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granting permanent injunction upon defendants' fourth "egregious" violation, where each illegal broadcast was to more than 120 patrons in a commercial establishment with a maximum occupancy of 250, and where defendants "are undeniably deriving increased revenue by continuing to show these pirated boxing events in their establishment"
Summary of this case from J J Sports Productions, Inc. v. RodriguesOpinion
CV-05-0614 (RJD) (JMA).
October 6, 2005
Julie Cohen Lonstein, Esq., Lonstein Law Office, P.C., Ellenville, New York, Attorney for Plaintiff.
Carmen Batista, Howard Beach, New York, Defendant.
Francesca Duran, El Gran Mar De Plata, Brooklyn, New York, Defendant.
REPORT AND RECOMMENDATION
By order dated August 26, 2005, the above captioned matter was referred to me by the Honorable Raymond J. Dearie for a report and recommendation on damages. Plaintiff has made an application for damages, as well as attorney's fees and costs against defendants Carmen Batista, and Francesca Duran, individually and as officers, directors, shareholders, and/or principals of 3175 Fulton Restaurant Corp. d/b/a El Gran Mar De Plata, and 3175 Fulton Restaurant Corp. d/b/a El Gran Mar De Plata. For the reasons set forth below, I respectfully recommend that a judgment be entered against defendants, jointly and severally, in the amount of $9,500 in statutory damages, plus a $20,000 increase for the willful violation of the statute, as well as $2,090 for attorney's fees and costs, for a total damages award of $31,590. I further recommend that plaintiff's request for a permanent injunction be granted.
I. BACKGROUND
Plaintiff, Kingvision Pay-Per-View, Ltd. ("Kingvision") is a franchised cable television operator that markets and licenses the commercial viewing of boxing events on a pay-per-view basis. Kingvision was the broadcast licensee of the October 2, 2004 boxing match between Felix Trinidad and Ricardo Mayorga, including preliminary bouts. (Compl. ¶ 13.) This license allowed Kingvision to exhibit the fight to locations such as theaters, arenas, bars, clubs, lounges, and restaurants via closed circuit television and encrypted satellite signal. (Id.) Kingvision paid a substantial fee to obtain the rights to telecast the program throughout New York and subsequently marketed the sub-licensing of the broadcast. (Pl.'s Aff. For Default J. ("Pl.'s Aff."), ¶ 3.) Thirty-six commercial establishments in New York paid substantial fees to Kingvision in exchange for the right to view and transmit the event to their patrons. (Id. at Ex. A.) Defendants' establishment did not contract with plaintiff to legally broadcast the boxing match.
The interstate transmission of the match was electronically coded ("scrambled") to protect its access from those who did not pay or properly obtain a license for its viewing. By failing to contract with plaintiff for the rights to air the boxing match in their establishment, defendants would not have had the ability to receive the signal without (1) the use of a "blackbox," which is purchased for a fee, and when installed on a cable TV line will descramble reception of pay-per-view broadcasts; (2) misrepresenting their commercial nature to the cable company in order to receive transmission at a residential price between $25.00 and $50.00; or (3) the use of an illegal cable drop or splice from an apartment or home adjacent to the commercial establishment that had already purchased the broadcast at a residential price between $25.00 and $50.00. (Pl.'s Aff. ¶ 8.)
On October 2, 2004, without authorization, defendants intercepted and received the signal for the Trinidad/Mayorga boxing event. (Compl. ¶ 16.) Defendants then transmitted the event to patrons in their commercial establishment, El Gran Mar De Plata, located at 3175 Fulton Street, Brooklyn, New York 11208. (Id.) An investigator for plaintiff visited El Gran Mar De Plata at approximately 10:00 p.m. and observed the Trinidad/Mayorga event on the television. He counted approximately 190 patrons and estimated the approximate capacity of the restaurant to be 250 patrons. (Aff. of James Russo dated October 20, 2004 ("Russo Aff."), at 1-2.)
Plaintiff filed a complaint against defendants on January 31, 2005. After having been personally served with copies of the Summons and Complaint, defendants failed to answer or otherwise move with respect to the Complaint and the time to do so has expired. To date, defendants have failed to make an appearance. As a result, an entry of a default judgment against defendants was ordered on August 26, 2005 by Judge Dearie and the discrete issue of damages was referred to me for a report and recommendation.
II. DISCUSSION
A. Default
Defendants' default amounts to an admission of liability. Therefore, all of the well-pleaded allegations in plaintiff's complaint pertaining to liability are deemed true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). Plaintiffs, however, must prove damages before the entry of a final default judgment. Credit Lyonnais Securities, Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). The district court must conduct an inquiry to ascertain the amount of damages with reasonable certainty. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997). Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that, when granting a default judgment, if "it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence . . . the court may conduct such hearings or order such references as it deems necessary and proper." The Second Circuit has held that, under Rule 55(b)(2), "it is not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in the default judgment." Transatlantic Marine, 109 F.3d at 111 (internal quotations omitted).
B. Damages
Plaintiff seeks statutory damages for defendants' violations of the Cable Communications Policy Act, as amended, 47 U.S.C. §§ 553(a)(1) and 605(a), as well as enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii). The court has discretion in assessing the amount of damages under these provisions. See Time Warner Cable of New York City v. Taco Rapido Rest., 988 F. Supp. 107, 110 (E.D.N.Y. 1997).
1. Statutory Damages
Plaintiff seeks damages for defendants' violations of 47 U.S.C. §§ 553(a)(1) and 605(a). Section 553 prohibits persons from intercepting or receiving "any communications service offered over a cable system, unless specifically authorized to do so. . . ." 47 U.S.C. § 553(a)(1). Section 605 proscribes the unauthorized interception and publication of any "radio communication." Id. § 605(a).
Where, as in this case, defendants admit to violating both sections, a plaintiff may elect to recover damages under § 605, which provides for greater recovery than § 553. See Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 131 n. 5 (2d Cir. 1996). Section 605 states that where a plaintiff is unable to provide evidence of the extent of any violations, the plaintiff may elect to recover statutory damages, rather than actual damages. See 47 U.S.C. § 605(e)(3)(C)(i). As a result of defendants' default, Kingvision has been unable to ascertain the extent of defendants' violations. Plaintiff has therefore elected to recover statutory damages.
The range of statutory damages for a violation of § 605(a) is $1,000 to $10,000. Id. § 605(e)(3)(C)(i)(II). The court has discretion to determine the number of violations and assess damages for each violation. Id. The statute does not clearly define "violation." It is therefore left to the court to decide which acts constitute a violation.
The court has two options when assessing damages under § 605. First, it can multiply the number of patrons present at the unauthorized broadcasting by a specific dollar amount, typically the customary charge for the pay-per-view event being shown.See, e.g., Time Warner Cable of New York City v. Googies Luncheonette, Inc., 77 F. Supp. 2d 485, 489 (S.D.N.Y. 1999) (awarding statutory damages of $50.00 per patron); Time Warner Cable of New York City v. Taco Rapido Rest., 988 F. Supp. 107, 111 (E.D.N.Y. 1997) (awarding statutory damages of $50.00 per patron); Cablevision Sys. Corp. v. 45 Midland Enterprises, 858 F. Supp. 42, 45 (S.D.N.Y. 1994) (awarding statutory damages of $50.00 per patron). Alternatively, where the exact number of patrons is unknown, the court can impose damages based on what it "considers just." See, e.g., Kingvision Pay-Per-View, Ltd. v. Scott E's Pub, Inc., 146 F. Supp. 2d 955, 959 (E.D. Wis. 2001) (awarding $5,250 in statutory damages); Home Box Office v. Champs of New Haven, Inc., 837 F. Supp. 480, 484 (D. Conn. 1993) (awarding $10,000 in statutory damages).
Other factors that the court may consider in assessing a plaintiff's damages are "the pecuniary loss sustained by the victim as a result of the offense, the financial resources of the defendant, . . . the financial needs and earning ability of the defendant . . . as well as the burden that a damage award would impose on the defendant relative to the burden alternative relief would impose." Cablevision Sys. Corp. v. De Palma, No. 87-CV-3528, 1989 WL 8165, at *6 (E.D.N.Y. Jan. 17, 1989) (quotingCablevision Sys. Dev. Co. v. Cohen, No. 84-CV-1155, slip op. at *4-5 (E.D.N.Y. May 20, 1988)).
Kingvision invests millions of dollars annually promoting boxing broadcasts. (Pl.'s Aff. ¶ 10.) With each establishment that pirates signals, plaintiff suffers an erosion of its profits and is consequently forced to pass on these costs to lawful residential and commercial customers through increased pricing. (Id. ¶¶ 13-14.) An affidavit from Kingvision's Vice-President states that a personal residence would have been able to purchase the Trinidad/Mayorga event for an amount between $25.00 and $50.00. (Id. ¶ 8B.) No figure is provided, however, for what a commercial entity would have been charged.
Based upon the foregoing considerations and facts of this case, I recommend that the per patron amount be set at $50.00. During his brief visit to El Gran Mar De Plata, the investigator determined that there were 190 patrons present. (See Russo Aff. at 2.) Accordingly, I respectfully recommend that Kingvision be awarded statutory damages in the amount of $9,500.
The investigator's affidavit states that on the evening of October 2, 2004, he entered El Gran Mar De Plata at approximately 10:00 p.m. and left at approximately 10:00 p.m. (See Russo Aff. at 1-2.) After having reviewed this affidavit, as well as affidavits from investigators in substantially similar cases, I have noticed that they typically spend a mere four to six minutes inside each commercial establishment. During this short time, they somehow manage to conduct three headcounts and make a note as to (1) what the bartender or waiter is wearing; (2) how many televisions there are and where they are located; (2) whether there is a cable box; (3) what channel the television is tuned to; (4) which particular boxing match is on the television (e.g. one of the preliminary bouts or the main event); (5) the color of the boxers' trunks; (6) the round that is being broadcast; and (7) the overall layout of the establishment, which often includes a diagram. It is extremely difficult to believe that these investigators are able to gather all of this information in such a short period of time, especially in this case, where the investigator stated that he counted 190 patrons three separate times.
This sum represents $50.00 for each of the 190 patrons that the investigator observed on the evening he visited El Gran Mar De Plata.
2. Enhanced Damages
Plaintiff also seeks an increased award pursuant to 47 U.S.C. § 605 (e)(3)(C)(ii), which provides for enhanced damages if the violation was committed willfully and for commercial advantage or private financial gain. Willfulness is defined as "disregard for the governing statute and an indifference for its requirements[,]" Cablevision Sys. N.Y. City Corp. v. Lokshin, 980 F. Supp. 107, 114 (E.D.N.Y. 1997) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126-27 (1985)), and is established by the fact that an event is broadcast, without authorization, through a defendant's cable box. See Googies Luncheonette, 77 F. Supp. 2d at 490 ("[s]ignals do not descramble spontaneously, nor do television sets connect themselves to cable distribution systems."). Section 605(e)(3)(C)(ii) allows for increased damage awards against persons or entities operating commercial establishments that show the unauthorized programming to its patrons. See Googies Luncheonette, 77 F. Supp. 2d at 491 (increasing award by $12,000); Taco Rapido Rest., 988 F. Supp. at 111-12 (increasing award by $5,000).
Courts use a variety of factors in determining whether a defendant's willful conduct justifies enhanced damages. These factors include (1) repeated violations over an extended period of time; (2) substantial unlawful monetary gains; (3) advertising the broadcast; and (4) charging an admission fee or premiums for food and drinks. See Kingvision Pay-Per-View Ltd. v. El Rey Del Bistec Y Caridad, Inc., No. 01-CV-6562, 2001 WL 1586667, at *2 (S.D.N.Y. Dec. 12, 2001). Courts also consider the plaintiff's significant actual damages. Id.
In this case, Kingvision seeks the maximum increased award of $100,000 and has offered evidence that defendants pirated two events in addition to the Trinidad/Mayorga event that was broadcast on October 2, 2004. (Aff. of Julie Cohen Lonstein dated Aug. 18, 2005 ("Lonstein Aff.") Exs. B, C.) First, on September 18, 1999, defendants pirated the De La Hoya/Trinidad event from Joe Hand Promotions, Inc. See Joe Hand Promotions, Inc. v. Kossakowska, No. 00-CV-2531, slip op. (E.D.N.Y. November 27, 2001). Defendants failed to answer or otherwise appear and a default judgment was granted by the Honorable Nina Gershon. A judgment was entered against defendants in the sum of $13,057.24, which has not been satisfied. Then, on September 18, 2004, defendants pirated the De La Hoya/Hopkins event from Garden City Boxing Club, Inc. See Garden City Boxing Club, Inc. v. Batista, 05-CV-1044 (E.D.N.Y. filed Feb. 24, 2005). Defendants failed to answer or otherwise appear and a default judgment was granted by the Honorable Frederic Block. The case was referred to Magistrate Go for a report and recommendation on damages and is currently pending.
In Joe Hand Promotions, Inc. v. Kossakowska, No. 00-CV-2531, slip op. (E.D.N.Y. November 27, 2001), the plaintiffs commenced an action against approximately 67 defendants for pirating the September 18, 1999 boxing match between Oscar De La Hoya and Felix Trinidad. Carmen Batista was not a named defendant for the violation that occurred at El Grand Mar De Plata Restaurant. Batista was however a named defendant for the violation that occurred at El Nuevo Puerto Plata II a/k/a Puerto Plata Restaurant. A default judgment was granted and a judgment entered in the sum of $8,357.24. To date, this judgment has not been satisfied.
Defendant Francesca Duran is not a named defendant in this action.
A review of previous cases revealed a third instance of piracy, which was not mentioned in plaintiff's submissions. On September 21, 2001, defendants pirated the Trinidad/Hopkins event from Kingvision Pay-Per-View, Ltd. See Kingvision Pay-Per-View, Ltd. v. Duran, 03-CV-1175, slip op. (E.D.N.Y. May 14, 2004). Defendants, once again, failed to answer or otherwise appear and a default judgment was granted by the Honorable Sterling Johnson, Jr. and referred to me for a report and recommendation on damages. I recommended that plaintiff be awarded damages in the amount of $6,100. My report and recommendation was subsequently adopted in its entirety by Judge Johnson and a judgment was entered against defendants for the aforementioned amount. Defendants satisfied this judgment in full on September 13, 2005. The current case represents defendants' fourth violation.
Defendant Carmen Batista was not a named defendant in this action.
Defendants clearly continue to violate the law with impunity and their actions can only be described as willful. El Gran Mar De Plata is a large commercial establishment, accommodating up to 250 patrons. Each of the four times investigators discovered a violation, there was a minimum of 120 patrons present. During this most recent investigation, the investigator counted as many as 190 patrons. Defendants are undeniably deriving increased revenue by continuing to show these pirated boxing events in their establishment. Where defendants' behavior is egregious, as it certainly is here, I recommend that enhanced damages be awarded in the amount of $20,000 for willful violation of the statute. Under the circumstances, this amount is fair and reasonable. Furthermore, it is a significant deterrent in preventing future violations.
C. Pre-judgment Interest
Plaintiff also requests an award of pre-judgment interest. (Pl.'s Mem. at 10.) Pre-judgment interest, however, is not appropriate in this case. Plaintiff cites Kingvision v. Ruiz, 04 Civ. 6566, 2005 WL 589403 (S.D.N.Y. Mar. 9, 2005) in support of its request for pre-judgment interest; however, I am convinced that Kingvision Pay-Per-View, Ltd. v. Olivares, No. 02-CV-6588, 2004 WL 744226 (S.D.N.Y. Apr. 5, 2004) more correctly states the applicable law.
In Olivares, the court considered whether the plaintiff was entitled to pre-judgment interest under N.Y.C.P.L.R. § 5001 and concluded that it was not. Olivares, 2004 WL 744226, at *5. An award of interest under § 5001 "is founded on the theory that there has been a deprivation of use of money or its equivalent and that the sole function of interest is to make whole the party aggrieved. It is not to provide a windfall for either party."155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560, 647 N.Y.S.2d 30, 31 (2d Dep't. 1996) (citations omitted). There are two major exceptions to granting pre-judgment interest: personal injury and punitive damages claims. See Olivares, 2004 WL 744226, at *5; Deborah S. v. Diorio, 160 Misc.2d 210, 612 N.Y.S.2d 542 (1st Dep't. 1994). Statutory damages under the Communications Act are "analogous to punitive damages in that they are designed to deter others from similar infringing activity." See Olivares, 2004 WL 744226, at *5; see also Kaplan v. First City Mortgage, 183 Misc. 2d 24, 30, 701 N.Y.S.2d 859, 865 (N.Y. City Ct. 1999) (statutory damages under Telephone Consumer Protection act of 1991 are punitive; no interest accrues before judgment). Accordingly, I recommend that plaintiff's request for pre-judgment interest be denied.
D. Permanent Injunction
Plaintiff also requests a permanent injunction enjoining defendants from further violating §§ 553 or 605. (Pl.'s Mem. at 9.) Plaintiff contends that many business establishments that pirate one event will likely pirate broadcasts in the future. (Id.)
A 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." Main Events/Monitor Prods. v. Batista, No. 96-CV-5089, 1998 WL 760330, at *1 (E.D.N.Y. Aug. 26, 1998). The first condition is satisfied because injunctions are available remedies pursuant to §§ 553(c)(2)(A) and 605(e)(3)(B)(i). Second, a party seeking a preliminary injunction must demonstrate irreparable harm and the absence of an adequate remedy at law.See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57 (1975). Based upon defendants' repeated violations, utter disregard for the law, and the fact that previous judgments have had little or no deterrent effect, defendants will continue to harm plaintiff by violating § 605. I therefore recommend that plaintiff's request for a permanent injunction be granted.
E. Attorneys' Fees and Costs
1. Attorney's Fees
Finally, plaintiff is seeking an award of attorney's fees and costs pursuant to 47 U.S.C. § 605(e)(3)(B)(iii). (Pl.'s Mem. at 10.) Under the "lodestar" method, attorney's fees are determined by taking "the number of hours reasonably expended on the litigation [multiplied] by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Chambless v. Masters, Mates Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989), cert. denied, 496 U.S. 905 (1990). Reasonable hourly rates are determined by reference to "the prevailing marketplace rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Cruz v. Local Union No. 3, 34 F.3d 1148, 1159 (2d Cir. 1994). To receive such fees, plaintiff must present time records to substantiate its fee request. See New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983). Such time records must be contemporaneous and indicate "for each attorney, the date, the hours expended, and the nature of the work done." Id. at 1148.
In the present case, attorney Julie Cohen Lonstein has submitted an affidavit stating that she and her firm, Lonstein Law Office, P.C., expended a total of 9.25 hours during the pendency of this action. (Lonstein Aff. ¶ 3.) She has not submitted documentation to authenticate the number of hours spent; however, her affidavit incorporates contemporaneous time records detailing the work done, hours expended, and the total amount due. (Id.) Ms. Lonstein affirms that she expended a total of 7.25 hours at a rate of $200 per hour, reflecting,inter alia, 1 hour of factual research and development, 2.5 hours drafting the Complaint and corporate disclosure, 1 hour drafting the Request for Default, and 2 hours drafting the Motion for Default. (Id.) Ms. Lonstein also affirms 2 hours of paralegal time at a rate of $75 per hour. (Id.) Plaintiff seeks a total award of $1600 for attorney's fees. I find that the total number of hours is excessive.
Plaintiff has commenced substantially similar cases and the work performed in each is virtually identical. Furthermore, during the past few weeks, I have received three additional referrals from various District Court Judges for a report and recommendation on damages and in each of these cases, the plaintiffs were represented by Ms. Lonstein. A careful review of the Complaints, Memoranda of Law, Motions for Default Judgment, and Attorney Affidavits in these cases has revealed a standard format with the necessary changes being made for names, dates, and amounts requested. In sum, Ms. Lonstein's submissions to the Court are essentially a "cut and paste job," and a sloppy one at that.
See Garden City Boxing Club, Inc. v. Santacruz, 05-CV-0063 (E.D.N.Y. filed Jan. 3, 2005); Garden City Boxing Club, Inc. v. Rosado, 05-CV-1037 (E.D.N.Y. filed Feb. 24, 2005);Garden City Boxing Club, Inc. v. Bello, 05-CV-1300 (E.D.N.Y. filed Mar. 9, 2005).
There are numerous errors in plaintiff's submissions, some more egregious than others. First, in her Affidavit of Costs and Fees, Ms. Lonstein states that she is "the attorney for Plaintiff, Garden City Boxing Club, Inc. in the above referenced matter. . . ." (Lonstein Aff. ¶ 1.) This same error is made in plaintiff's Inquest Memorandum, where it states, "Garden City is an aggrieved party in this case . . ." (Inquest Mem. at 7.) At the very least, Ms. Lonstein should take the necessary steps to ensure that all documents correctly state the name of the plaintiff she is representing in the matter that is presently before the Court. Another error is in plaintiff's Inquest Memorandum, which states "38 patrons were counted by the auditor. . . ." (Id. at 5.) That paragraph then proceeds to set forth calculations for statutory damages based upon this figure. (Id.) The evidence, as submitted by plaintiff's own investigator, states that there were approximately 190 patrons in the restaurant. (See Russo Aff. at 2.) Third, Ms. Lonstein's affidavit states that plaintiff requests $390.00 for service of process. (Lonstein Aff. ¶ 2.) After reviewing the two invoices provided by Signal Auditing, Inc., the correct sum for the cost of service of process is $290.00. (See Lonstein Aff., Ex. A.) Fourth, Plaintiff's Memorandum of Law states that plaintiff "brought this action on November 6, 2004. . . ." (Pl.'s Mem. at 1.) Again, the information is incorrect. Plaintiff's Complaint was dated January 26, 2005 and received in the Clerk's Office on January 31, 2005. Finally, Ms. Lonstein's affidavit states that plaintiff requests $350.00 for investigative fees and refers to the invoice attached as Ex. D to Plaintiff's Affidavit for Default to substantiate this request. This invoice from Signal Auditing, Inc. clearly states that plaintiff was charged $450.00, which it subsequently paid in full.
In the docket, the "Inquest Memorandum" is labeled "Attorney Affidavit of Costs and Fees." In a letter dated September 3, 2005, Ms. Lonstein informed the Court that the "Inquest Memorandum" was mistakenly submitted as when posted to ECF on September 1, 2005.
Ms. Lonstein's affidavit has two paragraphs marked "2." I am making reference to the second of these paragraphs.
Signal Auditing charged $90.00 for service of process to Francesca Duran, $90.00 for service to the corporate defendant, 3175 Fulton Restaurant Corp., and $110.00 for service to Carmen Batista.
These are just some of the errors found in plaintiff's submissions to the Court. These errors, coupled with Ms. Lonstein's virtually identical submissions made on behalf of clients in previous cases, are sufficient evidence for me to conclude that plaintiff's request for attorney's fees is demonstrably excessive and unreasonable. Because these types of cases are substantially similar, it is reasonable to expect that certain portions of plaintiff's submissions will be virtually identical. However, when engaging in the practice of "cutting and pasting," Ms. Lonstein should take the time to carefully inspect all documentation to ensure its accuracy prior to submitting it to the Court. I have a very busy docket and spending extra time sifting through documents containing discrepancies, inaccuracies, and errors is an unwelcome burden.
Based upon the foregoing considerations, as well as the amount of time Ms. Lonstein has expended on substantially similar matters in previous cases, I recommend that her total hours be reduced from 7.25 hours to 4.75 hours, billed at a rate of $200.00 per hour. I find that the 2.0 hours billed for paralegal work is reasonable. Accordingly, I respectfully recommend that plaintiff be awarded a total of $1,100 for attorney's fees.
In Santacruz, 05-CV-0063, Ms. Lonstein billed a total of 4.5 hours in attorney's fees, including 1.5 hours for factual research and development, 1.75 hours for drafting the Complaint (which also included additional time spent on factual research), and 1.5 hours for drafting the Motion for Default. (See Attorney Affirmation in Support of Notice for Default J. dated June 21, 2005 ("Lonstein Affirm."), Ex. C.)
In Rosado, 05-CV-1037, Ms. Lonstein billed a total of 5.25 hours in attorney's fees, including 1.0 hours for factual research and development, 1.5 hours for drafting the Complaint, and 2.0 hours for drafting the Motion for Default. (See Attorney Aff. of Costs and Fees dated Aug. 30, 2005 ("Lonstein Aff."), ¶ 4.)
In Bello, 05-CV-1300, Ms. Lonstein billed a total of 4.5 hours in attorney's fees, including .5 hours for factual research and development, 1.5 hours for drafting the Complaint, and 2.0 hours for drafting the Motion for Default. (See Attorney Aff. of Fees and Costs dated Aug. 15, 2005 ("Lonstein Aff."), ¶ 3.)
2. Costs
Pursuant to 47 U.S.C. § 605(e)(3)(B)(iii), plaintiff seeks reimbursement for costs in the amount of $990.00, which includes $250.00 for the court filing fee, $390.00 for the cost of service of process, and $350.00 for investigative costs. (Lonstein Aff. ¶ 2.) The invoices, however, indicate that plaintiff expended $290.00 for service of process (Id., Ex. A) and $450.00 for investigative costs (Pl.'s Aff., Ex. C.), which amounts to the same $990.00. Accordingly, I respectfully recommend that plaintiff be awarded $990.00 for costs incurred in connection with this litigation.
III. CONCLUSION
For the above reasons, I respectfully recommend that a judgment be entered against defendants, jointly and severally, in the amount of $9,500 in statutory damages, plus a $20,000 increase for the willful violation of the statute, as well as $2,090 for attorney's fees and costs, for a total damages award of $31,590.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1) (2000); Fed.R.Civ.P. 72, 6(a), 6(e).
SO ORDERED.