Summary
declining to follow magistrate judge recommendation that the plaintiff be awarded investigative fees
Summary of this case from G&G Closed Circuit Events, LLC v. LlanosOpinion
05 Civ. 10001 (RMB) (AJP).
June 16, 2006
DECISION ORDER
I. Background
On November 21, 2005, Garden City Boxing Club ("Plaintiff") filed a complaint against Latino Restaurant and Laurentino Mendez, individually and as officer, director, shareholder and/or principal of Latino Restaurant ("Defendants"). The complaint alleges that Defendants violated the Federal Communications Act of 1934, 47 U.S.C. § 553 and § 605, by intercepting, receiving, descrambling and exhibiting, without leave or permission from Plaintiff, a November 27, 2004 pay-per-view television broadcast of a Barrera/Morales boxing match. (See Complaint, dated November 21, 2005 ("Complaint"), at 3-4, 6-7.)
The matter was referred to Magistrate Judge Andrew J. Peck for an inquest on damages following entry of a default judgment in favor of Plaintiff and against Defendants on April 10, 2006. (See Default Judgment, dated April 10, 2006, at 2-3 ("ORDERED AND ADJUDGED that . . . the Plaintiff, does recover jointly and severally of, LAURENTINO MENDEZ . . . [and] LATINO RESTAURANT . . . Issue of damages is referred to Magistrate Judge Peck for inquest.").) After reviewing the Complaint, the Plaintiff's Inquest Memorandum, dated April 23, 2006, and the Plaintiff's Attorney Affidavit of Costs and Fees, dated April 23, 2006, Magistrate Peck issued a Report and Recommendation, dated May 12, 2006 ("Report"), recommending that Plaintiff be awarded "$60,000 in statutory damages and $2,268.75 in attorneys' fees, expenses and costs [including $350 in investigative fees]" pursuant to 47 U.SC. 605(e)(3). (Report at 7.) The Report also states that Magistrate Peck "directed the parties to submit inquest papers and opposition papers, which plaintiff did and although the deadline has passed, defendants have not done so." (Id. at 1.)
The Report advises that "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. . . . Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman." (Id. at 7.) No objections were filed to the Report.
For the reasons stated below, the Report is adopted in all material respects except that Plaintiff is not granted damages for investigative fees.
II. Standard of Review
In reviewing a magistrate's report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Hudson Venture Partners, L.P. v. Patriot Aviation Group, Inc., No. 98 Civ. 4132, 2001 WL 345243, at *1 (S.D.N.Y. Apr. 9, 2001) (quoting 28 U.S.C. § 636(b)(1)(c)). Where no objections have been filed, "the Court need not perform a de novo review." Wilson Impex PTE Ltd. v. American Polymer Group, Inc., No. 97 Civ. 4157, 2000 WL 1855122, at *1 (S.D.N.Y. Dec. 19, 2000) (emphasis in original). "A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error." Id.; Hudson Venture Partners, L.P., 2001 WL 345243, at *1 ("a district court need only satisfy itself that there is no clear error on the face of the record"). However, "[e]ven if neither party objects to the magistrate's recommendation, the district court is not bound by the recommendation of the magistrate." Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
III. Analysis
The Court has reviewed the Report as well as the relevant legal authorities and finds no "clear error." The Report is not facially erroneous and is, in fact, supported by the record and the law.
The Court, however, respectfully declines to follow Magistrate Peck's recommendation that Plaintiff should be awarded reimbursement for investigative fees. (See Report at 7 ("Whether the $350 for investigator fees is allowable as part of the award of attorney's fees or needs to be considered an addition to the statutory damages awarded, plaintiff should receive it in this case").) See Joe Hand Promotions, Inc. v. Soto, No. 01 Civ. 0329, 2003 WL 22962810, at *2 (S.D.N.Y. Dec. 17, 2003) ("there is no authority to award `investigative fees' as costs"); see also Kingvision Pay-Per-View Ltd. v. Autar, 426 F. Supp. 2d 59, 66-68 (E.D.N.Y. 2006). And, statutory damages are clearly sufficient in these circumstances. See Kingvision Pay-Per-View Ltd. v. Lalaleo, No. 05 Civ. 2659, 2006 WL 1071885, at *1-4 (E.D.N.Y. April 24, 2006).
IV. Conclusion and Order
For the reasons set forth therein and herein, the Court adopts the Report in all material respects. Judgment is entered in favor of Plaintiff and against Defendants for $60,000 plus $1,918.75 in attorneys' fees, expenses and costs. The Clerk is respectfully requested to enter judgment in accordance with this Decision and Order.
The total costs of $2,268.75 recommended in the Report are reduced by $350 which is the amount of investigative fees.