Joe Hand Promotions, Inc. v. Miller et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS; granting in part and denying in part 13 Motion for Default Judgment; adopting in part Report and Recommendations as to 14 Report and Recommendations. Upon a careful review of the record and Judge Pollak 's thorough, well-reasoned Report and Recommendation, the court affirms and adopts the Report and Recommendation as to Goldmaker Inc., d/b/a Estelle Lounge. The court denies without prejudice plaintiff's motion for default judgment as to Mr . Miller. The court orders Mr. Miller and the plaintiff to appear for a telephone conference at 11:00 a.m. on Tuesday, April 6, 2021. The parties shall dial into the conference by calling 1-888-684-8852 and entering the following access code : 1312089. Plaintiff is ordered to serve a copy of this Order on both defendants and file a declaration of service no later than April 1, 2021. The Clerk of Court shall enter judgment against Goldmaker Inc., d/b/a Estelle Lounge in the amount of $7,375, and serve the judgment at 1824 Avenue U, Brooklyn, NY, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/31/2021. (Urquiola, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------- X
JOE HAND PROMOTIONS, INC.,
Plaintiff,

ORDER
20-CV-132
(KAM)(CLP)

-againstPETER MILLER, et al.,
Defendant.
-------------------------------------X
MATSUMOTO, United States District Judge:
On January 7, 2020, Joe Hand Promotions, Inc.
(“Plaintiff”) commenced this action against Peter Miller,
individually, and as officer, director, shareholder and/or
principal of Goldmaker Inc., d/b/a Estelle Lounge (“Goldmaker”),
and Goldmaker (collectively, “defendants”) alleging violations
of the Federal Communications Act of 1934, 47 U.S.C. §§ 553,
605, and copyright infringement in violation of the Copyright
Act, 17 U.S.C. §101, et seq.

(ECF No. 1, Complaint.)

On June 16, 2020, plaintiff moved for default judgment
against all defendants.
Judgment.)

(ECF No. 13, Motion for Default

On February 16, 2021, the court referred this matter

to Chief Magistrate Judge Cheryl L. Pollak for a Report and
Recommendation.

(See Order Referring Mot., 2/16/2021.)

On

February 26, 2021, Judge Pollak issued a Report and
Recommendation recommending that the court grant plaintiff’s

motion for default judgment and award damages against
defendants.
at 22.)

(See ECF No. 14, Report and Recommendation (“R&R”)

The Report and Recommendation notified the parties of

the right to file written objections within fourteen (14) days
of receipt of the Report and Recommendation.

(R&R at 22.)

On

March 15, 2021, a copy of Judge Pollak’s R&R was mailed to
defendants.

By letter dated March 27, 2021, and filed on March

29, 2021, Peter Miller objected to the R&R’s recommendation that
judgment be entered.
Recommendations.)

(ECF No. 15, Objection to Report and

Peter Miller, the pro se defendant may

represent only himself and not a corporation.

Traguth v. Zuck,

710 F.2d 90, 95 (2d Cir.1983); see also Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Consequently, the
court construes the objection to apply only to the recommended
judgment against Defendant Miller and not Goldmaker.
I.

Goldmaker
No party has objected to the portions of the R&R

concerning Goldmaker, and the time for doing so has passed.
Additionally, this court finds that Goldmaker was properly
served with the summons and complaint.
Summons Returned Executed.)

(ECF No. 8, Goldmaker

A corporation may be served with

process either by “following state law” or by “delivering a copy
of the summons and of the complaint to an officer, a managing or
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general agent, or any other agent authorized by appointment or
by law to receive service of process.”

Fed. R. Civ. P. 4(h).

New York law authorizes two methods of serving process on a
corporation: either by serving the New York Secretary of State,
who then forwards a copy to the address it has on file for the
corporation, N.Y. Bus. Corp. Law § 306(b)(1), or by personally
delivering the summons to an “officer, director, managing or
general agent, or cashier or assistant cashier or to any other
agent authorized by appointment or by law to receive service,”
N.Y. C.P.L.R. § 311(a)(1).

Here, Goldmaker was properly served

with process through the New York Secretary of State (ECF No. 8,
Goldmaker Summons Returned Executed), and all subsequent motions
and orders were mailed to the address of the corporation, 1824
Avenue U in Brooklyn.

(See ECF No. 10, Certificate of Service;

ECF No. 13, Motion for Default Judgment.)

Goldmaker has not

appeared, opposed any of plaintiff’s motions, or defended
against the claims in this action.
When deciding whether to adopt a report and
recommendation, a district court “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)(1).

Where no objections

to the Report and Recommendation have been filed, the district
court “need only satisfy itself that that there is no clear
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error on the face of the record.”

Urena v. New York, 160 F.

Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith,
618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).
The Court has reviewed the record concerning the
portions of the R&R to which no objection was made and, finding
no clear error, adopts those portions of the R&R recommending
that plaintiff’s motion for default judgment be granted against
Goldmaker.

Plaintiff’s motion for default judgment against

Goldmaker is granted.
II.

Peter Miller
Peter Miller’s unsworn letter contains an address at

1824 Avenue U, Brooklyn, NY 11229, and requests that all
documents to Mr. Miller be sent to that address.
Objection to Report and Recommendations.)

(ECF No. 15,

Mr. Miller objects to

the recommendation to grant plaintiff’s motion for default
judgment, stating that “[the] complaint was not properly served”
and that he has “never lived at 7401 Shore Blvd.”

(Id.)

Plaintiff’s return of service on Mr. Miller states that he was
served at 263 West End Avenue, Brooklyn, NY 11235 by delivering
copies to a co-resident, Nina Vaskinia, at that address.
No. 9, Miller Summons Returned Executed.)

(ECF

Mr. Miller also

states that on August 15, 2019, he was living in the Goldmaker
basement at 1824 Avenue U in Brooklyn.
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(ECF No. 15, Objection

to Report and Recommendations.)

His letter also states that he

“ordered the fight for himself so I can watch it,” and that
there were two or three workers at the establishment at the
time.

(Id.)

Miller also disputes the capacity of the

establishment, claiming that it cannot accommodate 100 people.
(Id.)
Because there appears to be a dispute as to whether
service of process was properly effectuated on Miller and other
questions of fact, this court denies without prejudice
plaintiff’s motion for default judgment as to Miller.
CONCLUSION
Upon a careful review of the record and Judge Pollak’s
thorough, well-reasoned Report and Recommendation, the court
affirms and adopts the Report and Recommendation as to
Goldmaker.

The court denies without prejudice plaintiff’s

motion for default judgment as to Miller.

The court orders Mr.

Miller and the plaintiff to appear for a telephone conference at
11:00 a.m. on Tuesday, April 6, 2021.

The parties shall dial

into the conference by calling 1-888-684-8852 and entering the
following access code: 1312089.

Plaintiff is ordered to serve a

copy of this Order on both defendants and file a declaration of
service no later than April 1, 2021.

The Clerk of Court shall

enter judgment against Goldmaker Inc., d/b/a Estelle Lounge in
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the amount of $7,375, and serve the judgment at 1824 Avenue U,
Brooklyn, NY, and note service on the docket.
SO ORDERED.
Dated:
March 31, 2021
Brooklyn, New York

_______ _/s/
Kiyo A. Matsumoto
United States District Judge

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