Opinion
No. 04-CV-3477 (NG) (KAM).
September 2, 2005
REPORT AND RECOMMENDATION
By order entered on January 7, 2005, United States District Judge Nina Gershon referred this matter, pursuant to 28 U.S.C. § 636(b), to the undersigned magistrate judge for an inquest on damages, following an application by plaintiff for the entry of a default judgment against defendants for alleged violations of 47 U.S.C. §§ 553, 605(a) and 605(e)(4), and a notation of default by the Clerk of the Court entered on January 3, 2005. See Docket No. 8, Order Referring Motion for RR; Docket No. 1, Complaint ("Compl.") ¶ 1; Docket No. 7, Clerk's Notation of Default. Plaintiff's default motion seeks statutory damages of up to $10,000 against each defendant and an enhanced damages award of up to $100,000 against each defendant. Plaintiff's also seeks attorneys' fees, costs, interest and a permanent injunction. Defendants have not made any submissions in opposition to plaintiff's motion, despite receiving notice and an opportunity to do so. See Docket No. 9, Certificate of Service.
For the reasons set forth below, it is respectfully recommended that a default judgment be entered against defendants, jointly and severally, in the amount of $12,000, inclusive of basic and enhanced statutory damages, attorneys' fees of $1,050, and costs of $565, for a total award of $13,615. It is also respectfully recommended that this amount accrue interest at the rate of nine percent from September 13, 2003 to the entry of judgment, and that the judgment accrue interest at the rate provided by law until paid. Furthermore, it is respectfully recommended that plaintiff's request for a permanent injunction be denied.
I. BACKGROUND
The complaint alleges that plaintiff entered into a license agreement to distribute the broadcast of a boxing match between Oscar De La Hoya and Shane Mosley ("De La Hoya/Mosley match" or the "Event") on September 13, 2003, via closed-circuit television and encrypted satellite signal to commercial establishments for an unspecified licensing fee. See Compl ¶¶ 12-13; Docket No. 6, Ex. 2, Affidavit of Julie Cohen Lonstein, Esq., in Support of Notice of Motion for Default Judgment ("Lonstein Aff.") ¶¶ 2-3. The De La Hoya/Mosley match originated via satellite uplink and was re-transmitted to cable systems and satellite companies via cable signal. Compl. ¶ 12. Plaintiff entered into contracts with various entities within the State of New York which granted them the right to publicly exhibit the Event to their patrons. Id. ¶ 13; Lonstein Aff. ¶ 3.
To identify and prosecute commercial establishments which illegally intercepted its broadcast, plaintiff provided investigative agencies with a list of authorized and legal locations which had paid the required fee for exhibition of the De La Hoya/Mosley match. Lonstein Aff. ¶ 3; see also Affidavit of Carl Thomas ("Thomas Aff."), annexed to Lonstein Aff. as Ex. A. During the broadcast, a team of auditors visited commercial establishments not named on the list. Lonstein Aff. ¶ 3.
Although defendants were not authorized to receive the broadcast (see Compl. ¶¶ 15-16), the investigator for plaintiff who visited the defendant Establishment Cama Fe Restaurant Corp. d/b/a Camafe Restaurant (the "Establishment"), at 200 Knickerbocker Avenue, Brooklyn, NY, on September 13, 2003 at approximately 11:57 p.m., saw the De La Hoya/Mosley match on "1 television set[,] . . . 24-30"[,] . . . located over the bar."See Thomas Aff. During his presence in the Establishment, the investigator counted, on three separate occasions, that there were "12 people" in the Establishment, which had a capacity of approximately "60 people."
The investigator's affidavit stated that he observed approximately 12 "people" in the Establishment but does not clarify how many of those 12 were "patrons" as opposed to employees.
Plaintiff asserts that the De La Hoya/Mosley match on September 13, 2003 was not and could not be mistakenly or innocently intercepted by defendants. Lonstein Aff. ¶ 8; Compl. ¶¶ 15-16. Although defendants' specific method of illegally intercepting the signal for the De La Hoya/Mosley match is unknown, plaintiff surmises that defendants could have modified a device or utilized equipment used primarily in the assistance of the unauthorized decryption of satellite cable programming. See Compl. ¶¶ 15-16, 23; Docket No. 6, Ex. E., Affidavit of Joseph Gagliardi, President of Garden City Boxing Club, Inc. ("Gagliardi Aff.") ¶ 9.
II. DISCUSSION
A. LiabilityFederal Rule of Civil Procedure 55(b)(2) provides that when a party moves for judgment against an adverse party in default, the Court, in its discretion, may enter judgment against the defaulting party. Plaintiff has made such an application and the defendants have failed to respond to the complaint, or otherwise defend against this action or oppose plaintiff's motion for default judgment. Judgment by default is therefore appropriate, and accordingly, it is respectfully recommended that default judgment be entered against defendants in the amount specified below.
A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages. See Greyhound Exhibitgroup, Inc., v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). That is, a default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability (see Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir. 1995)), and the sole remaining issue before the court is whether the plaintiff has provided adequate support for the relief it seeks. Greyhound Exhibitgroup, 973 F.2d at 158.
As noted above, plaintiff's complaint sets forth 47 U.S.C. §§ 553 and 605 as bases for relief. Plaintiff's papers in support of its motion for default judgment, however, appear to abandon 47 U.S.C. § 553 to the extent that such papers are devoid of any mention to § 553 as a basis for relief. Notwithstanding the discrepancy between the complaint and plaintiff's motion for default judgment, the Court will discuss liability under 47 U.S.C. §§ 553 and 605, but will limit its consideration of damages to 47 U.S.C. § 605 for the reasons stated below.
Section 553(a)(1) provides:
No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.
Section 605(a) provides in relevant part:
No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, 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.
Plaintiff's complaint appears to establish the elements of liability required to state claims under both § 553(a)(1) and § 605(a). In cases involving broadcasts which are transmitted over the air but are also distributed over a cable system § 605(a) will apply "to the extent reception or interception occurs prior to or not in connection with, distribution of the service over a cable system," while § 553(a) applies to "theft of a service from the point at which it is actually being distributed over a cable system." Int'l Cablevision, Inc. v. Sykes, 997 F.2d 998, 1008 (2d Cir. 1993). Thus, while the Event was conveyed via interstate satellite transmission, plaintiff has alleged that defendants could not have obtained transmission of the Event without performing one of the following illegal acts: (1) using an unauthorized cable decoder known as a "blackbox," (2) purposefully misrepresenting the commercial Establishment as a residential property and thus paying a residential fee for a pay-per-view broadcast, as opposed to the commercial fee charged by plaintiff, or (3) illegally altering the cable service to bring the signal of the Event into the Establishment. See Gagliardi Aff. ¶ 9. To the extent that the defendants stole services at the point that they were distributed via cable, defendants' acts constitute a violation of § 553(a). See Entm't by JJ Inc. v. Mama Zee Rest. Catering Servs., Inc., No. 01 Civ. 3945, 2002 WL 202522, at *2 (E.D.N.Y. May 21, 2002).
Section 605(a) has been deemed applicable to thefts of cable communications, as long as the cable programming originated as a radio communication. See Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 131 n. 5 (2d Cir. 1996). Since plaintiff alleges that the Event was conveyed via interstate satellite transmission (see Compl. ¶¶ 12, 15-17), defendants' interception of plaintiff's signal constitutes a violation of 47 U.S.C. § 605(a).See King Vision Pay-Per-View Corp., Ltd. v. Tardes Calenas Moscoro, Inc., No. 01 Civ. 9775, 2004 WL 473306, at *2 (S.D.N.Y. Mar. 12, 2004) (holding that defaulting defendant was liable under 47 U.S.C. § 605, where plaintiff's factual allegations referred to "satellite transmissions, which indicate that the broadcast originated with a radio transmission.").
It is, however, well-settled in the Second Circuit that a plaintiff cannot recover under both § 553(a) and § 605(a). "[W]here a defendant is found to have violated both statutes, the court should award damages pursuant to 47 U.S.C. § 605." Time Warner Cable v. Taco Rapido Rest., 988 F. Supp. 107, 110 (E.D.N.Y. 1997) (citing Sykes, 997 F.2d at 1007). Accordingly, plaintiff's request for damages will be considered only under 47 U.S.C. § 605.
Count II of plaintiff's complaint also claims relief pursuant to 47 U.S.C. § 605(e)(4), which provides, in relevant part:
Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both. For purposes of all penalties and remedies established for violations of this paragraph, the prohibited activity established herein as it applies to each such device shall be deemed a separate violation.
"As several district courts have recognized, 47 U.S.C. § 605(e)(4), which addresses the manufacture, assembly, modification, import, export, sale, and distribution of pirate access devices, is aimed at 'upstream manufacturers and distributors, not the ultimate consumer of pirating devices.'"DirecTV v. Nezak, No. 03 Civ. 918, 2005 WL 1353618, at *2 (D. Conn. May 10, 2005) (quoting DirecTV, Inc. v. Albright, No. 03 Civ. 4603, 2003 WL 22956416, at *2 (E.D. Pa. Dec. 9, 2003)); see also DirecTV, Inc. v. Borich, No. 03 Civ. 2146, 2004 WL 2359414, at *3 (S.D.W.Va. Sept. 17, 2004); Kingvision Pay-Per-View, Ltd. v. Ruiz, 04 Civ. 6566, 2005 WL 589403, at *1 (S.D.N.Y. Mar. 9, 2005) ("Section 605(e)(4) prohibits the modification of equipment used to assist in the reception of broadcasts and is 'targeted at the distributors of cable interception devices . . . and not at the end-users of such devices.'") (quoting Joe Hand Promotions, Inc. v. Hernandez, No. 03 Civ. 6132, 2004 U.S. Dist. LEXIS 12159, at *3, 11-12 (S.D.N.Y. June 30, 2004)).
Plaintiff merely alleges that defendants violated § 605(e)(4) insofar as their agents or employees "knowingly . . . modified a device or utilized equipment, knowing or having reason to know that the device or equipment is used primarily in the assistance of the unauthorized decryption of satellite cable programming. . . ." Compl. ¶ 23. There is, however, no factual assertion to support a finding that defendants are no more than "ultimate consumers" or "end users" of an illegally modified device, as opposed to "upstream manufacturers and distributors" of such a device, for purposes of liability under § 605(e)(4). Because the complaint lacks the necessary factual assertions to support a finding of damages under § 605(e)(4), the Court will limit its consideration of damages to violations of 47 U.S.C. § 605(a).
B. Damages
While the allegations of a complaint pertaining to liability are deemed admitted upon entry of a default judgment, allegations relating to damages are not. See Chen, 30 F. Supp. 2d at 623. Instead, claims for damages generally may be established in a hearing at which the defendant is afforded the opportunity to contest the amount claimed. See Greyhound Exhibitgroup, 973 F.2d at 158.
Plaintiff seeks an award of statutory damages, and does not seek to establish or recover its actual damages. Defendants have not filed any opposition to plaintiff's submissions, or otherwise responded to plaintiff's allegations or to the relief sought, despite having notice and an opportunity to do so. In this regard, the holding of an inquest by affidavit, without an in-person court hearing, is permitted "as long as [the court has] ensured that there was a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quotingFustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).
Title 47 U.S.C. § 605(e)(3)(C)(i)(II) allows a party to recover an award of statutory damages "for each violation of subsection (a) . . . involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just[.]" In addition, § 605(e)(3)(C)(ii) provides that where "the court finds that the violation was committed willfully and for the purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a). . . ."
While 47 U.S.C. § 605 provides little guidance for assessing damages (see Time Warner Cable v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 489 (S.D.N.Y. 1999); Cablevision Sys. New York City Corp. v. Diaz, No. 01 Civ. 4340, 2002 WL 31045855, at *3 (S.D.N.Y. July 10, 2002)), courts in this circuit have relied upon one of two methods of calculating statutory damages in cases involving the unauthorized receipt and exhibition of pay-per-view events. See Googies Luncheonette, 77 F. Supp. 2d at 489. The first method bases the award on the number of patrons in the establishment who viewed the broadcast. See, e.g., Kingvision Pay-Per-View Ltd. v. Cardona, No. 03 Civ. 3839, 2004 WL 1490024, at *3 (S.D.N.Y. June 30, 2004) ($20 per patron); Taco Rapido Rest., 988 F. Supp. at 111 ($50 per patron); Cablevision Sys. Corp. v. 45 Midland Enter., Inc., 858 F. Supp. 42, 43 (S.D.N.Y. 1994) ($50 per patron). The second method awards a flat sum for each violation. See, e.g., Entm't by JJ, Inc. v. Suriel, 01 Civ. 11460, 2003 WL 1090268, at *1 (S.D.N.Y. Mar. 11, 2003) (awarding $11,000); Kingvision Pay-Per-View Corp., Ltd. v. Papacito Lidia Luncheonette, Inc., 01 Civ. 7575, 2001 WL 1558269, at *2 (S.D.N.Y. Dec. 6, 2001) (awarding $20,000);Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 2d 438, 442-43 (S.D.N.Y. 2001) (awarding $15,000). In cases where there is uncontradicted evidence of the number of patrons viewing the match in an establishment, courts have used the first approach and multiplied the number of patrons by a set sum, plus any cover charges or other profits attributable to the unauthorized viewing. See Googies Luncheonette, 77 F. Supp. 2d at 489; see also Cardona, 2004 WL 1490224, at *3; Time Warner Cable v. Sanchez, No. 02 Civ. 5855, 2003 WL 21744089, at *4 (S.D.N.Y. July 8, 2003). This is based on the theory that the patrons who watched the unauthorized broadcast would have ordered it individually for residential use. See Googies Luncheonette, 77 F. Supp. 2d at 490.
Here, however, the Court need not award damages based on the number of persons who actually viewed the unauthorized broadcast because plaintiff has set forth the licensing fee that it charged its legitimate commercial customers for authorization to exhibit the Event. See docket no. 10, Plaintiff's Supplemental Memorandum of Law in Support of Damages ("Suppl. MOL"), Ex. A, Rate Card. Such fees are based entirely on the capacity of the establishment. A commercial establishment with a seating capacity of between 51 to 100 persons would have been charged $1,800, plus a $200 "DirecTV Tech Fee." See Id. According to plaintiff's investigator, the defendant Establishment had a capacity of 60 persons. See Thomas Aff. Thus, the licensing fee that plaintiff would have charged defendants is $2,000. Accordingly, it is respectfully recommended that plaintiff be awarded $2,000 in basic statutory damages.
Plaintiff further seeks an enhancement of damages for willfulness in the sum of $100,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(ii). See Compl. ¶ 20; Lonstein Aff. ¶ 8(B)(5). To receive enhanced damages, plaintiff must prove that defendants' display was willful and for "purposes of direct or indirect commercial advantage or private financial gain." See 47 U.S.C. § 605(e)(3)(C)(ii). Courts typically consider the following factors in determining whether a defendant's willful conduct calls for enhanced damages: "repeated violations over an extended period of time; substantial unlawful monetary gains; significant actual damages to plaintiff; defendant's advertising for the intended broadcast of the event; defendant's charging a cover charge or charging premiums for food and drinks." See Kingvision Pay-Per-View, Ltd. v. Recio, No. 02 Civ. 6583, 2003 WL 21383826, at *5 (S.D.N.Y. June 11, 2003) (internal citations omitted).
Plaintiff does not allege that defendants advertised or displayed the fight to entice patrons into the Establishment, imposed an admission or cover charge, or that patrons went to the Establishment because of its display of the De La Hoya/Mosley match. Plaintiff is nonetheless entitled to a further enhancement of the damages award because the record demonstrates that defendants affirmatively and willfully engaged in some deliberate act to intercept the De La Hoya/Mosley match for financial gain, and because defendants have broadcasted a similar boxing match without authorization on at least one subsequent occasion. See Suppl. MOL, Ex. B, Piracy Affidavit of Craig Carita dated October 5, 2004.
In circumstances demonstrating such willful and repeated violations, it is appropriate to assess enhanced damages in conjunction with basic statutory damages. The Court finds that enhanced damages of $10,000 are appropriate in this case. Accordingly, it is respectfully recommended that plaintiff be awarded $2,000 in basic statutory damages and $10,000 in enhanced statutory damages, for a total damages award of $12,000.
C. Attorneys' Fees and Costs
Plaintiff's motion requests attorneys' fees in the amount of $1,050 and costs in the amount of $565 from both defendants.See Lonstein Aff. ¶ 22; Suppl. MOL, Ex. D, Affidavit of Attorney Fees. An award of costs, including reasonable attorneys' fees, is mandatory under 47 U.S.C. § 605. See 47 U.S.C. § 605(e)(3)(B)(iii).
In the Second Circuit, a party seeking an attorneys' fees award "must support that request with contemporaneous time records that show, 'for each attorney, the date, the hours expended, and the nature of the work done.'" Diaz, 2002 WL 31045855, at *5 (quoting New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983)). In support of its request, plaintiff's counsel has provided records of work performed litigating the instant action. Plaintiff's counsel's time record reflects an expenditure of 5.25 hours of attorney time at a rate of $200 per hour, equaling $1,050. See Affidavit of Attorney Fees. Because these rates are reasonable (see Martas v. Zaro's Bake Shop, Inc., No. 98 Civ. 5895, 2002 WL 1267999, at *6 (E.D.N.Y. Mar. 29, 2002); Wells Fargo Bank v. BrooksAmerica Mortg. Corp., No. 02 Civ. 4467, at *3 (Dec. 1, 2004)), and because the number of hours expended by counsel do not appear excessive, redundant, or otherwise unnecessary (see Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)), it is respectfully recommended that the Court grant plaintiff's request for attorneys' fees in the total amount of $1,050.
The Court has examined plaintiff's request for costs, as well as the documentary evidence that plaintiff has submitted in support of its request, and finds that it has incurred a total of $565 in costs as follows: $150 in court filing fees, $140 in process server fees for service on both defendants (see Lonstein Aff., Ex. D), and investigative expenses of $275. See Lonstein Aff. ¶ 22. Accordingly, it is respectfully recommended that plaintiff be awarded costs in the total amount of $565.See Guzman, 2005 WL 1153728, at *3 (awarding process server fees, filing fee and investigative expenses). D. Liability of Individual Defendant
Plaintiff's complaint names both Martha M. Rosado ("Rosado") and the Establishment as defendants. Rosado is an officer, director, shareholder and/or principal of the defendant Establishment, Camafe Restaurant. See Compl. ¶¶ 5-10; Lonstein Aff. ¶ 4. To establish a contributory violation of 47 U.S.C. § 605(a), plaintiff must show that Rosado "authorized" the violations set forth in the complaint. See Kingvision Pay-Per-View Ltd. v. Olivares, No. 02 Civ. 6588, 2004 WL 744226, at *5 (S.D.N.Y. Apr. 5, 2004) (quoting Softel Inc. v. Dragon Med. Sci. Communications, 118 F.3d 955, 971 (2d Cir. 1997)). "To establish vicarious liability, . . . [plaintiff] must show that . . . [individual defendant] 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 Softel, 118 F.3d at 971).
The undisputed allegations in the complaint and plaintiff's submissions in support of the default judgment motion established the requisite control and financial interest for defendant Rosado, and therefore, the Court finds that Rosado is jointly and severally liable for violations of 47 U.S.C. § 605(a), as discussed above. Accordingly, it is respectfully recommended that plaintiff's award be limited to a single recovery against both defendants, jointly and severally.
E. Interest
Plaintiff also requests interest at a rate nine percent from September 13, 2003, the date of the unauthorized exhibition of the De La Hoya/Mosley match, to an unspecified date or event.See docket no. 6, Notice of Motion for Default Judgment.
When a federal statute is silent with respect to a prejudgment interest rate, the "'common practice' among courts within the Second Circuit is to grant interest at a rate of 9%, the rate of prejudgment interest under New York State law." Service Employees Int'l. Union, Local 32BJ, AFL-CIO v. Stone Park Assoc., LLC, 326 F. Supp. 2d 550 (S.D.N.Y. 2004) (citing N.Y.C.P.L.R. §§ 5001- 5004 (McKinney 1992)). Accordingly, because 47 U.S.C. § 605 is silent with respect to a prejudgment interest rate, it is respectfully recommended that plaintiff be awarded prejudgment interest at a rate of nine percent from September 13, 2003 to the date of entry of judgment in this action. See Recio, 2003 WL 21383826, at *6 (awarding nine percent interest rate from date of unauthorized showing of boxing match); Ruiz, 2005 WL 589403, at *2 (same); see also N.Y. C.P.L.R § 5004 (McKinney 1992).
Furthermore, post-judgment interest is available in civil judgments entered in federal court from the date of the judgment until paid. See 28 U.S.C. § 1961. Accordingly, it is respectfully recommended that post-judgment interest be awarded at the rate provided by law.
F. Permanent Injunction
Plaintiff also seeks permanent injunctive relief against the defendants pursuant to 47 U.S.C. § 605(e)(3)(B)(i). The Court "may issue an injunction on a motion for default judgment provided that the moving party shows that (1) it is entitled to injunctive relief under the applicable statute and (2) it meets the prerequisites for the issuance of an injunction."Cablevision of Southern Conn. v. Smith, 141 F. Supp. 2d 277, 287-88 (D. Conn. 2001). The first condition is met in this case because injunctions are remedies available under 47 U.S.C. § 605(e)(3)(B)(i). Nevertheless, the Second Circuit has cautioned that "injunctive relief does not follow automatically upon a finding of statutory violation. . . ."Town of Huntington v. Marsh, 859 F.2d 1134, 1143 (2d Cir. 1988).
Plaintiff must also show irreparable harm and the absence of an adequate remedy at law in order to obtain a permanent injunction.See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57 (1975);New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). To satisfy the irreparable harm requirement, a party seeking injunctive relief ordinarily "must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages." NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995) (citations omitted).
In this case, plaintiff has not made an adequate showing that it will likely suffer any imminent irreparable harm absent an injunction against defendants. The Court has found no evidence that the defendants would continue to harm plaintiff through violations 47 U.S.C. § 605, and is satisfied that basic and enhanced statutory monetary damages provide adequate remedies in the event that defendants commit similar violations in the future. See, e.g., Main Events/Monitor Productions v. Batista, No. 96 Civ. 5089, 1998 WL 760330, at *1 (E.D.N.Y. Aug. 26, 1998) (injunctive relief denied when plaintiff failed to show that its remedy at law was inadequate and that it will suffer irreparable harm). Accordingly, because there is no evidence that the violations are continuing or that the statutory damages are insufficient to deter future conduct, it is respectfully recommended that plaintiff's request for a permanent injunction be denied.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that a default judgment be entered against defendants, jointly and severally, in the amount of $12,000, inclusive of basic and enhanced statutory damages, attorneys' fees of $1,050 and costs of $565, for a total award of $13,615. It is also respectfully recommended that this amount accrue interest at the rate of nine percent from September 13, 2003 to the entry of judgment, and that the judgment accrue interest at the rate provided by law until paid. Furthermore, it is respectfully recommended that plaintiff's request for a permanent injunction be denied.Plaintiff is ordered to serve a copy of this Report and Recommendation on the defendants upon receipt and to file an affidavit of service thereafter. Any objections to this Report and Recommendation must be filed with United States District Judge Nina Gershon within ten days of the date of entry of this Report and Recommendation. Failure to object within ten days of the date of entry will preclude appellate review by the District Court. See Local Civil Rule 6.3; Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); see also Fed.R.Civ.P. 72(a) ("Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made."). Any requests for extensions of time to file objections should be made to Judge Gershon.
SO ORDERED.