y. Sept. 2, 1997); Time Warner Cable v. Olmo, 977 F. Supp. 585, 589 (E.D.N.Y. 1997); Time Warner Cable v. Taco Rapido Rest., 988 F. Supp. 107, 111 (E.D.N.Y. 1997). But see King Vision Pay-Per-View v. Las Cazuelas Mexican Rest., 99 Civ. 10041, 2000 WL 264004 at *3 (S.D.N.Y. Mar. 9, 2000) (awarding damages under both § 553 and § 605). Even if the Court could award damages under both § 605 and § 553, the Court would decline to do so here, since it would result in an award that is excessive under the circumstances.
Once this case was referred to me for a Report Recommendation, King Vision moderated its damage request:
While King Vision would be delighted in having this court award it the maximum amo[u]nt of statutory damages available under both sections of law violated by defendants, together with recovery of attorney's fees, counsel recognizes that case law suggests lower than maximum awards are given in cases such as the present one. Therefore King Vision respectfully requests that this Court be guided in awarding damages by the reasoning set forth in [inter alia, this Court's decision in King Vision v. New Paradise Rest. and the cases cited in fn. 4 below].
(Dkt. No. 8: King Vision 11/6/01 Supp. Br. at 3.)
In King Vision v. New Paradise Rest., this Court awarded King Vision $20,000 in statutory damages in a similar case. 2000 WL 378053 at *2 (citing Cablevision Sys. New York City Corp. v. Faschitti, 94 Civ. 6830, 1996 WL 48689 at *2-3 (S.D.N.Y. Feb. 7, 1996)). The Court believes that is an appropriate measure of statutory damages in this case as well.
The other cases cited by King Vision (King Vision 11/6/01 Supp. Br. at 3) resulted in similar awards. See, e.g., King Vision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp.2d at 441-43 ($15,000); King Vision Pay-Per-View, Ltd. v. Scott E's Pub, Inc., 146 F. Supp.2d 955, 961 (E.D.Wis. 2001) ($18,375); King Vision Pay-Per-View, Ltd. v. Las Cazuelas Mexican Rest., 99 Civ. 10041, 2000 WL 264004 at *3 (S.D.N.Y. Mar. 9, 2000) ($12,500); Time Warner Cable v. Googies Luncheonette, 77 F. Supp.2d 485, 492 (S.D.N.Y. 1999) ($4,000, $9,000 and $15,000 as to each of three defendants).
Some decisions, instead of a flat amount, have awarded a per customer based damages award of $50 to $300 per patron. See, e.g., New Contenders, Inc. v. Diaz Seafood Corp., 1997 WL 538827 at *2 ($300 per customer); Cablevision v. Faschitti, 1996 WL 48689 at *2 (citing cases with awards of $50 and $250 per customer). Since King Vision's investigator reported only 10-15 patrons during the Event (see page 3 above), King Vision would get even less under this method.
King Vision also seeks costs of $350 ($150 court filing fee and $200 process server fees) and attorney fees of $2,340. (See Iannacone 10/18/01 Aff. ¶¶ 3-4 Ex. A.) King Vision should be awarded those amounts.
CONCLUSION
For the reasons stated above, the Court should award King Vision statutory damages of $20,000 plus $2,690 in attorneys' fees and costs.
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 Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. 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).