J&J Sports Productions, Inc. v. Bernal

Filing 7

MEMORANDUM AND ORDER: Granting plaintiff's motion 5 for a default judgment and REFERRING plaintiff's motion to MJ GO to hold an ninquest to determine damages and prepare a report and recommendation as to such damages. There will be no formal orders mailed to counsel. Ordered by Senior Judge Frederic Block on 12/15/2009. Motions referred to Marilyn D. Go. (Innelli, Michael)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------x J&J SPORTS PRODUCTIONS, INC., Plaintiff, -againstJOSE A. BERNAL, Individually, and as officer, director, shareholder and/or principal of EL SONADOR CAFÉ RESTAURANT INC., d/b/a EL SONADOR CAFÉ RESTAURANT, a/k/a 30-30 CAFÉ RESTAURANT, and EL SONADOR CAFÉ RESTAURANT INC., d/b/a EL SONADOR CAFÉ RESTAURANT, a/k/a 30-30 CAFÉ RESTAURANT, Defendants. ------------------------------------------------------x Appearances: For the Plaintiff: JULIE COHEN LONSTEIN, ESQ. Lonstein Law Office, P.C. 1 Terrace Hill, Box 351 Ellenville, NY 12428 BLOCK, Senior District Judge: On August 27, 2009, plaintiff J&J Sports Productions, Inc., filed a complaint seeking damages for the allegedly unauthorized interception and exhibition of several boxing matches ("the Event"), to which plaintiff held distribution rights, in violation of 47 U.S.C. § 605. As defendants El Sonador Café Restaurant Inc., and Jose A. Bernal ("Defendants"), after being duly served, have failed to respond to the complaint or otherwise defend against the action, see Docket Entry #6 (Clerk's Entry of Default), plaintiff now moves for entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b). A defendant's default is an admission of all well-pleaded allegations in the complaint, MEMORANDUM AND ORDER Case No. 09-CV-3745 (FB) (MDG)

except those relating to damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) ("While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages."). A district court must nevertheless determine whether the allegations state a claim upon which relief may be granted, see Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) ("[A district court] need not agree that the alleged facts constitute a valid cause of action."); if they do, damages "must be established by the plaintiff in an evidentiary proceeding in which the defendant has the opportunity to contest the amount." Greyhound Exhibitgroup, 973 F.2d at 158. By alleging that Defendants "used an illegal satellite receiver, intercepted Plaintiff's signal and/or used a device to intercept Plaintiff's broadcast, whcih originated via satellite uplink and then re-transmitted via satellite or microwave signal to various cable and satellite systems," Compl. at ¶ 19, plaintiff has stated a claim under 47 U.S.C. § 605(a). See International Cablevision, Inc. v. Sykes, 75 F.3d 123, 131-33 (2d Cir. 1996) ("Sykes II") (holding that § 605 applies to the interception of cable communications originating as a satellite transmissions), cert. denied, 519 U.S. 929 (1996). Plaintiff has not, however, stated a claim under 47 U.S.C. § 605(e)(4), since the complaint contains no allegations that Defendants were anything other than interceptors of the Event's communication or end users of an illegal device. See Garden City Boxing Club, Inc. v. Morales, 05-CV-0064, 2005 WL 2476264, at *5 (E.D.N.Y. Oct. 5, 2005) (citing cases holding that § 605(e)(4) only applies to manufacturers and distributors). Plaintiff's motion for entry of default judgment is granted. The matter is referred to the assigned magistrate judge for a report and recommendation on the relief to be awarded under 47 U.S.C. § 605(e).

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SO ORDERED. ___________________________________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York December 15, 2009

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