Directv, LLC v. Borbon et al

Filing 16

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum and Order, the court enters judgment for plaintiff against defendants, jointly and severally, in the total amount of $3,051.38, comprised of statutory damages of $1,000, attorney's fees of $1,166.38, and costs of $885.00. The Clerk of the Court is respectfully directed to enter judgment in favor of plaintiff in the amount of $3,051.38. Ordered by Judge Kiyo A. Matsumoto on 7/29/2015. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
DIRECTV, LLC.,
Plaintiff,
-againstJUAN F. BORBON and NURINALDA VIERA,
Individually, and as officers,
directors, shareholders, and/or
principals of MILLENNIUM CHICKEN III,
CORP., d/b/a MILLENNIUM CHICKEN,

MEMORANDUM AND ORDER

14-CV-3468 (KAM)(LB)

and
MILLENNIUM CHICKEN III, CORP., d/b/a
MILLENNIUM CHICKEN,
Defendants.
-------------------------------------X

MATSUMOTO, United States District Judge:
Plaintiff DirecTV, LLC. (“plaintiff”) brought this
action against defendants Juan F. Borbon and Nurinalda Viera,
individually and as officers, directors, shareholders, and/or
principals of Millennium Chicken III, Corp. d/b/a Millennium
Chicken (“Millennium Chicken” or “the establishment”), and
against defendant Millennium Chicken (collectively,
“defendants”), for alleged violations of 47 U.S.C. § 605
(“Section 605”), 18 U.S.C. § 2511, and for civil conversion.
(Am. Compl. ¶¶ 24-39, ECF No. 5.)

On September 26, 2014,

following a notation of default by the Clerk of the Court dated

1

August 28, 2014 (Entry of Default, ECF No. 14), plaintiff moved
for default judgment on its Section 605 claims, seeking
statutory damages of $10,000 and enhanced damages of up to
$100,000 against each defendant pursuant to 47 U.S.C. § 605(e).
(Pl.’s Mot. for Default J., ECF No. 15.)

Plaintiff

additionally seeks attorney’s fees and costs in the aggregate
of $3,540.75 against each defendant separately.1

Defendants

have not submitted any opposition to plaintiff’s motion,
despite receiving notice and having been provided with an
opportunity to do so. (See Certificate of Service dated Sept.
26, 2014, ECF No. 15-11.)
For the reasons set forth below, plaintiff’s motion
for default judgment is granted and judgment awarded for
plaintiff against defendants, jointly and severally,2 in the

1

The Amended Complaint also contains claims for damages, litigation costs,
and declaratory and injunctive relief pursuant to 18 U.S.C. § 2520(b) for
violation of 18 U.S.C. § 2511, as well as punitive damages, pre- and postjudgment interest, and injunctive relief pursuant to 47 U.S.C. §
605(e)(3)(B)(i). (Am. Compl. at 8.) Plaintiff’s motion for default
judgment, however, seeks only statutory and enhanced damages as well as
costs and attorney’s fees pursuant to 47 U.S.C. § 605(e)(3) for violation of
Section 605(a). (Pl.’s Mot. for Default J.) Consequently, the court
considers plaintiff to have abandoned its claims under 18 U.S.C. § 2520(b)
and for an injunction pursuant to 47 U.S.C. § 605(e)(3)(B)(i). See J & J
Sports Prods., Inc. v. Benson, No. CV 06 1119, 2007 WL 951872, at *1 n.1
(E.D.N.Y. Mar. 27, 2007) (declining to consider plaintiff’s request for
injunctive relief in the complaint when plaintiff’s papers filed in
connection with the motion for default judgment made no request for
injunctive relief).
2

The court limits the award to a single recovery against the individual
defendants and the corporate defendant, jointly and severally. See, e.g.,
Benson, 2007 WL 951872, at *7; Garden City Boxing Club, Inc. v. Morales, No.
05-CV-0064, 2005 WL 2476264, at *10 (E.D.N.Y. Oct. 7, 2005).

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total amount of $3,051.38, inclusive of statutory damages of
$1,000, attorney’s fees of $1,166.38, and costs of $885.
I. Background
Based on the allegations of the amended complaint,
the court accepts the following facts as undisputed based on
defendants’ default.

Plaintiff is a major distributor of

satellite programming doing business in the United States. (Am.
Compl. ¶ 5.)

Plaintiff provides programming licenses for its

proprietary broadcast programming via encrypted satellite
signal to subscribers in exchange for a subscription fee. (Id.)
These licensed subscribers receive specialized equipment that
enables them to unscramble and receive the satellite
programming. (Am. Compl. ¶¶ 5, 17.)

Plaintiff provides

services to residences based on residential rates and to
commercial establishments at higher commercial subscription
rates. (Am. Compl. ¶ 18; Pl.’s Aff. ¶ 6, ECF No. 15-1.)
Defendants Borbon and Viera are “officers, directors,
shareholders, and/or principals of [Millennium Chicken],” a
commercial establishment located at 275 W. Old Country Road,
Hicksville, NY 11803. (Am. Compl. ¶¶ 6-7, 12.)

As such, Borbon

and Viera had “supervisory capacity and control over the
activities” within the restaurant establishment on June 14,
2013. (Am. Compl. ¶ 13.)

Defendants did not possess a valid

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DirecTV commercial account for Millennium Chicken on June 14,
2013. (Am. Compl. ¶ 19; Pl.’s Aff. ¶ 9, 11.)
On June 14, 2013, at approximately 2:49 p.m., an
independent auditor hired by plaintiff to identify businesses
that “unlawfully exhibit DIRECTV residential programming in a
commercial setting” visited Millennium Chicken and observed one
television displaying DirecTV programming. (Pl.’s Aff. ¶¶ 8,
10.)

The auditor estimated the establishment’s fire code

capacity to be between 50-100 persons. (Karlak’s Aff., attached
as Ex. A to Pl.’s Aff.)

Based on the court’s review of Exhibit

B attached to plaintiff’s affidavit, a video of the auditor’s
visit, it appears that there was one individual depicted who
was either an employee or a patron of Millennium Chicken at the
time of the auditor’s visit. (See Ex. B of Pl.’s Aff.)
The complaint alleges in numerous instances that
defendants did not possess a valid commercial account for
Millennium Chicken on June 14, 2013, and thus did not have
permission from DirecTV to “receive, broadcast, use, or display
DirecTV’s Satellite Programming” in Millennium Chicken. (See,
e.g., Am. Compl. ¶ 19-21.)

Defendants allegedly “order[ed]

programming for residential use and subsequently display[ed]
the programming in a commercial establishment for commercial
gain without authorization . . . .” (Am. Compl. ¶ 25.)
Plaintiff affirms that because “residential and commercial

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subscribers use the same satellite receiving equipment,”
commercial establishments “may surreptitiously move satellite
hardware listed on a residential account to their commercial
establishment” without DirecTV’s knowledge or permission.
(Pl.’s Aff. ¶ 7.)

Plaintiff states that “[i]t is also possible

for a commercial establishment to intentionally and
fraudulently establish a residential DirecTV account.” (Pl.’s
Aff. ¶ 7.)
Thus, plaintiff alleges that by displaying DirecTV
programming at their place of business, “[d]efendants’ acts
were unauthorized, willful, and for purposes of direct or
indirect commercial advantage or private financial gain,” in
violation of 47 U.S.C. § 605(a). (Am. Compl. ¶¶ 21, 26.)
Plaintiff filed the instant action on June 3, 2014, after
several months of negotiations with defendants did not
ultimately result in settlement. (See Aff. of Pl.’s Att’y ¶
14.)

Plaintiff served copies of the summons and amended

complaint on July 2, 2014 on Borbon and Viera, and on
Millennium Chicken on June 30, 2014. (Certificate of Default,
ECF No. 13-2.)
II. Discussion
A. Default Judgment Standard
Rule 55(b) of the Federal Rules of Civil
Procedure provides that the court may enter judgment against

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the defaulting party when a plaintiff moves against an adverse
party who has failed to answer or otherwise appear in the
action.

When a default judgment is entered, defendant's

failure to respond constitutes an admission of the well-pleaded
factual allegations in the complaint, except for the claims
relating to damages.

See, e.g., Greyhound Exhibitgroup, Inc.

v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
Moreover, an inquest by affidavit, without an in-person
hearing, may be conducted as long as the court can ensure “a
basis for the damages specified in the default judgment,”
although Fed. R. Civ. P. 55(b)(2) permits the court to hold a
hearing.

Transatlantic Marine Claims Agency, Inc. v. Ace

Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)(quoting Fustok
v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989)).

Thus, the movant need only adequately allege liability

in its complaint to be entitled to relief after an entry of
default, but a default does not establish the extent of damages
proximately caused by a defendant’s conduct. Greyhound, 973
F.2d at 158-59.
B. Liability
Title 47, section 605(a) of the United States Code
provides in pertinent part:
No person not being authorized by the sender shall
intercept any radio communication and divulge or
publish the existence, contents, substance, purport,

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effect, or meaning of such intercepted communication
to any person. No person not being entitled thereto
shall receive or assist in receiving any interstate
or foreign communication by radio and use such
communication (or any information therein contained)
for his own benefit or for the benefit of another not
entitled thereto.
Section 605 applies to radio communications, which includes
television programming transmitted or intercepted by satellite,
as in the instant case. See Int’l Cablevision, Inc. v. Sykes,
75 F.3d 123, 130-133 (2d Cir. 1996).

The statute also provides

for a private right of action for aggrieved parties. 47 U.S.C.
§ 605(e)(3)(A).

A plaintiff’s undisputed allegation that

defendants have utilized a residential account to display
programming in a business is sufficient to establish liability
under Section 605. See, e.g., Kingvision Pay-Per-View, Ltd. v.
Mendez, No. 03CV2170, 2006 WL 3833014, at *5 (E.D.N.Y. Dec. 28,
2006).

As the undisputed allegations in plaintiff’s filings

demonstrate that defendants intercepted, received, and
broadcast DirecTV satellite programming without authorization
at Millennium Chicken (Am. Compl. ¶ 25), their conduct violates
47 U.S.C. § 605(a). See, e.g., J & J Sports Prods., Inc. v.
Mangos Steakhouse & Bakery, Inc., No. 13 CV 5068, 2014 WL
2879868, at *4 (E.D.N.Y. May 7, 2014).
B. Individual Defendants’ Liability

To establish vicarious liability for the individual

defendants Borbon and Viera, plaintiff is required to

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demonstrate that they “authorized the violations set forth in
the complaint.” Id.

Further, “[plaintiff] must show that . . .

[Borbon and Viera] had a right and ability to supervise the
infringing activities and had an obvious and direct financial
interest in the exploitation of [the] copyrighted materials.”
Id. (quoting Morales, 2005 WL 2476264, at *10).
Here, plaintiff’s undisputed allegations state that
the individual defendants, Borbon and Viera, are “officers,
directors, shareholders, and/or principals” of Millennium
Chicken, and had “supervisory capacity and control over the
activities,” “internal operating procedures” and “employment
practices” of Millennium Chicken. (Am. Compl. ¶¶ 7, 13, 15.)
Plaintiff also alleges that Borbon and Viera “received a
financial benefit from the operations of” Millennium Chicken.
(Am. Compl. ¶ 14.)

The court notes that a minority of courts

in this district have not found vicarious liability in similar
circumstances, because “the plaintiff had not demonstrated
sufficient control by the owner or financial interest in the
violation.” Mangos, 2014 WL 2879868, at *5 n.9 (rejecting this
minority view due to the “difficulty that plaintiffs face in
producing evidence in default cases”).

In light of the

difficulty that plaintiffs face in producing evidence in
default cases and in keeping with the majority of courts in
this district, the court accepts plaintiff’s allegations as

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true and finds the individual defendants vicariously liable.
See id.

Accordingly, the court finds defendants Borbon and

Viera jointly and severally liable for damages awarded in this
action.
C. Damages
Unlike allegations pertaining to liability, those
pertaining to damages are not deemed admitted in the context of
a motion for default judgment. Benson, 2007 WL 951872, at *4
(citing Greyhound, 973 F.2d at 158).

Therefore, plaintiff must

establish its entitlement to the recovery of damages. See id.
1. Statutory Damages
Section 605 provides that an aggrieved party may
elect to recover either actual damages or statutory damages.
47 U.S.C. § 605(e)(3)(C)(i).

Plaintiff here has requested

maximum statutory damages of $10,000 pursuant to section
605(e)(3)(C)(i)(II). (Pl.’s Mot. for Default J.)

Upon a

finding that defendants are liable, an aggrieved party is
entitled to an award of statutory damages for each violation of
section 605(a) in an amount between $1,000 and $10,000, as the
court considers just. 47 U.S.C. § 605(e)(3)(C)(i)(II); see
DIRECTV, Inc. v. Rodriguez, No. 03CV4590, 2007 WL 1834676, at
*3 (E.D.N.Y. June 26, 2007).

While there is no statutory

definition of what constitutes a single “violation” under
Section 605, courts have considered the airing of programming

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on one night to constitute one violation. See, e.g., Garden
City Boxing Club, Inc. v. Rosado, No. 05 CV 1037, 2005 WL
3018704, at *3 (E.D.N.Y. Oct. 6, 2005) (considering the airing
of a boxing event to be one violation).
In setting the amount of statutory damages, some
courts employ a flat damage assessment per violation. See,
e.g., Joe Hand Promotions, Inc. v. Hernandez, No. 03 Civ. 6132,
2004 WL 1488110 (S.D.N.Y. June 30, 2004) (awarding $1,000
statutory damages for a one-time violation).

When presented

with sufficient evidence indicating the number of patrons
present at the time of the unauthorized broadcast, other courts
have employed a formula that multiplies the number of patrons
by a court-determined damage award (typically of $50 per
patron), see, e.g., Entm’t by J & J, Inc. v. Mama Zee Rest. &
Catering Servs., Inc., No. CV-01-3945, 2002 WL 2022522, at *3
(E.D.N.Y. May 21, 2002) (awarding $50 per patron and collecting
cases), or by the residential fee that would have been charged
for the programming, see, e.g., J & J Sports Prods., Inc. v.
Arhin, No. 07 CV 2875, 2009 WL 1044500, at *6 (E.D.N.Y. April
17, 2009) (calculating statutory damages by multiplying the
number of customers present by the residential rate of
programming for the pay-per-view event).
Plaintiff here has not submitted an estimate of the
value, or a range of values, of the services defendants have

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misappropriated.

Plaintiff also has not submitted evidence

alleging the number of patrons physically present in Millennium
Chicken at the time of the audit, but rather alleges an
approximate seating capacity of 50 to 100 persons.
Aff., attached as Ex. A to Pl.’s Aff.)

(Karlak’s

Plaintiff has not

detailed its pricing structure for a business such as
Millennium Chicken, nor compared it to the residential pricing
structure that it alleges defendants utilized in its attempt to
evade the “more expensive” subscription fees associated with
business pricing. (Pl.’s Aff. ¶ 6.)

This information was

almost certainly available to the plaintiff as a major
distributor of satellite programming, notwithstanding other
difficulties in ascertaining information due to defendants’
default.
Given the paucity of reliable information provided by
the plaintiff, the court declines to perform a per-patron
calculation of the statutory damages to which plaintiff is
entitled.

The court finds that the statutory minimum of $1,000

is an appropriate award against defendants, jointly and
severally, for their single violation of section 605(a). See
Kingvision Pay-Per-View Ltd. v. Rodriguez, No. 02 CV 7972, 2003
WL 548891, at *2 (S.D.N.Y. Feb. 25, 2003) (awarding statutory
minimum damages when plaintiff failed to submit evidence of
costs and fees).

Based on the auditor’s video recording, which

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shows no more than one individual who may be a patron in the
restaurant, the court also notes that had it applied the perpatron calculation formula, the damage award in this case would
likely fall below the statutory minimum of $1,000. (See Ex. B
of Pl.’s Aff.); see also Kingvision Pay-Per-View Ltd. v. Autar,
426 F. Supp. 2d 59, 63-64 (E.D.N.Y. 2006) (awarding statutory
minimum of $1,000 when per-patron calculation would lead to
damages under the minimum).

Thus, the court finds a flat award

of $1,000 in statutory damages is appropriate here. See
Cablevision Sys. Corp. v. Maxie’s North Shore Deli Corp., No.
88 CV 2834, 1991 WL 58350, at *2 (E.D.N.Y. Mar. 20, 1991)
(awarding flat damages based on the court’s view of the
equities and not the estimated number of patrons).
2. Enhanced Damages

Plaintiff further seeks enhanced damages against

defendants for their willful conduct.

When plaintiff proves

that the violation was committed willfully and for the
“purposes of direct or indirect” financial gain or advantage,
the court may increase the damage award within its discretion
up to $100,000 for each violation. § 605(e)(3)(C)(ii).

Courts

will consider the following factors in determining whether to
award enhanced damages, which are not evident here: “repeated
violations over an extended period of time; substantial
unlawful monetary gains; significant actual damages to

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plaintiff; defendant's advertising for the intended broadcast
of the event; defendant's charging a cover charge or charging
premiums for food and drinks.” Benson, 2007 WL 951872, at *5
(citing Kingvision Pay-Per-View, Ltd. v. Recio, No. 02 Civ.
6583, 2003 WL 21383826, at *5 (S.D.N.Y. June 11, 2003)).
Enhanced damages are awarded when statutory damages have been
found not to provide sufficient deterrence to defendants in
response to their willful disregard of the law. See id. at *2;
see also Cablevision Systems New York City Corp. v. Diaz, No.
01CIV.4340, 2002 WL 31045855, at *4 (S.D.N.Y. July 10, 2002).
In determining the amount of enhanced damages to
award, courts in this circuit take varying approaches,
consistent with the discretion that the statute permits. See,
e.g., J & J Sports Prods., Inc. v. Onyx Dreams, Inc., No. 12 CV
5355, 2013 WL 6192546, at *6–7 (E.D.N.Y. Nov. 26, 2013)
(awarding enhanced damages of two times the statutory damages
award); J & J Sports Prods., Inc. v. Martinez, No. 07 CV 3455,
2009 WL 1913239, at *2 (E.D.N.Y. June 30, 2009) (awarding zero
enhanced damages where plaintiff failed to show repeated
violations over time, substantial unlawful gains, significant
actual damages, and defendant’s advertising for broadcast or
charging a premium or cover).
Here, plaintiff alleges, without any evidentiary
support, that the defendants’ willful conduct was for financial

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gain and harmed plaintiffs.

Plaintiff also does not allege nor

provide any evidentiary support for the enhanced damages
factors.

The programming displayed on defendants’ television

in this action was regular subscription programming, and the
complaint alleges the defendants paid a residential
subscription for the programming. (Am. Compl. ¶ 25.)

Where, as

here, the defendants did not intercept pay-per-view
programming, have not been shown to be repeat offenders, nor
are shown to have profited greatly from their violation while
causing significant actual damages to plaintiff, the factors
weigh against enhancement. See Benson, 2007 WL 951872, at *5.
Although plaintiff’s allegations that defendants’ conduct was
willful and for financial gain are uncontested, (Am. Compl. ¶
20,) they are coupled with general and unsupported allegations
that DirecTV has suffered financially and lost goodwill as a
result of such conduct. (Am. Compl. ¶ 28.)
The court thus finds that plaintiff is not entitled to any
enhanced damages, as the statutory minimum damage award
discussed above sufficiently addresses the defendants’
violation as alleged in the complaint and provides sufficient
deterrence. See Martinez, 2009 WL 1913239, at *2.
D. Plaintiff’s Attorney’s Fees and Costs
Section 605(e)(3)(B)(iii) entitles a court to award
litigation costs and reasonable attorney’s fees to a prevailing

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party.

As required by the Second Circuit, plaintiff here has

submitted contemporaneous time records that illustrate “for
each attorney, the date, the hours expended and the nature of
the work done.” N.Y. State Ass'n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1154 (2d Cir.1983).

Plaintiff’s

attorney’s affidavit contains a table listing attorneys’ hours
from contemporaneous time records, which adequately satisfies
this requirement. J & J Sports Prods., Inc. v. Alvarez, No. 07
CIV. 8852, 2009 WL 3096074, at *6 (S.D.N.Y. Sept. 25, 2009)
(citing Cruz v. Local Union No. 3 of Int'l Bhd. of Elec.
Workers, 34 F.3d 1148, 1160 (2d Cir. 1994) (accepting a “typed
listing of [attorneys'] hours from their computer records”).
Plaintiff seeks $2,655.75 in attorney’s fees, based on the
following rates and expenditures: $350 per hour for 0.55 hours
of partners’ time; $250 per hour for 8.20 hours of associates’
time; and $95 per hour for 4.35 hours of paralegals’ time.
(Aff. of Pl.’s Att’y ¶ 14.)
1. Reasonableness of Hourly Rates
Hourly rates charged should be “in line with those
[rates] prevailing in the community for similar services of
lawyers of reasonably comparable skill, experience, and
reputation.” Cruz, 34 F.3d at 1159 (quoting Blum v. Stetson,
465 U.S. 886, 896 n.11 (1984)).

The “prevailing community” in

this context is usually “the district in which the court sits.”

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Id. (quoting Polk v. New York State Dep't of Correctional
Servs., 722 F.2d 23, 25 (2d Cir. 1983)).

The “most useful

starting point” in determining reasonable attorney’s fees is
the number of hours “reasonably expended on the litigation
multiplied by the reasonable hourly rate.” J & J Sports Prods.,
Inc. v. Welch, No. 10-CV-0159, 2010 WL 4683744, at *5 (E.D.N.Y.
Nov. 10, 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)).

The court has “considerable discretion” to set a

reasonable hourly rate. Id. (citing Arbor Hill Concerned
Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182,
190 (2d Cir. 2007)).

The district court should be guided by

what a “reasonable, paying client, who wishes to pay the least
amount necessary to litigate the case effectively” would be
willing to pay. Arbor Hill, 522 F.3d at 184.

Based on the prevailing hourly rates in this

district, this court finds that the requested hourly rates for
both attorneys and paralegals must be reduced.

In cases of

this nature, hourly rates between $150-$200 for attorneys and
$75 for paralegals are most appropriate and in line with
similar cases in this district. See, e.g., Joe Hand Promotions,
Inc. v. Blais, No. 11-CV-1214, 2013 WL 5447391, at *7 (E.D.N.Y.
Sept. 30, 2013) (finding $200 a reasonable hourly rate for
attorney’s fees); Circuito Cerrado Inc. v. La Camisa Negra
Rest. & Bar Corp., No. 09-CV-5181, 2011 WL 1131113, at *6-7

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(E.D.N.Y. Mar. 7, 2011), report and recommendation adopted,
2011 WL 1131130 (E.D.N.Y. Mar. 28, 2011) (reducing associate’s
rate to $150 per hour from $200 per hour, but finding $75 per
hour appropriate for paralegals’ rates); J&J Sports Prods.,
Inc. v. Castrillon, No. 07-CV-02946, 2009 WL 1033364, at *4
(E.D.N.Y. Apr. 16, 2009) (finding that $200 per hour was an
appropriate rate for an attorney, and $75 per hour appropriate
for a paralegal).
Plaintiff here lists two associate attorneys with
varying levels of experience in its affidavit, one with six
years of federal civil practice experience and the other with
two years, but does not specify which attorney was responsible
for which tasks. (Aff. of Pl.’s Att’y ¶ 13-14.)

The court

notes that the attorney of record in each filing is the junior
attorney with two years of experience.

The court also notes

the “boilerplate” nature of submissions in cases under Section
605. See Kingvision Pay–Per–View, Ltd., v. Soluna Bar & Lounge,
Inc., 06–CV–5066, 2008 WL 2673340, at *6–7 (E.D.N.Y. May 27,
2008) (counsel's charged hourly rate of $250 deemed excessive
in Section 605 case where papers were virtually identical to
those submitted by counsel in other infringement actions and
lowering the rate to $200).

In light of the foregoing

considerations, the court finds that the prevailing rates in
the district justify reducing counsel’s hourly rates for this

17

case to $200 for partner’s time, $150 for associates’ time, and
$75 for paralegals’ and legal assistants’ time. See, e.g.,
Circuito Cerrado Inc., 2011 WL 1131113, at *6-7; Castrillon,
2009 WL 1033364, at *4.
Plaintiff also seeks litigation costs for filing fees
in the amount of $400 and service of process fees in the amount
of $485. (Aff. of Pl.’s Att’y ¶ 13.)

The court finds these

rates reasonable based on the documentary evidence presented,
and grants plaintiff reimbursement for these expenses in the
total amount of $885.
2. Reasonableness of Time Spent
An award of attorney’s fees must not only be based on
reasonable rates, but the time spent on the litigation must
also be necessary and reasonable. Morin v. Nu-Way Plastering,
Inc., No. CV 03-405, 2005 WL 3470371, at *3 (E.D.N.Y. Dec. 19,
2005).

The “boilerplate” nature of default judgments in cases

involving Section 605 has led a court in this district to find
that an expenditure of 9.7 hours of attorney’s time is
excessive. See Joe Hand Promotions, Inc. v. Terranova, No. 12CV-3830, 2014 WL 1028943, at *9 (E.D.N.Y. Mar. 14, 2014)
(reducing attorney’s fees by 66% based on excessiveness of both
hours and rates billed).

The time spent on this case, which

includes what appears to be failed settlement negotiations
before the commencement of this action, total 12.55 hours over

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a period of more than one year. (Aff. of Pl.’s Att’y ¶ 14.)
Despite the additional two hours that counsel for plaintiff
expended on initial settlement negotiations, the court finds
that the cumulative 12.55 hours is unreasonably high for the
instant litigation.

(Aff. of Pl.’s Att’y ¶ 14.)

In order to arrive at a reasonable attorney’s fee
award, the court reduces the total time expended on this
litigation by 30% because the time spent on the boilerplate
submissions is excessive. See Terranova, 2014 WL 1028943, at
*9.

The court therefore grants plaintiff recovery of

reasonable attorney’s fees in the total amount of $1,166.38,
based on the following calculations: $200 per hour for 0.385
hours of partners’ time, $150 per hour for 5.74 hours of
associates’ time, and $75 per hour for 3.045 hours of
paralegals’ and legal assistants’ time.

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Conclusion
For the foregoing reasons, the court enters judgment
for plaintiff against defendants, jointly and severally, in the
total amount of $3,051.38, comprised of statutory damages of
$1,000, attorney's fees of $1,166.38, and costs of $885.00.
The Clerk of the Court is respectfully directed to enter
judgment in favor of plaintiff in the amount of $3,051.38.

SO ORDERED.

Dated:

July 29, 2015
Brooklyn, New York

__________/s/________________
Kiyo A. Matsumoto
United States District Judge

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