J&J Sports Productions, Inc. v. El Ranchero Texano Bar & NightClub Inc. et al
Filing
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MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth above, the Court's vacates the orders directing the entry of default judgment. The complaint in each of these cases is dismissed without prejudice.The Clerk of Court is directed to enter judgment accordingly and to close these cases. Ordered by Judge Eric N. Vitaliano on 9/19/2014. (fwd for judgment) (Fernandez, Erica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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*• $:..' 2 2014 *
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DIST.
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J&J SPORTS PRODUCTION, INC.
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BROOKLYN OFfi•.A:.
BRG.'.;;:._:, i~ OFFICE
Plaintiff,
MEMORANDUM & ORDER
-against13-CV-6173 (ENV) (JO)
EL OJO AQUA CORP. d/b/a LA ESQUINTA
OVEN & GRILL and LEONIDES AYALA,
Defendants.
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J&J SPORTS PRODUCTION, INC.
Plaintiff,
MEMORANDUM & ORDER
-against13-CV-6196 (ENV) (JO)
EL RANCHERO TEXANO BAR &
NIGHTCLUB, INC. d/b/a LA NORTENA BAR,:
and, HIPOLITO TECO,
Defendants.
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VITALIANO, D.J.,
Plaintiff J&J Sports Production, Inc. ("J&J") commenced an action against
defendants El Ojo Aqua Corp d/b/a La Esquinta Oven & Grill, and its principal,
Leonides Ayala, on November 7, 2013. (13-CV-6173, Dkt. 1) The next day,
November 8, 2013, J&J filed a second lawsuit against defendants El Ranchero
Texano Bar & Nightculb, Inc. d/b/a La Nortena Bar, and its principal, Hipolito
Teco. (13-CV-6196, Dkt. 1) In both civil actions, J&J claims that defendants violated
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the Federal Communications Act of 1934 ("FCA"), 47 U.S.C. § 553, 605, by
unlawfully intercepting and broadcasting a closed circuit telecast of a boxing match.
All defendants failed to respond to the summonses served upon them.
On March 13, 2014, the Court issued orders granting plaintiff's motions for
default judgment in each matter, and referred the matters to Magistrate Judge
Orenstein to conduct inquests on damages. (13-CV-6173, Dkt. 15; 13-CV-6196, Dkt.
13) On August 29, Judge Orenstein issued his Report and Recommendation in each
case (the "R&Rs"), and, in each instance, recommended that the Court vacate the
judgments of default and dismiss the complaints. (13-CV-6173, Dkt. 20;13-CV-6196,
Dkt. 18) According to the R&Rs, the inquests on damages revealed that, while J&J
claimed in both complaints that it had the exclusive license to televise the boxing
match, it actually submitted an advertisement as evidence at the inquest
proclaiming that a separate entity, "G&G," was in fact "the OFFICIAL CLOSED
CIRCUIT PROVIDER" for the boxing match. R&Rs at 4-5 (capitalization in
original). What's more, the advertisement went on warn that "[t]here is NO
OTHER LEGAL LICENSOR," and that "[a]ny location that has not been licensed
by this provider will be considered a PIRATE and TREATED ACCORDINGLY."
Id. Judge Orenstein observed that the complaint did not allege, and the evidence at
the inquest did not show, that defendants had failed to obtain a license from G&G.
Consequently, Judge Orenstein concluded that the complaint "fail[ed] to establish
either J&J's standing or the defendants' liability." Id.
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In reviewing an R&R of a magistrate judge, a district judge "may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l). A district judge is required to "make a de
novo determination upon the record, or after additional evidence, of any portion of
the magistrate judge's disposition to which specific written objection has been
made" by any party. Fed. R. Civ. P. 72(b). But, where no timely objection has been
made, the "district court need only satisfy itself that there is no clear error on the
face of the record" to accept the R&R. Urena v. New York, 160 F. Supp. 2d 606, 60910 (S.D.N. Y. 2001).
The R&Rs in these cases ordered plaintiff to serve all parties with a copy of
the applicable R&R by September 2, and required that any objections be received
within 14 days of that date - September 16, 2014. Plaintiff filed proof of service in
both cases on September 2, and neither plaintiff nor defendants have objected to the
R&Rs at all, much less within the time period prescribed by 28 U.S.C. § 636(b)(l).
In accord with the applicable standard of review, although the recommendations
are unusual in the context of an inquest on damages, the Court finds Judge
Orenstein's R&Rs to be characteristically comprehensive, well-reasoned and free of
any clear error on their face. Urena v. New York, 160 F. Supp. 2d 606, 609-10
(S.D.N.Y. 2001). The Court, therefore, adopts them in their entirety as the opinion
of the Court in each of their respective cases.
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Conclusion
For the reasons set forth above, the Court's vacates the orders directing the
entry of default judgment. The complaint in each of these cases is dismissed without
prejudice.
The Clerk of Court is directed to enter judgment accordingly and to close
these cases.
SO ORDERED.
Dated:
Brooklyn, New York
September 19, 2014
s/Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge
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