G&G Closed-Circuit Events, LLC. v. Castillo et al

Filing 398

MOTION by Defendants Jaime F. Castillo, Maria A. Castillo, El Bajio Enterprises, Inc. for judgment Fed. R. Civ. P. 50(a) (Clay, Lisa)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS EASTERN DIVISION
G & G CLOSED CIRCUIT EVENTS, LLC,
Plaintiff,

Court No. 1:14-cv-2073

v.
Judge Edmond E. Chang
JAIME F. CASTILLO, ET AL.,
Defendants.
Defendants’ Federal Rule of Civil Procedure 50(a)
Motion for Judgment as a Matter of Law
Defendants, Jaime Castillo, Maria Castillo, and El Bajio Enterprises, Inc. d/b/a La Pena
Restaurante, by and through their attorneys, Karen J. Doran and Lisa L. Clay, ask this Court to
enter judgement as a matter of law against the Plaintiff, G&G Closed-Circuit Events, Inc., and in
support thereof state as follows:
Rule 50 of the Federal Rules of Civil Procedure allows the Court to remove cases or
issues from the jury’s consideration when the facts are sufficiently clear that the law requires a
particular result. Weisgram v. Marley Co., 528 U.S. 982 (1999). Such is the case here, on two
issues. First, Plaintiff has failed to establish, by a preponderance of the evidence, the existence of
the alleged distribution rights. Second, Plaintiff has failed to establish, by a preponderance of the
evidence, that it is entitled to enhanced damages. To the contrary, Defendants are entitled, by a
preponderance of the evidence, to a reduction in statutory damages pursuant to 47 U.S.C. § 605
(e)(3)(C)(iii).
Issue One: Plaintiff’s alleged exclusive commercial distribution rights.
To win its case, the Plaintiff must first prove that it had the exclusive commercial
distribution rights to the Trout/Alvarez Fight Program on April 20, 2013. (“Elements of the

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Claim,” Final Jury Instructions, p. 18.) The Plaintiff’s case to the jury is “that it entered into an
agreement with Showtime Networks, Inc. to be the exclusive nationwide commercial distributor
of a boxing program.” (“Plaintiff’s Claim, Final Jury Instructions, p. 17.) The only evidence the
Plaintiff offered at trial to substantiate the existence of an agreement with Showtime was the
testimony of its president Nicolas Gagliardi; his sworn statements attesting to that agreement
(Plaintiff’s Exhibit 15)1; a copy of a check made out to Showtime (Plaintiff’s Exhibit 13); a copy
of an unsigned written contract with DirecTV (Plaintiff’s Exhibit 16); and an undated rate card
purporting to list the pricing for commercial establishments to air the Program (Plaintiff’s
Exhibit 17).
Black’s Law Dictionary defines an agreement in law as follows:
[A] concord of understanding and intention between two or more parties with
respect to the effect upon their relative rights and duties, of certain past or future
acts or performances. The consent of two or more persons concurring respecting
the transmissions of some property, right, or benefits, with the view of contracting
an obligation, a mutual obligation.
A manifestation of mutual assent on the part of two or more persons as to the
substance of a contract. Restatement, Second, Contracts, § 3.
The act of two or more persons, who unite in expressing a mutual and common
purpose, with the view of altering their rights and obligations. The union of two or
more minds in a thing done or to be done; a mutual assent to do a thing. A
compact between parties who are thereby subjected to the obligation or to whom
the contemplated right is thereby secured.
Plaintiff did not present the jury with any evidence of Showtime’s understanding and
intention with respect to the effect upon its rights and duties relating to the Program. The jury has
no evidence of Showtime’s consent respecting the transmission of its rights to the Program.
There is only evidence of a manifestation of assent on the part of one – not two – parties. There

Plaintiff did not offer Mr. Gagliardi’s second affidavit as evidence to the jury of G&G’s alleged rights from
Showtime, though Defendants did offer it into evidence. (Defendant’s Exhibit 29, p. 3-4.)
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is no evidence that Showtime acted in any way to express a mutual and common purpose with
G&G with a view of altering its rights and obligations. The jury does not have any evidence that
Showtime’s “mind” was united with G&G’s concerning the Program, or that it assented to do
anything. Therefore, the Plaintiff has failed to meet its burden of proof that it had the exclusive
commercial distribution rights it claimed to have.
Issue Two: Willfulness2
In order to establish entitlement to enhanced damages, Plaintiff must prove, by a
preponderance of the evidence, that Defendants acted, when unlawfully showing the Program,
(1) willfully and (b) for purposes of direct or indirect commercial advantage or private financial
gain in unlawfully showing the Program. To act “willfully” means that the Defendants acted
voluntarily, knew that the law prohibited them from showing the Program, and acted with the
purpose of violating the law. United States v. Cross, 816 F.2d 297, 301 (7th Cir. 1987); United
States v. Anderson, 741 F.3d 938, 948 fn 8 (9th Cir. 2013). Plaintiff has elicited no testimony and
presented no documentary evidence that Defendants knew that the law prohibited them from
showing the Program or acted with the purpose of violating the law. Defendants are, therefore,
entitled to judgment as a matter of law as to this issue.
Specifically, the only evidence presented at trial is as follows: (a) absolute and categorial
denials from both Jaime and Maria that (1) they knew they had residential programming; (2) they
knew the law prohibited them from showing the Program; (3) they had any knowledge that the
Program was a pay-per-view event; and (4) they had any knowledge that turning the channel to
the Program would trigger viewing of a pay-per-view event; (5) their purpose in maintaining a
residential account unknowingly was done for the purpose of violating the law; (6) their purpose

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If the Court grants Defendants’ Motion regarding Issue One, Issue Two is moot.

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in showing the Program was to violate the law; and (b) documentary evidence that they had
residential programming in their apartment (D. Ex. 15).
Importantly, judgment as a matter of law as to this issue does not require a determination
of whether Aaron Lockner asked that the Program to be shown. Even assuming, arguendo, that
the jury were to find both that Plaintiff had the exclusive commercial distribution rights to the
Program and that the Defendants were not entitled to show the Program, the Plaintiff has not and
cannot meet its burden as to willfulness. This is because Plaintiff failed to (a) elicit testimony
from Defendants on these issues; (2) present witnesses to rebut Jaime and Maria’s consistent
denials of knowledge and purposeful act(s); and/or (3) produce documentary evidence to rebut
the Castillo’s testimony and documents. This record is, therefore, absolutely void of any
evidence to support the preponderance standard required of Plaintiff. Judgment as a matter of
law should prevent the issue of enhanced damages from being considered by the jury.
For those same reasons, Defendants are therefore entitled to judgment as a matter of law
requiring reduction of any damages award pursuant to 47 U.S.C. § 605 (e)(3)(C)(iii). See, e.g.
Joe Hand Promotions, Inc. v. Zani, 11 cv 4319, 2013 U.S. Dist. LEXIS 144565 at *9 fn 2 (Oct 7,
2013); J&J Sports Prods. v. Dabrowski, 13 cv 5931, 2015 U.S. Dist. LEXIS 170991 at *17 (Dec.
22, 2015). Because Defendants’ burden of proof is even lower than that of Plaintiff, (they were
not aware and had no reason to believe their acts violated the law) the evidence above commands
judgment as a matter of law entitling Defendants to the safe harbor provisions of § 605.
WHEREFORE, Defendants respectfully request that this Honorable Court GRANT this
motion for judgment as a matter of law as to Issue One, or in the alternative, as to Issue Two, and
grant them any and all additional relief it deems just and equitable.

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Respectfully submitted:

/s/

Lisa L. Clay

/s/ Karen J. Doran

Attorney at Law
2100 Manchester Road, Suite 1612
Wheaton, Illinois 60187
630.456.4818
[e-mail]

Attorney at Law
2100 Manchester Road, Suite 1612
Wheaton, Illinois 60187
630.384.9367
[e-mail]

CERTIFICATE OF SERVICE
Lisa L. Clay, an attorney, certifies that on January 9, 2019 she served a copy of the foregoing
Defendants’ Federal Rule of Civil Procedure Rule 50(a) Motion for Judgment as a Matter
of Law by filing same via the ECF filing system, which will provide notice to all parties of
record.

/s/ Lisa L. Clay

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