Stridiron v. Cmty. Broadcasters, LLC

• Decision Date: 21 June 2019
• Docket Number: 5:19-CV-108 (MAD/ATB)
• Parties: ROBERT STRIDIRON, Plaintiff, v. COMMUNITY BROADCASTERS, LLC, Defendant.
• Court: U.S. District Court — Northern District of New York

ROBERT STRIDIRON, Plaintiff, v. COMMUNITY BROADCASTERS, LLC, Defendant.

5:19-CV-108 (MAD/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 21, 2019

APPEARANCES:

LIEBOWITZ LAW FIRM, PLLC

11 Sunrise Plaza, Suite 310

Valley Stream, New York 11580

Attorneys for Plaintiff

OF COUNSEL:

RICHARD P. LIEBOWITZ, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Robert Stridiron commenced this action on January 27, 2019, alleging Defendant Community Broadcasters, LLC, infringed on Plaintiff's copyright and seeking actual or statutory damages, as well as costs, expenses, and attorney's fees. See Dkt. No. 1. After Defendant failed to respond to proper service, Plaintiff filed a Request for Entry of Default. See Dkt. No. 8. Upon the Clerk's Entry of Default as to Defendant, Plaintiff filed a Motion for Default Judgment, which is now before the Court. See Dkt. No. 11.

II. BACKGROUND

Plaintiff is a professional photographer who licenses his photographs to media outlets for a fee. Dkt. No. 1 at ¶ 5. Plaintiff's usual place of business is 78-28 88^th Road, Woodhaven, New York 11421. Id. In his professional capacity, Plaintiff photographed a crime scene in Brooklyn, New York (the "Photograph"). Id. at ¶ 7; Dkt. No. 1-2 at 2. Plaintiff is the author and sole owner of the Photograph and initially published it on June 2, 2017. Id. at ¶ 8; Dkt. No. 11-1 at ¶ 6. Plaintiff then registered the Photograph with the United States Copyright Office, where the Photograph was given registration number VA 2-064-636. Id. at ¶ 9. The effective date of copyright registration was August 28, 2017. Dkt. No. 11-1 at ¶ 6.

Defendant is a broadcasting company that operates radio stations in New York, South Carolina, and Florida, and is a limited liability company organized under New York State law. See Dkt. No. 1 at ¶ 6; Fla. Dep't of State, Div. of Corps., Application by Foreign Limited Liability Company for Authorization to Transact Business in Florida, http://search.sunbiz.org/Inquiry/CorporationSearch/ConvertTiffToPDF?storagePath=COR%5C2016%5C0706%5C00160026.Tif&documentNumber=M16000005335 (last visited June 4, 2019); Community Broadcasters, LLC, "About," http://www.commbroadcasters.com/about/ (last visited June 4, 2019). In connection with Defendant's Florida Market, Defendant owns and operates a website at the URL www.CBEmeraldCoast.com. Dkt. No. 1 at ¶ 6.

Plaintiff alleges that on Defendant's above-referenced website, Defendant ran an article titled, Gunman shoots NYPD officer in arm, bulletproof vest before killing self, which featured the Photograph without a license, permission, or consent from Plaintiff. Dkt. No. 1 at ¶¶ 10, 11; see Dkt. No. 1-3. On January 2019, Plaintiff commenced this lawsuit alleging Defendant infringed Plaintiff's copyright and exclusive rights to the Photograph under Sections 106 and 501 of the Copyright Act. See Dkt. No. 1 at ¶ 14. Service upon Defendant was completed by serving the New York State Department of State on January 29, 2019. See Dkt. Nos. 1, 2, 6. To date, Defendant has not filed an answer or any other response to the Complaint.

On April 4, 2019, Plaintiff requested an entry of default against Defendant. Dkt. No. 8. The Clerk of the Court entered default on April 5, 2019. Dkt. No. 9. On May 10, 2019, Plaintiff filed the present motion seeking a default judgment against Defendant pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Dkt. No. 11. Defendant has not responded to Plaintiff's motion.

III. DISCUSSION

A. Default Judgment

Once the Clerk enters a party's default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure (FRCP), the court may enter a judgment against the defaulting party. Fed. R. Civ. P. 55(b)(2). "That rule, in tandem with the Northern District of New York Local Rule 55.2, sets forth certain procedural prerequisites that must be met before a default judgment may be entered." Pert 35, Inc. v. Amari Aviation Ltd., No. 09-CV-0448, 2010 WL 1257949, *3 (N.D.N.Y. Mar. 5, 2010) (citation omitted). The moving party must "1) show that the defendant was properly served with a summons and complaint; 2) obtain the entry to default; and 3) provide an affidavit setting forth the salient facts including, if the defendant is a person, showing that he or she is not an infant or incompetent, or a member of the United States Military Service." Id. (citing Fed. R. Civ. P. 55(b); N.Y.N.D. L.R. 55.1, 55.2) (other citations omitted).

The Second Circuit has "generally disfavored" granting default judgment because it is an extreme remedy, and while it may be efficient, the court must weigh its interest in expediency against the need to afford all litigants the opportunity to be heard. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993) (citing Merker v. Rice, 649 F.2d 171, 174 (2d Cir. 1981); Gill v. Stolow, 240 F.2d 669, 670 (2d Cir. 1957)). Although the Second Circuit has a clear preference for deciding cases on the merits, district courts are given discretion to assess the individualcircumstances of each case and grant default judgment where appropriate. Enron Oil Corp., 10 F.3d at 95-96 (citing Action S.A. v. Marc Rich & Co., 951 F.2d 504, 507 (2d Cir. 1991), cert. denied, 503 U.S. 1006 (1992); Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983); Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981)). However, when a motion for default judgment is unopposed, the movant only needs to satisfy the "modest burden of demonstrating entitlement to the relief requested." Rusyniak v. Gensini, No. 5:07-CV-0279, 2009 WL 3672105, *1 n.1 (N.D.N.Y. Oct. 30, 2009) (quoting Cossey v. David, No. 04-CV-1501, 2007 WL 3171819, *7 (N.D.N.Y. Oct. 29, 2007)).

In this case, Plaintiff has produced evidence demonstrating Defendant was properly served in accordance with the Federal Rules of Civil Procedure and New York State laws. See Dkt. No. 6; Dkt. No. 11-1 at ¶¶ 8, 9; Fed. R. Civ. P. 4; N.Y. LTD. LIAB. CO. LAW § 301 (McKinney 2015). Plaintiff obtained the entry to default. Dkt. No. 9. Plaintiff's attorney filed an affidavit setting forth the salient facts of the case, including that Defendant is a limited liability company and therefore not an infant, incompetent person, or a member of the United States Military. Dkt. No. 11-1 at ¶¶ 26-28. Despite all this, the Court nevertheless finds that Plaintiff is not entitled to default judgment.

First, while Plaintiff served the summons and complaint on Defendant, nothing in the record demonstrates that he served the Filing Order as ordered by the Court. See Dkt. No. 3. The affidavit of service does not list the Filing Order as being served along with the summons, complaint, and civil cover sheet. See Dkt. No. 6. While this failure by itself might not justify the Court denying Plaintiff's motion, Plaintiff failed to comply with yet another rule. Section 2(G) of the Individual Rules and Practices of the Hon. Mae A. D'Agostino provides as follows: "In addition to the requirements set forth in the Federal and Local Rules of Civil Procedure, a partymoving for default judgment must include a certificate of service demonstrating that it has served the motion on the party against whom default is sought." No such certificate of service has been filed. Plaintiff was provided notice of these Individual Rules both in the Filing Order and through a text notice issued by the Clerk's Office. See Dkt. Nos. 3 & 5.

In light of Plaintiff's failure to comply with the Court's Individual Rules, the motion for default judgment is denied. See Lent v. CCNH, Inc., No. 5:13-cv-942, 2015 WL 3463433, *2 (N.D.N.Y. June 1, 2015).

B. Statutory Fees for Copyright Infringement and Attorney's Fees

While Plaintiff's motion for default judgment is being denied at this time, the Court will still address several outstanding issues. First, the Court notes that Plaintiff seeks the statutory maximum for the infringement of a single picture, by a media outlet in upstate New York. In similar cases, courts have found the statutory minimum of $750 to be a more appropriate award.

For example, in Downs, the court entered a default judgment in the plaintiff's favor when a defendant published plaintiff's copyrighted photos on its website without the plaintiff's authorization. Downs v. Yeshiva World News, LLC, No. 18-CV-0250, 2019 WL 1261406, *2 (E.D.N.Y. Feb. 1, 2019). The plaintiff sought $30,000 per infringement, but did not provide any information to support seeking the maximum award available for a non-willful infringement. Id. at *2-* 3. When the court found the record included "no evidence to distinguish this case from a case in which the minimum statutory award would be justified solely by virtue of the fact of infringement," it granted the plaintiff the minimum statutory damages of $750 per infringed work. Id. at *3.

Similarly, in Mango, the defendant published the plaintiff's copyrighted photo in an article online without the plaintiff's permission and the court entered default upon the defendant's failureto defend. Mango v. Pacifica Found., Inc., No. 18-CV-6318, 2019 WL 569073, *1 (E.D.N.Y. Feb. 11, 2019). There, the court declined to award the plaintiff the maximum statutory damages solely on the basis of the defendant's default. Id. (quoting Korzeniewski v. Sapa Pho Vietnamese Rest. Inc., No. 17-CV-5721, 2019 WL 312149, *8 (E.D.N.Y. Jan. 3, 2016)). Instead, the court found an award of $5,000 was "'sufficient to compensate the plaintiff and to punish the defendant for its willful infringement' when the plaintiff 'offered no evidence regarding actual damages or the market value of the copyrighted photographs.'" Id. at *2 (quoting Philpot v. Music Times LLC, No. 16-CV-1277, 2017 WL 1906902, *1 (S.D.N.Y. May 9, 2017)).

Here, assuming that Plaintiff refiles his motion for default judgment and judgment is granted in his favor, it is unlikely the Court will be inclined to grant an award anywhere near the statutory maximum amount. Plaintiff provided no...