LLC v. DRG SINY BBQ (2023)

REPORT AND RECOMMENDATION

Plaintiff Zuffa, LLC d/b/a Ultimate Fighting Championship (“UFC”) filed this action on June 2, 2022 against Miriam Mindy Paz (“Paz”) and DRG SINY South, Inc. d/b/a Daddy O's BBQ (“Daddy O's”), pursuant to the Federal Communications Act of 1934 (“FCA”), as amended, 47 U.S.C. §§ 553 and 605, and the Copyright Act, 17 U.S.C. § 501, et seq. Dkt. No. 1 ¶¶ 1, 26–27, 33–34, 43. On February 15, 2023, UFC filed an Amended Complaint adding Gregory Fosdal (“Fosdal”) as a Defendant.¹ Dkt. No. 17.

Currently pending before this Court, on a December 11, 2023 referral from the Honorable Orelia E. Merchant, United States District Judge, is UFC's second motion for default judgment. See Dkt. No. 24; see also Dec. 11, 2023 Referral Order.

In light of UFC's failure to comply with Local Civil Rule 55.2(b), and for the reasons set forth below, the Court respectfully recommends denying UFC's motion for default judgment without prejudice, with leave to renew against Daddy O's upon curing the deficiencies detailed herein. This Court sua sponte respectfully recommends that the Amended Complaint be dismissed against Paz and Fosdal with prejudice.

I. Background

A. Factual Allegations

The following facts are taken from the Amended Complaint, UFC's motion, and the attachments filed in support of UFC's motion; the facts are assumed to be true for the purposes of this motion. See Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *1 (E.D.N.Y. Sept. 29, 2023) (citing Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 188 (2d Cir. 2015)).

UFC is a Nevada-based corporation that owns the UFC 270 Broadcast aired on January 22, 2022, which included a heavyweight championship match between Francis Ngannou and Ciryl Gane, as well as all undercard matches (the “Broadcast”). Dkt. No. 17 ¶¶ 5–6, 17. As the copyright holder, UFC had rights to the Broadcast's distribution and the licensing to commercial establishments for exhibition. Dkt. No. 17 ¶ 38. Daddy O's is one such commercial establishment (id. ¶ 12), located at 185 Bricktown Way, Staten Island, New York (id. ¶ 13). UFC alleges that Daddy O's did not pay the proper licensing fees or secure the necessary agreement for commercial exhibition of the Broadcast (id. ¶ 22) but nevertheless advertised the Broadcast on its Facebook and Instagram pages (id. ¶ 16) and exhibited the Broadcast to its patrons on January 22, 2022 (id. ¶ 40).

UFC contends that “[u]pon information belief,” Defendants Paz and Fosdal served as “the officers, directors, shareholders, and/or principals” of Daddy O's (id. ¶ 8); had “supervisory capacity and control” of activities therein (id. ¶ 9); maintained “close control over the internal operating procedures and employment practices” on the night of the Broadcast (id. ¶ 11); and “received a financial benefit” from that night's operations (id. ¶ 10).

B. Procedural History

UFC commenced this action on June 2, 2022. See generally Dkt. No. 1. Paz was served with the Summons and Complaint on June 7, 2022, through personal delivery at her place of residence, 51 Rankin Avenue, Troy, New York.² Dkt. No. 9; Dkt. No. 1 ¶ 7. Daddy O's was served with the Summons and Complaint on June 9, 2022, through delivery to an authorized agent at the New York Secretary of State. Dkt. No. 8. On June 29, 2022, UFC requested a certificate of default after Defendants failed to answer or otherwise defend against the Complaint. Dkt. No. 10. The Clerk of the Court entered default on July 6, 2022. Dkt. No. 11. Shortly thereafter, UFC filed a motion for default judgment seeking damages for violations of 47 U.S.C. § 605 and 17 U.S.C. § 501. Dkt. No. 13. UFC's motion was referred to the Honorable Judge Ramon E. Reyes, Jr., then-United States Magistrate Judge, for a report and recommendation. See Aug. 26, 2022 Dkt. Order. On February 2, 2023, Judge Reyes issued a report and recommendation in which he recommended that UFC's “Motion for Default Judgment be denied without prejudice as to Daddy O's for failure to comply with Local Civil Rule 55.2 and dismissed with respect to Paz for failure to establish individual liability.” Dkt. No. 13 (“Judge Reyes's Report and Recommendation”).

Thereafter, on February 13, 2023, UFC sought leave to file an amended complaint. Dkt. No. 15. The Court denied UFC's motion because, under Fed. R. Civ. P. 15(a)(1), UFC could amend its pleading as a matter of course and without leave of Court. See Feb. 14, 2023 Dkt. Order. UFC filed an Amended Complaint on February 15, 2023. Dkt. No. 17. The Amended Complaint adds Fosdal as a defendant but otherwise contains substantially similar allegations to those alleged in the Complaint. Compare Dkt. No. 17 with Dkt. No. 1. On February 16, 2023, the Court denied UFC's first motion for default judgment as moot. See Feb. 16, 2023 Dkt. Order (citing Allstate Ins. Co. v. Yadgarov, No. 11-CV-6187 (PKC) (VMS), 2014 WL 860019, at *8 & n.11 (E.D.N.Y. Mar. 5, 2014) (“[M]ultiple courts agree ․ that once the amended complaint becomes the operative complaint, a motion for default judgment made on a prior pleading should be denied” as moot.) (collecting cases); Vasquez v. Young Chow Garden, Inc., No. 17-CV-5605 (PGG), 2018 WL 11452581, at *1 (S.D.N.Y. Nov. 16, 2018) (“ ‘If, ․after a default has been entered against a defendant, a plaintiff files an amended complaint which becomes operative, the entry of default becomes moot,’ and a motion for default judgment based on that default must be denied as moot.”)).

On March 11, 2023, Fosdal was served with the Summons and Amended Complaint through delivery to his place of residence, 28 Oak Lane, Staten Island, New York 10312, and by mailing a copy to his residence. Dkt. No. 19; Dkt. No. 17 ¶ 7. On May 30, 2023, UFC requested a certificate of default after Defendants failed to answer or otherwise defend against the Amended Complaint. Dkt. No. 21. The Clerk of Court entered default on June 7, 2023. Dkt. No. 22.

On July 28, 2023, UFC filed a second motion for default judgment, seeking damages for violations of 47 U.S.C. §§ 553, 605 and 17 U.S.C. § 501. Dkt. No. 24. According to the certificate of service (Dkt. No. 26), UFC served Defendants with the motion by: (1) mailing a copy to Daddy O's at its business address, 185 Bricktown Way, Staten Island, New York 10309; (2) mailing a copy to Paz at her residential address, 51 Rankin Avenue, Apt. 3, Troy, New York 12180; and (3) mailing a copy to Fosdal at his residential address, 28 Oak Lane, Staten Island, New York 10312. On December 11, 2023, UFC's motion was referred to the undersigned for a report and recommendation. See Dec. 11, 2023 Referral Order.

II. Standard for Default Judgment

“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). At the first step, the Clerk of Court enters a party's default after an affidavit or other evidence shows that the “party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a); see Esquivel, 2023 WL 6338666, at *3 (“when a party uses an affidavit or other proof to show that a party has ‘failed to plead or otherwise defend’ against an action, the clerk shall enter a default.” (citing Fed. R. Civ. P. 55(a)). “If a claim is for ‘a sum certain or a sum that can be made certain by computation,’ the clerk can enter judgment.” Id. (citing Fed. R. Civ. P. 55(b)(1)).

At the second step, and “[i]n all other cases, the party must apply to the court for a default judgment.” Id. (citing Fed. R. Civ. P. 55(b)(2)). To “enter or effectuate judgment” the Court is empowered to: “(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed. R. Civ. P. 55(b)(2).

The Second Circuit “generally disfavor[s]” default judgment and has repeatedly expressed a “preference for resolving disputes on the merits.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Nevertheless, in evaluating a motion for default judgment, a court accepts as true the plaintiff's well-pleaded factual allegations, except those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); see also Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). A plaintiff bears the burden of alleging “specific facts,” rather than “mere labels and conclusions” or a “formulaic recitation of the elements,” so that a court may infer a defendant's liability. Cardoza v. Mango King Farmers Mkt. Corp., No. 14-CV-3314 (SJ) (RER), 2015 WL 5561033, at *3 (E.D.N.Y. Sept. 1, 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), report and recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015)).

The decision to grant or deny a default motion is “left to the sound discretion of a district court.” Esquivel, 2023 WL 6338666, at *3 (quoting Shah v. New York State Dep't of Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)). A court “possesses significant discretion” in granting a motion for default judgment, “including [determining] whether the grounds for default are clearly established.” Chen, 2023 WL 2583856, at *7 (quotations and citation omitted).

III. Discussion

A. Plaintiff's motion for default judgment should be denied

“A motion for default judgment will not be granted unless the party making the motion adheres to all of the applicable procedural rules.” Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Engineers, Loc. 15, 15A, 15C & 15D, AFL-CIO v. Allstate Mapping & Layout, LLC, No. 22-CV-1831 (PKC) (TAM), 2023 WL 1475389, at *1 (E.D.N.Y. Feb. 2, 2023) (quoting Century Surety Company v. Adweek, No. 16-CV-335 (ENV) (PK), 2018 WL 10466835, at *1 (E.D.N.Y. Jan. 9, 2018)). “[L]ocal rules have the force of law, as long as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution.” See Fin. Servs. Vehicle Tr. v. Osmanaj, No. 22-CV-7491 (RPK) (CLP), 2023 WL 7000935, at *2 (E.D.N.Y. Aug. 15, 2023) (citations and quotation marks omitted).

Here, in support of its default judgment motion, UFC submits: (1) a memorandum of law (Dkt. No. 24-2);³ (2) an affidavit from Riché McKnight, the General Counsel of UFC, with exhibits (Dkt. Nos. 24-5, 25); (3) an affirmation from UFC's counsel explaining UFC's request for attorneys’ fees and costs (Dkt. No. 24-6); and (4) a proposed form of default judgment (Dkt. No. 24-9). UFC also filed a certificate of service. See Dkt. No. 26.

UFC's submission, however, is facially deficient because UFC did not attach the certificate of default and the Amended Complaint, as required under Local Civil Rule 55.2(b). Under Local Civil Rule 55.2(b), a party requesting default judgment must attach to their application: “(1) the Clerk's certificate of default, (2) a copy of the claim to which no response has been made, and (3) a proposed form of default judgment.” Loc. Civ. R. 55.2(b). “Local Rule 55.2 is strictly construed, and failure to comply with the rule is alone a basis to deny the motion for default judgment.” Santacruz v. Blok Chocolatier LLC, No. 19-CV-544 (EK) (SJB), 2021 WL 4341103, at *2 (E.D.N.Y. June 23, 2021), report and recommendation adopted, 2021 WL 4340963 (E.D.N.Y. Sept. 23, 2021); see United States v. Hamilton, No. 18-CV-2011 (ADS) (SIL), 2019 WL 6830318, at *2-*3 (E.D.N.Y. Nov. 26, 2019) (recommending denial of motion for default judgment because plaintiff failed to follow Local Rule 55.2(c) and noting that “courts in the Eastern and Southern Districts regularly deny such motions when strict procedural compliance is lacking”), report and recommendation adopted, 2019 WL 6828276 (Dec. 13, 2019); Assets Recovery Ctr. Invs., LLC v. Smith, No. 13-CV-253 (CBA) (CLP), 2015 WL 13741871, at *7 (E.D.N.Y. Sept. 22, 2015) (denying motion for default judgment for failure to mail defendants the documents enumerated in Local Rule 55.2(b)).

Here, although UFC attached a proposed form of default judgment to the motion (Dkt. 24-9), UFC violated Local Civil Rule 55.2(b) by failing to append to its motion a copy of the claim to which no response was made (the Amended Complaint) or the Clerk's certificate of default. Notably, UFC previously violated this rule by failing to attach the certificate of default and the Complaint to its first motion for default judgment; Judge Reyes's Report and Recommendation recommended that said motion be denied on these grounds. See Dkt. No. 13, at 5-6, 11.

Consequently, UFC's motion for default judgment is deficient on its face and should be denied. See, e.g., Yoon v. Toothsavers Dental Lab'y, Inc., No. 19-CV-2283 (ERK) (VMS), 2020 WL 13580466, at *8 (E.D.N.Y. June 22, 2020) (recommending denial of default judgment motion where plaintiff's submission in support of motion for default judgment did not include “a copy of the Clerk's certificate of default, a copy of the complaint, or a proposed form of default judgment”), report and recommendation adopted, July 27, 2020 Dkt. Order; Apex Moptedar. Co. v. Furniture, Inc., No. 11-CV-5365 (ENV) (RER), 2012 WL 1901266, at *1 (E.D.N.Y. May 18, 2012) (denying default judgment for, inter alia, plaintiff's failure to submit copy of certificate of default). “As harsh at it may seem,” courts in this district “have repeatedly” denied motions for default judgment based on a movant's failure to adhere to Local Civil Rule 55.2(b). Lugo v. Allstate Ins. Co., No. 19-CV-7150 (JMA) (JMW), 2022 WL 3928727, at *5 (E.D.N.Y. Aug. 10, 2022) (recommending plaintiff's motion for default judgment be denied where “notably absent from Plaintiff's motion [was] the Clerk's certificate of default, a copy of the Complaint, and a proposed form of default judgment”), report and recommendation adopted, 2022 WL 3914981 (E.D.N.Y. Aug. 31, 2022); see also Badalamenti v. Country Imported Car Corp., No. 10-CV-4993 (SJF) (GRB), 2012 WL 601481, at *2 (E.D.N.Y. Feb. 22, 2012) (“[T]he rules require that the Clerk's certificate of default be appended to the motion,” and failure to comply with “[t]his technicality alone supports [a] denial of [the] plaintiff's motion for a default judgment.”).

Indeed, “[t]he fact that the certificates of default and the Complaint ‘may be found electronically, scattered on the docket, does not absolve [plaintiff] of [her] obligation to collect and append copies to [her] moving papers.’ ” Koutlakis v. C P Grill Corp., No. 19-CV-1669 (DLI) (CLP), 2023 WL 7000847, at *3 (E.D.N.Y. July 12, 2023), report and recommendation adopted, Aug. 25, 2023 Dkt. Order; see also Yoon, 2020 WL 13580466, at *8 (stating “[i]t is not enough that the complaint or Clerk's certificate of default can be found interspersed throughout the docket”); Rhoden v. Mittal, No. 18-CV-6613 (LDH) (SJB), 2020 WL 13664671, at *2 (E.D.N.Y. Jan. 3, 2020) (“Failure to comply with the requirements Local Rule 55.2 is a basis to deny a motion for default judgment”).

Accordingly, this Court respectfully recommends that UFC's motion for default judgment be denied for failure to comply with the requirements of Local Civil Rule 55.2(b).⁴

B. The claims against Paz and Fosdal should be dismissed for failure to establish liability 5

As discussed above, in light of UFC's failure to comply with the Local Civil Rules, this Court respectfully recommends that the Court deny UFC's motion for default judgment. The Court also sua sponte respectfully recommends—consistent with Judge Reyes's Report and Recommendation—that the Amended Complaint, as currently drafted, fails to establish Paz and Fosdal's individual liability under 47 U.S.C. §§ 605 and 503 and 17 U.S.C. § 501, thereby rendering UFC's claims against Paz and Fosdal subject to dismissal.

1. UFC cannot establish Paz and Fosdal's individual liability under 47 U.S.C. §§ 605 and 503

UFC's Amended Complaint alleges violations of two sections of the FCA: section 605 and section 553. Section 605(a) 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, 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.

47 U.S.C. § 605(a). Section 553(a) similarly 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.

47 U.S.C. § 553(a).

For individual liability to attach under §§ 605(a) or 553(a), the plaintiff must establish that the defendant was individually liable through “contributory infringement” or “vicarious liability.” J & J Sports Prods., Inc. v. Abdelraouf, No. 18-CV-2547 (ARR) (VMS), 2018 WL 7916309, at *6-7 (E.D.N.Y. Nov. 21, 2018), report and recommendation adopted, 2019 WL 457719 (E.D.N.Y. Feb. 5, 2019). Contributory infringement arises when the individual “authorized the violations,” and vicarious liability arises when the individual “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. (quotations and citation omitted).

To establish liability, “the plaintiff must allege concrete details about the [corporate officer's] role in the activity and the amount or source of revenue potentially stemming from the activity.” Innovative Sports Mgmt., Inc. v. Mejia, No. 20-CV-2943 (PKC) (RER), 2021 WL 7709510, at *4 (E.D.N.Y. Aug. 3, 2021) (citations omitted), report and recommendation adopted, Aug. 26, 2021 Dkt. Order; see, e.g., Joe Hand Promotions, Inc. v. Bernal, No. 18-CV-85 (ILG) (SJB), 2019 WL 885930, at *3 (E.D.N.Y. Feb. 22, 2019) (finding liability when the plaintiff alleged that the defendant “exercised control over the premises, was present during the exhibition, and authorized the exhibition”); J & J Sports Prods., Inc. v. Vergara, No. 19-CV-2382 (FB) (VMS), 2020 WL 1034393, at *11 (E.D.N.Y. Feb. 6, 2020) (finding defendant was not individually liable when there was no “no evidence that [he] had knowledge of, or was present for, intercepting or broadcasting the Program”), report and recommendation adopted, 2020 WL 1031756 (E.D.N.Y. Mar. 3, 2020). The mere fact of being an officer, director, or other principal of a corporation does not guarantee liability for a corporation's wrongdoing. See J & J Sports Prods., Inc. v. James, No. 17-CV-5359 (NGG) (ST), 2018 WL 3850731, at *5 (E.D.N.Y. July 25, 2018).

Here, the Amended Complaint does not contain any specific allegations to establish that either Paz or Fosdal authorized the alleged violation, as required to establish their contributory liability, or that they had supervisory capacity over the infringing activities and an obvious and direct financial interest in such activities, as required to establish vicarious liability. See J & J Sports Prods., 2018 WL 7916309, at *6-7. The Amended Complaint merely alleges that Paz and Fosdal “were the officers, directors, shareholders, and/or principals” of Daddy O's (Dkt. 17 ¶ 8); “were the individuals with supervisory capacity and control over the activities” at Daddy O's (id. ¶ 9); “received a financial benefit” from Daddy O's operations (id. ¶ 10); and had “close control over the internal operating procedures and employment practices” of Daddy O's (id. ¶ 11). Courts in this District “have found such allegations to be insufficient, especially in light of the ‘cut and paste’ approach in which many of Plaintiff's pleadings have been drafted without particularized details about the defendants.” J & J Sports Prods., 2018 WL 7916309, at *7 (collecting cases).

Thus, to establish either Paz or Fosdal's contributory or vicarious liability, UFC had to allege “nonformulaic facts” to establish their “right and ability to supervise” or their “participation in or knowledge of the activities,” as well as their “financial interest in the unlawful broadcast.” Id.; see J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469, 473 (E.D.N.Y. 2009) (declining to find individual liability where the complaint alleged that the defendant was the owner of the bar and “made no allegation that [defendant] was present for the violation, that he authorized or controlled it, or that he reaped commercial profit from it”). Because the Amended Complaint does not allege any “nonformulaic facts” to establish Paz or Fosdal's individual liability under the FCA, UFC has not stated a claim against either defendant.

Notably, as set forth in Judge Reyes's Report and Recommendation, the Court recommended that UFC's Complaint be dismissed for failure to establish Paz's contributory or vicarious liability under the FCA. See Dkt. No. 13, at 9-10. Like the Amended Complaint, the Complaint simply alleged formulaic facts about Paz's role as an “officer, director, shareholder, principal, manager and/or member’ of Daddy O's” (Dkt. No. 1 ¶ 8); her “supervisory capacity and control over the activities” in Daddy O's (id. ¶ 9); her receipt of a “financial benefit from the operations of [Daddy O's], on January 22, 2022” (id. ¶ 10); and her “close control over the internal operating procedures and employment practices” that same night (id. ¶ 11). The Court found that these allegations “lack[ed] the concrete details needed to establish [Paz's] liability.” Dkt. No. 13, at 10. The Court further found that UFC failed to establish that Paz had an “obvious and direct financial interest” in the infringing activities because the “site inspection report and affidavit prepared by an auditor after visiting Daddy O's on the night of the Broadcast [was] silent as to how many patrons were in the establishment that night, whether that number differed from those regularly present at Daddy O's, and whether the patrons made any purchases․ Furthermore, pleadings indicate clearly that Daddy O's did not charge an entrance fee.” Id. at 10 (citing Dkt. Nos. 1-1, 12-7). As the Court explained, “[w]hen faced with similar allegations (and similar silence), courts in this District have concluded that individual defendants were not vicariously liable because plaintiffs failed to establish their financial interest in the violating activity.” Id. (collecting cases).

UFC opted not to correct these deficiencies in the Amended Complaint. Rather, UFC submitted a substantially similar pleading that, effectively, only added Fosdal as an additional defendant. The Amended Complaint does not add any new details to establish Paz or Fosdal's role in, or authorization of, the unauthorized activity, let alone that they had knowledge of, or were even present for, the broadcast. The Amended Complaint also does not identify any commercial profits gained by Paz or Fosdal.

In short, the Amended Complaint, like the Complaint, merely relies on Paz and Fosdal's status as an officer, director, or other principal of Daddy O's, which is insufficient to hold them liable for Daddy O's alleged wrongdoing. See J & J Sports Prods., Inc. v. James, No. 17-CV-5359 (NGG) (ST), 2018 WL 3850731, at *5 (E.D.N.Y. July 25, 2018) (declining to find contributory liability when “plaintiff fail[ed] to offer any evidence that [a corporate officer] authorized—or even had the power to authorize—[an] illegal broadcast”), report and recommendation adopted, 2018 WL 3848921 (Aug. 13, 2018).

2. UFC cannot establish Paz and Fosdal's individual liability under 17 U.S.C. § 501

UFC also contends that Defendants violated Section 501 of the Copyright Act. Dkt. No. 17 ¶¶ 36-45. Much like UFC's FCA claims, “[t]he Copyright Act, 17 U.S.C. §§ 101, et. seq., ‘frames’ individual liability ‘as contributory and vicarious infringement.’ ” Innovative Sports Mgmt. v. Zarate, No. 20-CV-405 (KAM) (LB), 2021 WL 4268070, at *4 (E.D.N.Y. Aug. 5, 2021) (quoting Poparic v. Jugo Shop, No. 08-CV-2081 (KAM) (JO), 2010 WL 1260598, at *8 (E.D.N.Y. Mar. 31, 2010)), report and recommendation adopted, 2021 WL 3855593 (E.D.N.Y. Aug. 30, 2021). Here too, in order to establish Paz or Fosdal's individual liability for contributory infringement, UFC would have to show that it “authorized the [infringing] use.” Softel, Inc. v. Dragon Med. & Sci. Commc'ns, Inc., 118 F.3d 955, 971 (2d Cir. 1997). And to establish Paz or Fosdal's vicarious liability, UFC had to show that they had a “right and ability to supervise [that] coalesce[d] with an obvious and direct financial interest in the exploitation of copyrighted materials.” Id. (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963)).

For the same reasons that the Amended Complaint does not establish Paz or Fosdal's individual liability under the FCA, the Amended Complaint also does not establish their liability under the Copyright Act.

And, as the Court noted in Judge Reyes's Report and Recommendation, “[b]ecause Plaintiff was ‘on notice of the inadequacy of its pleadings based on the myriad of cases in this District ․ that address this issue,’ and which are grounded in similar fact patterns and parties, ‘[P]laintiff should not be afforded an opportunity to cure the deficiencies of which it was or should have been aware.’ ” Dkt. No. 13 (citing Joe Hand Promotions, Inc. v. Rosero, No. 19-CV-792 (KAM) (RLM), 2020 WL 2572328, at *6 (E.D.N.Y. Feb. 18, 2020), report and recommendation adopted, Mar. 5, 2020 Dkt. Order (dismissing claims against individual defendant with prejudice when plaintiff failed to establish contributory infringement or vicarious liability); Joe Hand Promotions, Inc. v. Skaf, No. 19-CV-3391 (LDH) (RLM), 2020 WL 3035351, at *7 (E.D.N.Y. Mar. 17, 2020) (same), report and recommendation adopted, Nov. 25, 2020 Order).

Accordingly, because UFC has not established Paz or Fosdal's contributory or vicarious liability, this Court respectfully recommends that the claims against Paz and Fosdal be dismissed.

IV. Conclusion

Accordingly, the Court respectfully recommends that UFC's motion for default judgment be denied without prejudice and with leave to renew, addressing the deficiencies discussed above, and in compliance with the Court's Local Civil Rules.⁶

A copy of this Report and Recommendation is being electronically served on counsel. This Court directs UFC's counsel to serve a copy of this Report and Recommendation by overnight mail and first-class mail to Defendants and to file proof of service on ECF by December 27, 2023.

Copies shall be served at the following addresses:

DRG SINY South, Inc. d/b/a Daddy O's BBQ

185 Bricktown Way

Staten Island, New York 10309

Miriam Mindy Paz

51 Rankin Avenue, Apt. 3

Troy, New York 12180

Gregory Fosdal

28 Oak Lane

Staten Island, New York 10312

Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Merchant. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky v. United States Dep't of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. Nov. 15, 2023); see also Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

FOOTNOTES

1.   Defendants Daddy O's, Paz, and Fosdal are collectively referred to herein as “Defendants.”

2.   The Affidavit of Service (Dkt. No. 9) indicates that Paz was provided with an “amended complaint”; however, on the date of service, UFC had only filed a single, unamended Complaint.

3.   UFC's memorandum of law in support of its motion for default judgment is filed with what appear to be visible track-changed redline edits. See Dkt. No. 24-2.

4.   Additionally, UFC's notice of motion does not identify the rule(s) or statute(s) that UFC is seeking relief under in violation of Local Civil Rule 7.1. Instead, UFC's notice of motion states that it “moves this Court for Default Judgment against all defendants for failing to plead or otherwise appear in the above action.” Dkt. No. 24. Under Local Civil Rule 7.1, a motion for default judgment must consist of a notice of motion, a memorandum of law, and supporting affidavits and exhibits containing any factual information and portions of the record necessary for the decision of the motion. Loc. Civ. R. 7.1(a). The notice of motion must “specify the applicable rules or statutes pursuant to which the motion is brought, and shall specify the relief sought by the motion.” Loc. Civ. R. 7.1(a)(1). The failure to comply with Local Civil Rule 7.1 is enough, on its own, for a court to deny the motion. See, e.g., A.M. v. City of New York, No. 21-CV-5191 (ENV) (CLP), 2022 WL 20472225, at *5 (E.D.N.Y. Aug. 8, 2022) (recommending denial of motion for failure to comply with Loc. Civ. R. 7.1), report and recommendation adopted, 2023 WL 4446660 (E.D.N.Y. July 11, 2023); see also Perez v. Escobar Constr., Inc., No. 20-CV-2010 (LTS) (GWG), 2022 WL 19560924, at *1 (S.D.N.Y. Sept. 19, 2022) (“[P]laintiffs’ notice of motion [ ] fails to ‘specify the applicable rules or statutes pursuant to which the motion is brought’ as required by Local Civil Rule 7.1(a)(1), and thus would have to be denied for this reason alone.”); Citibank, N.A. v. Super Sayin’ Publ'g, LLC, No. 14-CV-5841 (SHS) (KNF), 2017 WL 462601, at *2 (S.D.N.Y. Jan. 17, 2017) (denying motion for failure to comply with Local Civil Rule 7.1).Courts, however, “can disregard the failure to file a notice of motion or other papers”; “[t]his most commonly occurs when another document in the filing provides the necessary information, for example, when ‘a memorandum of law and supporting documents that allow the Court to consider the proposed motion’ have been filed, either with the original motion or as a supplement. Dominguez v. Hernandez, No. 21-CV-7051 (MKB) (VMS), 2023 WL 2575224, at *15 (E.D.N.Y. Feb. 22, 2023), report and recommendation adopted, 2023 WL 2574876 (E.D.N.Y. Mar. 20, 2023). As UFC has filed a memorandum of law attached to its notice of motion, UFC has likely fairly and adequately apprised Defendants of the nature and basis of its motion. Cf. Haua v. Prodigy Network, LLC, No. 20-CV-2318 (PGG) (KNF), 2021 WL 4993678, at *1 (S.D.N.Y. Sept. 2, 2021), report and recommendation adopted, 2021 WL 4478737 (S.D.N.Y. Sept. 29, 2021) (denying a motion for attorneys’ fees that did “not comply with Local Civil Rule 7.1(a) because the plaintiffs’ notice of motion fails to ‘specify the applicable rules or statutes pursuant to which the motion is brought.’ ”) (citing Local Civil Rule 7.1(a)(1)).

6.   UFC is advised that this Report and Recommendation may not contain an exhaustive recitation of the deficiencies in UFC's moving papers. UFC is cautioned to re-examine all of the rules applicable to default judgment motions and to comply strictly with each of them.

JOSEPH A. MARUTOLLO United States Magistrate Judge