Joe Hand Promotions, Inc. v. Alvarado et al

Filing 52

ORDER DENYING 44 Defendants' Motion for Attorney's Fees signed by District Judge Lawrence J. O'Neill on 7/11/2011. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,

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CASE NO. CV F 10-0907 LJO JLT

Plaintiffs,

ORDER ON ATTORNEY FEES MOTION
(Doc. 44.)

vs.
DAVID ALVARADO, et al.,

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Defendants.
/

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AND RELATED CROSS-ACTIONS.
___________________________________/

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INTRODUCTION

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Defendants David Alvarado and Linda Alvarado (the “Alvarados”) seek to recover $7,250

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attorney fees as prevailing parties after obtaining summary judgment on plaintiff Joe Hand Promotions,

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Inc.’s (“Joe Hand’s”) telecast piracy claims.1 Joe Hand responds that the Alvarados are not entitled to

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attorney fees under the legal authorities on which they rely. This Court considered the Alvarados’

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attorney fees motion on the record without a hearing, pursuant to Local Rule 230(g). For the reasons

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discussed below, this Court DENIES the Alvarados an attorney fees award.

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The Alvarados also sought $174.72 for photocopy, postage and facsimile costs. Joe Hand has paid the
Alvarados those costs which are no longer at issue.

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BACKGROUND

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Joe Hand held exclusive closed-circuit distribution rights to Ultimate Fighting Championship

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98: Rashad Evans v. Lyoto Machida (“program”), which was telecast nationally on May 23, 2009. Joe

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Hand claims that the program was unlawfully intercepted at Frankie’s Bar aka Patron’s Sports Bar in

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Madera. More specifically, Joe Hand claims the Alvarados and defendants Adolfo Ordaz, Jr., Susana

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Garcia and Andres Garcia (collectively the “Ordaz-Garcias”) unlawfully pirated the program to violate

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the Communications Act of 1934, 47 U.S.C. §§ 605, et seq.,2 the Cable & Television Consumer

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Protection and Competition Act of 1992, 47 U.S.C. §§ 553 et seq.,3 and California law. The Alvarados

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deny liability in that they did not own, operate or control the bar at the time of the program. The

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Alvarados claim that alleged wrongdoing is attributable to the Ordaz-Garcias, to whom the Alvarados

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leased the bar which the Ordaz-Garcias operated without the Alvarados’ involvement. This Court

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granted the Alvarados summary judgment on Joe Hand’s claims against them.

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On January 26, 2011, the Alvarados had made a $1,001 F.R.Civ.P. 68 offer to Joe Hand and

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which Joe Hand did not accept. The Alvarados seek to recover from Joe Hand $7,250 attorney fees as

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the prevailing parties on Joe Hand’s claims under F.R.Civ.P. 68 and federal communications statutes.

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DISCUSSION

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F.R.Civ.P. 68(d) addresses costs after an unaccepted offer of judgment: “If the judgment that the

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offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs

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incurred after the offer was made.” The “term ‘costs,’ as used in Rule 68, should be read to include

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attorney's fees where fees are authorized by the substantive statute at issue in the litigation.” Fulps v.

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City of Springfield, Tenn., 715 F.2d 1088, 1095 (6th Cir. 1983).

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47 U.S.C. §605(e)(3)(B)(iii) requires a court to “direct the recovery of full costs, including

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awarding reasonable attorneys' fees to an aggrieved party who prevails.” 47 U.S.C. § 553(c)(2)(C)

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permits a court to “direct the recovery of full costs, including awarding reasonable attorneys' fees to an

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47 U.S.C. § 605, et seq., prohibit the unauthorized use of wire or radio communications, including
interception and broadcast of pirated cable or broadcast programming.
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47 U.S.C. § 553, et seq., prohibit interception or reception of any communication service over a cable
system without authorization.

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aggrieved party who prevails.” An “aggrieved” party includes “any person with proprietary rights in

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the intercepted communication by wire or radio, including wholesale or retail distributors of satellite

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cable programming, and, in the case of a violation of paragraph (4) of subsection (e) of this section, shall

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also include any person engaged in the lawful manufacture, distribution, or sale of equipment

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necessary to authorize or receive satellite cable programming.” 47 U.S.C. § 605(d)(6) (bold added).

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The Alvarados argue that the federal communications statutes authorize attorney fees for them

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as prevailing parties. Joe Hand disagrees in that the Alvarados are not “aggrieved” parties under the

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federal communications statutes. Joe Hand argues that Congress did not intend that “any” prevailing

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party recover attorney fees based on its restricted definition of “aggrieved party.” As such, Joe Hand

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concludes that the Alvarados lack a statute authorizing attorney fees.

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Joe Hand further attacks the Alvarados reliance on F.R.Civ.P. 68(d), which Joe Hand contends

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has “no application if a defendant prevails outright.” Joe Hand is correct. As the U.S. Supreme Court

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explained, F.R.Civ.P. 68 “applies only to offers made by the defendant and only to judgments obtained

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by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained

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the judgment.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146 (1981). Moreover,

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the Alvarados’ point that Joe Hand may recover against the non-offeror Ordaz-Garcias is irrelevant. See

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Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 334 (5th Cir. 1995) (plaintiff’s recovery against

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non-offeror defendants “is irrelevant to the Rule 68 inquiry”).

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The Alvarados are defendants who prevailed on Joe Hand’s claims. F.R.Civ.P. 68 does not

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entitle them to recover attorney fees. The Alvarados are not “aggrieved” parties under the federal

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communications statutes, which provide them no source to recover attorney fees. The Alvarados are not

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entitled to recover attorney fees.

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CONCLUSION AND ORDER

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For the reasons discussed above, this Court DENIES the Alvarados an attorney fees award.

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IT IS SO ORDERED.

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Dated:
66h44d

July 11, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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