Kingvision Pay-Per-View Ltd. v. Villalobos

• Decision Date: 08 May 2008
• Docket Number: No. 06-CV-2510 (FB)(MDG).,06-CV-2510 (FB)(MDG).
• Citation: 554 F.Supp.2d 375
• Parties: KINGVISION PAY-PER-VIEW LTD. as Broadcast Licensee of the May 14, 2005 Wright/Trinidad Program, Plaintiff, v. Julio VILLALOBOS, Individually and as officer, director, shareholder and/or principal of Taqueria La Mixteca Rest. Inc. d/b/a Taqueria La Mixteca Restaurant, and Taqueria La Mixteca Rest. Inc. d/b/a Taqueria La Mixteca Restaurant, Defendants.
• Court: U.S. District Court — Eastern District of New York

554 F.Supp.2d 375

KINGVISION PAY-PER-VIEW LTD. as Broadcast Licensee of the May 14, 2005 Wright/Trinidad Program, Plaintiff, v. Julio VILLALOBOS, Individually and as officer, director, shareholder and/or principal of Taqueria La Mixteca Rest. Inc. d/b/a Taqueria La Mixteca Restaurant, and Taqueria La Mixteca Rest. Inc. d/b/a Taqueria La Mixteca Restaurant, Defendants.

No. 06-CV-2510 (FB)(MDG).

United States District Court, E.D. New York.

May 8, 2008.

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Julie Cohen Lonstein, Esq., Lonstein Law Office, P.C., Ellenville, NY, for the Plaintiff.

MEMORANDUM AND ORDER

FREDERIC BLOCK, Senior District Judge.

On March 11, 2008, Magistrate Judge Go issued a Report and Recommendation ("R & R") recommending plaintiff awarded judgment of $12,555.25 against defendants, jointly and severally, consisting of $1,099 in statutory damages, $10,000 in enhanced damages, $806.25 in attorneys' fees and $650 in costs. A copy of the R & R, which warned that failure to file objections on or before March 28, 2008 "may waive the right to appeal the District court's Order," R & R at 386, was sent by overnight delivery to defendants. See id. No objections to the R & R have been filed.

If clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R & R without de novo review. See Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed plain error, see Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.2000); no such error appears here. Accordingly, the Court adopts the R & R without de novo review and directs the Clerk to enter judgment in accordance with the R & R.

SO ORDERED.

REPORT AND RECOMMENDATION

MARILYN DOLAN GO, United States Magistrate Judge.

Plaintiff Kingvision Pay-Per-View Ltd. ("plaintiff) brought this action under Title 47 of the United States Code alleging that defendant Julio Villalobos ("Villalobos"), individually, and as an officer, director, shareholder and/or principal of Taqueria La Mixteca Rest. Inc. and corporate defendant Taqueria La Mixteca Rest. Inc. ("Taqueria") (collectively referred to as "defendants") violated sections 553 and 605 by intercepting and displaying to their customers, without plaintiffs authorization, the Wright/Trinidad program held on May 14, 2005. Complaint ("Compl.") (ct.doc.1) at ¶¶ 1, 15, 18, 19.

The Honorable Frederic Block granted plaintiffs motion for entry of default judgment following defendants' failure to appear or otherwise defend in this action and referred to me for report and recommendation the relief to be awarded.

PERTINENT FACTS

The facts pertinent to determination of this motion are undisputed and are set forth in the Complaint; the July 20, 2006 affidavit of Donna K. Westrich, Vice-President of plaintiff ("Westrich Aff.") (ct.doc.5-4); the August 8, 2006 affidavit of Julie Cohen Lonstein, Esq., counsel for plaintiff ("Lonstein Aff.") (ct.doc.5-5); and the January 12, 2004 affidavit of investigator Thomas Larkin ("Larkin Aff.") (attached as Exhibit D to the Westrich Aff.) Defendants did not file any opposing papers.

Plaintiff is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business located in Deerfield Beach, Florida. Compl. at ¶ 5. Defendant Taqueria is alleged to be a New York corporation doing business as Taqueria Mixteca Restaurant (the "restaurant") at its principal place of business located at 4118, 5th Avenue, Brooklyn, New York. Id. at ¶¶ 10-11. Defendant Villalobos resides in the State of New York. Id. at ¶ 6.

Plaintiff owns the rights to distribute via closed-circuit television and encrypted satellite signal the Wright/Trinidad program and all undercard bouts and the entire television broadcast scheduled for May 14, 2005 (the "program"). Id. at ¶ 15; Westrich Aff. at 3, Exh. A. The program, which originated via satellite uplink, was re-transmitted to cable systems and satellite companies via satellite signal. Compl. at ¶ 15. Plaintiff entered into sublicense agreements with various entities to exhibit the program to their patrons. Id. at 1116.

Defendants did not enter into any contract with plaintiff and, thus, were not authorized to receive and publish the program. Westrich Aff. at 116. As set forth in his affidavit, investigator Thomas Larkin observed the unauthorized public showing of the program by Taqueria to 20 customers. Larkin Aff. at 2. Entering the establishment at approximately 11:25 p.m. on May 14, 2005, investigator Larkin observed round 3 of the main event between Wright and Trinadad. Id. at 1.

Plaintiff served defendants on June 12, 2006, by personally serving defendant Villalobos, as an individual and an officer of the corporation. Ct. docs. 3, 4. Since the Federal Rules of Civil Procedure permit personal service upon individuals and personal service upon corporations by service upon an officer, I find that service was properly effectuated upon all defendants. See Fed.R.Civ.P. 4(e)(2), 4(h)(1). Under New York law, "service of a single document upon an officer of a corporation constitutes service upon the corporation itself as well as upon the individual officer, provided that there has been simultaneous compliance with statutes governing both corporations and individuals." Georgia v. Sterling Mounting & Finishing, 1 Fed. App. 47, 49 (2d Cir. Jan. 9, 2001) (citing T.E.A. Marine Auto. Corp. v. Scaduto, 581 N.Y.S.2d 370, 181 A.D.2d 776 (2d Dep't 1992)); see also Helfand v. Cohen, 487 N.Y.S.2d 836, 110 A.D.2d 751 (2d Dep't 1985) (service on individual defendant, who was also officer of corporation, constituted effective service on both).

Following defendants' failure to answer the Complaint, plaintiff filed a motion for judgment by default on August 8, 2006. Ct. doc. 5.

DISCUSSION

I.Legal Standards Governing Default

A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). A default also effectively constitutes an admission that damages were proximately caused by-the defaulting party's conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. Greyhound, 973 F.2d at 159. The movant need prove, "only that the compensation sought relate to' the damages that naturally flow from the injuries pleaded." Id.

The court must ensure that there is a reasonable basis for the damages specified in a default judgment. Actual damages or statutory damages may be assessed. In determining damages not susceptible to simple mathematical calculation, Fed.R.Civ.P. 55(b)(2) gives a court the discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir.1991) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989)). The moving party is entitled to all reasonable inferences from the evidence it offers. Au Bon Pain, 653 F.2d at 65 (citing Trans World Airlines, Inc. v. Hughes, 308 F.Supp. 679, 683 (S.D.N.Y. 1969)).

II. Determination of Damages

A. Liability

Both sections 553 and 605 of Title 47 prohibit the unauthorized reception of cable programming. Section 553(a)(1) specifically applies only to cable transmissions and provides that, "[n]o person shall intercept or receive . . . or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." Section 605(a) generally provides that, "[n]o person not being authorized by the sender shall intercept any radio communication . . . or assist in receiving any interstate or foreign communication by radio and use such communication for his own benefit or the benefit of another not entitled thereto." When television programming is transmitted or intercepted over both cable and satellite mediums, both sections 553 and 605 apply. See Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 130 (2nd Cir.1996) ("Sykes II") (noting that section 605 applies to "the interception of cable-borne, as well as over-the-air, pay television" where cable-borne transmissions originate as satellite transmissions); see also Cmty. Television Sys., Inc. v. Caruso, 284 F.3d 430, 435 (2d Cir.2002).

Plaintiffs submissions establish that defendants violated sections 553 and 605 of Title 47 by intercepting and receiving the program without authorization. Compl. at ¶¶ 18-19; Larkin Aff. at 1-2. Plaintiff had the right to distribute the program, which originated via satellite uplink. Compl. at ¶¶ 15-17; Westrich Aff. at ¶ 3, Exh. A. Investigator Larkin observed the program being displayed at the restaurant, a business operated by Taqueria, even though defendant had not contracted with plaintiff to do so. Larkin Aff. at 1-2. Consequently, this Court finds that defendant Taqueria's unlicensed reception and exhibition of the transmissions violated sections 553 and 605 of Title 47.

However, the liability of Villalobos, the individual defendant, involves different and additional considerations from the liability of the corporate defendant Taqueria. A party may be vicariously liable for infringement if he has "the right and ability to supervise" the infringing activities and had "an obvious and direct financial interest in...