Joe Hand Promotions, Inc. v. Mohamed
| Decision Date | 09 July 2021 |
| Docket Number | 20-CV-557 (KAM)(RLM) |
| Parties | JOE HAND PROMOTIONS, INC., Plaintiff, v. ALY MOHAMED, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Joe Hand Promotions, Inc. (“Plaintiff”) initiated this action against Al Bait Baitak Corp, which does business as Your House Café (the “Establishment”) and against Aly Mohamed (“Mr. Mohamed”) individually, and as an officer, director, shareholder and/or principal of the Establishment, (collectively, “Defendants”), alleging violations of the Federal Communications Act of 1934 and copyright infringement in violation of the Copyright Act. 47 U.S.C. §§ 553, 605; 17 U.S.C. § 101, et seq.; (see generally ECF No. 1, Complaint (“Compl.”).)
Upon service of process upon the Defendants, and the failure of Defendants to appear, answer, or respond to the Complaint, Plaintiff now moves for default judgment. (ECF No. 17-1, Plaintiff's Memorandum in Support of Motion for Default Judgment “Pl. Mem.” at 8-16.) Defendants have not appeared, answered the Complaint, or submitted any opposition to Plaintiff's motions for entry of default judgment, despite being properly served with the summons and complaint and having received both notice and an opportunity to oppose the motion for a default judgment. (See ECF No. 4, Summons Issued as to Mohamed and the Establishment; ECF No. 8 & 9, Summons Returned Executed; ECF No. 17-10, Certificate of Service of Req. for Certificate of Default Judgment; Pl. Mem at 1.)
For the reasons set forth below, the court GRANTS Plaintiff's motion for entry of default judgment against Mr. Mohamed and the Establishment, jointly and severally, and orders that judgment be awarded in favor of Plaintiff in the amount of $7, 250, comprised of (1) basic statutory damages under the Communications Act of $1, 450, (2) enhanced statutory damages under the Communications Act of $2, 900, (3) basic statutory damages under the Copyright Act of $1, 450, and (4) enhanced statutory damages under the Copyright Act of $1, 450.
Where, as here, a defendant defaults, a court must accept the plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Bricklayers and Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 187-88 (2d Cir. 2015). Accordingly, the Court accepts Plaintiff's well-pleaded factual allegations as true for purposes of reviewing Plaintiff's motion for default judgment.
Plaintiff acquired exclusive rights to distribute to commercial establishments the Wilder vs. Fury Match, including all undercard matches and the entire television broadcast, which was broadcasted on December 1, 2018 (the “Program”) via closed circuit television, encrypted “IPTV”, cable, or satellite signal. (Compl. at ¶ 6.) Plaintiff, by contract, is also the copyright holder as to commercial distribution of the Program. (Id.) The Program originated via satellite uplink and was subsequently retransmitted to cable systems and satellite companies via satellite signal. (Id. at ¶ 19.) Plaintiff entered into subsequent agreements with various business entities in New York State, enabling these businesses to exhibit the Program to their patrons. (Id. at ¶ 20.) Plaintiff charges commercial establishments to air the Program using a graduated fee schedule, which fixes prices according to the size of the establishment and its fire code occupancy.
In order to combat signal piracy, Plaintiff hired investigative agencies to retain auditors to canvas and identify establishments that exhibited the Program without authorization from, or payment to, Plaintiff. (Pl. Mem at 3.) Plaintiff provided the auditors with a list of customers that were authorized to broadcast the Program in order to ensure the auditors would only visit locations that were not authorized to broadcast the Program. (ECF No. 17-6, Legal List; Hand Aff. at ¶ 8.) Plaintiff includes in its motion for default judgment a site inspection form filled out by one of the retained auditors, Cosmo Lubrano (“Mr. Lubrano”). (ECF No. 17-7, Site Inspection Form.) Mr. Lubrano states that on December 1, 2018, the night of the Program, he entered the Establishment and saw five televisions airing the Program for patron viewing. (Id.) Lubrano was not required to pay a cover charge to enter the Establishment and estimated the capacity of the Establishment at 1-100 people. (Id.) Mr. Lubrano also took photographs and videos which show the Establishment, airing the Program. (ECF No. 17-8, “Site Inspection Photographs”; Hand Aff. at ¶ 11.)
Plaintiff's affidavit states that Defendants and/or their agents unlawfully intercepted, received, and/or de-scrambled the Program's broadcast signal and thereafter exhibited the Program at the Establishment without Plaintiff's authorization. (Hand Aff. at ¶¶ 23-24.) Plaintiff further states that in order to broadcast the Program, Defendants either redirected a wireless signal from an adjacent residence to the Establishment, misrepresented the Establishment as a residence, removed an authorized satellite receiver from a residence to the Establishment, or unlawfully utilized over-the-top wireless internet streaming technologies. (Id. at ¶ 24.) According to Joe Hand (“Mr. Hand”), the individual owner of Joe Hand Promotions, the Program cannot be mistakenly or innocently intercepted. (Hand. Aff ¶ 12.)
Plaintiff filed the instant action on January 31, 2020, naming Mohamed and the Establishment as Defendants. (See generally Compl.) Plaintiff thereafter properly served the Summons and Complaint on Defendants. (ECF No. 1, Compl.; ECF No. 4, Summons Issued as to Mohamed and the Establishment; ECF Nos. 8 & 9, Summons Returned Executed as to Mohamed and the Establishment.) The Defendants failed to file an answer, and Plaintiff took no further immediate action. On July 8, 2020, Magistrate Judge Roanne L. Mann ordered Plaintiff to show cause as to why the case should not be dismissed for lack of prosecution, and ordered the Plaintiff to promptly serve copies of the Order on Defendants. (Dkt. Order July 8, 2020.) Plaintiff filed a timely response to the order on July 15, 2020, citing administrative concerns related to the COVID-19 pandemic, and submitted a certificate of service of the Order on Defendants. (ECF No. 12, Plaintiff Response to First Order to Show Cause; ECF No. 11-3, Certificate of Service of Order to Show Cause.)
Upon Plaintiff's request, and in light of Defendants' failure to answer the Complaint or otherwise defend the action, the Clerk of the Court entered default against Defendants on July 20, 2020. (ECF No. 11, Plaintiff Request for Certificate of Default; ECF No. 13, Clerk's Entry of Default.) Plaintiff took no further immediate action, and Magistrate Judge Roanne L. Mann again directed Plaintiff to show cause as to why the case should not be dismissed for lack of prosecution, again ordering the Plaintiff to promptly serve copies of the Order on Defendants. (Dkt. Order Oct. 28, 2020.) Plaintiff filed a timely response to the order on November 3, 2020, again citing administrative concerns related to the COVID-19 pandemic. (ECF No. 18, Plaintiff Response to Second Order to Show Cause.) Plaintiff also provided evidence it properly served the October 28 Order on Defendants. (ECF No. 16, Certificate of Service of Second Order to Show Cause.)
On November 3, 2020, Plaintiff filed a motion for default judgment. (ECF No. 17, Motion for Default Judgment.) Plaintiff seeks (1) entry of a default judgment; (2) basic statutory damages in the amount of $10, 000 against Defendants, jointly and severally, pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) for violation of 47 U.S.C. § 605(a); (3) enhanced statutory damages in the amount of $10, 000 against Defendants, jointly and severally, pursuant to 47 U.S.C. § 605(e)(3)(C)(ii) for violation of 47 U.S.C. § 605(a); (4) basic statutory damages in the amount of $5, 000 against Defendants, jointly and severally, pursuant to 17 U.S.C. § 504(c)(1) for copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101, et seq.; and (5) enhanced statutory damages in the amount of $5, 000 against the Defendants, jointly and severally, pursuant to 17 U.S.C. § 504(c)(2) for copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101, et seq. (Pl. Mem. at 8-16.) Plaintiff properly served its motion for default judgment on Mr. Mohamed, at the last known address of Mr. Mohamed's residence, and on the Establishment, at the last known address of its principal place of business. (ECF No. 17-10, Certificate of Service.) To date, Defendants have not answered or otherwise responded to Plaintiff's Complaint, nor have Defendants responded to Plaintiff's motion for entry of default judgment.
Pursuant to Federal Rule of Civil Procedure 55, a movant must complete a two-step process to obtain a default judgment. Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 123 (E.D.N.Y. 2011); La Barbera v. Fed. Metal & Glass Corp., 666 F.Supp.2d 341, 346-47 (E.D.N.Y. 2009). First, the Clerk of the Court must enter default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Fed.R.Civ.P. 55(a); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Second, upon the Clerk's entry of default, the movant “may then make an application for entry of a default judgment, pursuant to Fed R. Civ. P. 55(b).” Rodriguez, 784 F.Supp.2d at 123. The court must exercise...
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