J & J SPORTS PRODUCTIONS, INC. v. CARRANZA, et al

Filing 31

ORDER on Motions for Summary Judgment: J & J Sports's motion for summary judgment (Dkt. 25) is GRANTED, and defendants' motion for summary judgment (Dkt. 29) is DENIED. J & J Sports's conversion claim is DISMI SSED with prejudice because J & J Sports has requested final judgment but has not addressed its conversion claim. A separate judgment will be entered in favor of J & J Sports and against both defendants in the amount of $4400.00. J & J Sports may file any request for costs and fees as provided by Local Rule 54-1. See Order for additional information. Signed by Magistrate Judge Debra McVicker Lynch on 3/27/2015. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
vs.
LOYDA CARRANZA and
CARRANZA, INC.,
Defendants.

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No. 1:13-cv-01467-DML-TWP

Order on Motions for Summary Judgment
Plaintiff J & J Sports Productions, Inc. (J & J Sports) brought this action
against defendants Carranza, Inc. d/b/a Los Chilaquiles (“Los Chilaquiles”) and its
principal and sole shareholder, Loyda Carranza, alleging the defendants’ illegal
exhibition of a pay-per-view boxing match at Los Chilaquiles, a restaurant owned
and operated by Carranza, Inc. J & J Sports seeks summary judgment against both
Los Chilaquiles and Loyda Carranza. (Dkt. 25) In response, the defendants filed
their own motion for summary judgment (Dkt. 29) in which they (1) concede Los
Chilaquiles is liable, (2) request a judgment that Loyda Carranza is not liable, and
(3) contend that only minimal damages should be awarded.1

The defendants denominate their filing a motion for summary judgment, but
except to the extent it asks for judgment in Mr. Carranza’s favor, it is in the nature
of a response in opposition to J & J Sports’s motion. J & J Sports correctly points
out that the filing does not comply with the requirements of Local Rule 56-1, but the
court under these circumstances will exercise its discretion to rule on the merits.
See S.D. Ind. L.R. 56-1(l). The significance of the defendants’ procedural vehicle for
responding to J & J Sports’s motion for summary judgment is the defendants’
acknowledgement that all the issues in this case (liability and damages) can be
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Undisputed Facts
The evidentiary materials submitted by the parties establish the following
undisputed facts.2
J & J Sports owns the exclusive commercial distribution rights to Star Power:
Floyd Maywether, Jr. v. Victor Ortiz Championship Fight Program (the “Program”).
The Program was broadcast nationwide on Saturday, September 17, 2011.
(Gagliardi Aff., Dkt. 25-1, ¶ 3)
On September 17, the Program was exhibited at Los Chilaquiles after hours
to a crowd of 37 or 38 people after the restaurant had closed. (Davis Aff., Dkt. 27-1,
p. 2) Mr. Carranza is an officer and sole shareholder of Carranza, Inc. (Los
Chilaquiles). Mr. Carranza had the right and ability to supervise the activities of
Los Chilaquiles on the night of the fight. (See Dkt. 28-1.) Mr. Carranza did not pay
a commercial licensing fee to the plaintiff, nor did he otherwise have permission to
broadcast the Program at his commercial establishment. The commercial licensing
fee to broadcast the Program for an establishment the size of Los Chilaquiles was
$2,200. (Gagliardi Aff., Dkt. 25-1, ¶¶ 7-8)

determined on the basis of the parties’ summary judgment submissions. J & J
Sports has taken this position too, as explained in section A. of the Analysis. See
Dkt. 25-2.
Other than challenging the defendants’ procedural compliance with the local
rule and the personal knowledge of their affiant on one fact (see note 3 infra), J & J
Sports does not dispute the defendants’ version of the facts, and indeed must accept
that version for purposes of its motion for summary judgment.
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According to Mr. Carranza’s affidavit, the restaurant closed at 9:00 p.m. on
the evening the Program aired. The sign and registers were turned off, and no
money exchanged hands after 9:00 p.m. Mr. Carranza had agreed to host a
birthday party at Los Chilaquiles after hours for his nephew and a friend. They
invited more friends to watch the fight at the restaurant after closing. (Carranza
Aff., Dkt. 29, ¶¶ 3-8) The Program was purchased through Mr. Carranza’s
residential satellite (Directv) account and his nephew brought a receiver to the
restaurant to view the fight. (See Dkt. 28-1, p. 5; 28-2, p. 8.) There was no
advertising to the public that the Program would be shown at the restaurant.
At 11:55 p.m., an investigator hired by the plaintiff, Teresa Davis, entered
Los Chilaquiles and observed the Program being shown. She counted the number of
patrons inside the restaurant at 37 or 38. (Davis Aff., Dkt. 27-1, p. 2) She was not
charged a cover fee to enter.
Mr. Carranza claims that Ms. Davis was the only person in the restaurant
during the fight unknown to himself, Carlos, or his friends.3 Ms. Davis was told
that the gathering was a private event, but she insisted on staying for a while. Ms.
Davis attempted to order a drink but was told that no money was being accepted for
food or drinks. After her insistence to purchase a drink, she was given a free one.
She was eventually asked to leave and did so. Her visit lasted between fifteen and

J & J Sports challenges this assertion in Mr. Carranza’s affidavit as not
grounded in his personal knowledge. Mr. Carranza has attested to his personal
knowledge of all the matters in his affidavit, and whether that particular
attestation is indeed true need not be decided here because that fact is not material
to the court’s determination of the questions presented.
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twenty minutes. Mr. Carranza had never shown a fight in the restaurant before
this occasion and has not shown a fight since. (Carranza Aff., Dkt. 29, ¶¶ 10-11)
As a result of the alleged piracy, J & J Sports filed a complaint against the
defendants, claiming violations under the Cable Communications Policy Act
(CCPA), particularly of 47 U.S.C. § 605 and § 553, as well as a state law claim of
conversion. Plaintiff asks for maximum statutory damages, enhanced damages, and
attorney’s fees and costs.
The defendants admit the liability of Los Chilaquiles for the violation of
section 605, but they deny that Mr. Carranza can be held individually liable under
the statute. Defendants further contend that J & J Sports is entitled only to
minimum damages because Los Chilaquiles’s violation of section 605 was not
committed willfully for financial gain.
Analysis
A. Conversion Claim
As a preliminary matter, the court notes that J & J Sports’s complaint
includes a tort claim for conversion, and it seeks a final judgment for damages in
connection with its summary judgment motion. (See Proposed Judgment, Dkt. 252.) But its motion and brief do not mention this claim, so it “fails absent a
developed analysis of the conversion issue.” J & J Sports Productions, Inc. v. Zarco,
2013 WL 4829222 at *4 (S.D. Ind. Sept. 9, 2013) (citing Puffer v. Allstate Ins. Co.,
675 F.3d 709, 718 (7th Cir. 2012) (“Perfunctory and undeveloped arguments, and
arguments that are unsupported by pertinent authority are waived.”)).

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B. Statutory Liability Generally
J & J Sports alleges violations of 47 U.S.C. § 605 and § 553. It correctly
notes, however, that it may not recover under both statutes, as they target two
different types of piracy. United States v. Norris, 88 F.3d 462, 468-69 (7th Cir. 1996).
Section 605 governs the interception of cable television through the air, while
section 553 governs interception of cable television via a wired cable network. Id.
Los Chilaquiles admits it obtained the Program through a satellite provider,
Directv, and J & J Sports agrees that section 605 therefore governs in this case.
That statute in relevant part states:
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. No person having received any intercepted radio
communication or having become acquainted with the contents, substance,
purport, effect, or meaning of such communication (or any part thereof)
knowing that such communication was intercepted, shall divulge or publish
the existence, contents, substance, purport, effect, or meaning of such
communication (or any part thereof) or 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). J & J Sports must demonstrate that a defendant unlawfully
exhibited, published, received, or divulged the privileged communication. Id.
Section 605 is a strict liability statute, as the parties agree, and whether a
defendant acted knowingly or not is relevant only to the question of damages. Id.
See also J & J Sports Productions, Inc. v. Delgado, 2012 WL 371630 at *4 (E.D. Cal.

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Feb. 3, 2012) (whether the defendant acted knowingly is irrelevant for determining
liability).
The defendants admit liability for the violation of § 605 with regards to Los
Chilaquiles and accede to the court to entering judgment against the corporation.
The court is therefore left only with the questions of Mr. Carranza’s individual
liability and damages.
C. Mr. Carranza’s Individual Liability
The parties have devoted significant attention in their summary judgment
briefs to whether Mr. Carranza can be vicariously liable for Los Chilaquiles’s
interception of the fight.4 These arguments miss the mark. Under the plain
language of section 605: “No person not being authorized by the sender shall
intercept any radio communication and divulge or publish the existence, contents,
substance . . . of such intercepted communication to any person.” 47 U.S.C. § 605(a)
(emphasis added). The undisputed facts here demonstrate that notwithstanding

A number of courts have addressed the question of when a person can be
vicariously liable for the conduct of others under section 605. That analysis has its
genesis in a Second Circuit Court of Appeals decision in the context of the Copyright
Act, Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 955
(2d Cir. 1997). The Softel inquiry for vicarious liability depends on whether an
individual had “a right and ability to supervise the violations and that he had a
strong financial interest in such activities.” See, e.g., J & J Sports Productions v.
Ribeiro, 562 F. Supp. 2d 498, 501 (S.D.N.Y. 2008). Other courts have questioned
whether this Copyright Act test should be extended to the Cable Communications
Policy Act. See J & J Sports Productions v. Torres, 2009 WL 1774268, at *4 (M.D.
Fla. June 22, 2009).
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involvement by his nephew Carlos, Mr. Carranza himself was also a person who
intercepted the communication and exhibited it at his restaurant.
Mr. Carranza agreed to host the party. (Carranza Aff., Dkt. 29, ¶ 8) He
purchased the Program on his own residential account. Id. ¶ 7. He was present at
the restaurant during and after Ms. Davis made her visit. Id. ¶ 12. In contrast to
the facts of some of the cases Mr. Carranza cites, he was directly involved in
purchasing and exhibiting the Program.5
For these reasons, the parties’ discussion of vicarious liability (based on
factors developed under copyright infringement statutes) is not pertinent; Mr.
Carranza’s liability under section 605 is direct. J & J Sports is therefore entitled to
judgment as a matter of law against Mr. Carranza, as well as against Los
Chilaquiles.
D. Statutory Damages
Under section 605, a plaintiff may recover actual or statutory damages. 47
U.S.C. § 605(e)(3)(C)(i)(II). J & J Sports has requested statutory damages, which
range from $1,000 to a maximum of $10,000, as the court considers just. Id. J & J
Sports also seeks enhanced damages, which will be discussed below, that permit an
increase in damages up to $100,000 under § 605(e)(3)(C)(ii). The court also notes
that, while the defendants do not request it, section 605 allows for minimum
damages: “In any case where the court finds that the violator was not aware and

Mr. Carranza, however, was indisputably acting as an agent of Los
Chilaquiles, making Los Chilaquiles liable too.
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had no reason to believe that his acts constituted a violation of this section, the
court in its discretion may reduce the award of damages to a sum of not less than
$250.” 47 U.S.C. § 605(e)(3)(C)(iii).
J & J Sports requests maximum statutory damages of $10,000. Los
Chilaquiles argues that “minimal damages” are appropriate and that enhanced
damages are not warranted. For his part, Mr. Carranza simply argues that he has
no liability at all and was not aware of the violation, arguments the court has
rejected in its liability analysis. The court will consider them on the question of
damages, however.
There is little guidance in setting statutory damages under section 605, but
courts have considerable discretion on this matter. J & J Sports Productions, Inc. v.
McCausland, 2012 WL 113786 (S.D. Ind. Jan. 13, 2012). Some courts use a formula
based on the number of patrons present, Joe Hand Promotions, Inc. v. L.A. Moon
LLC, 2013 WL 633572 (W.D. Wis. Feb. 20, 2013), while others award a flat sum per
violation. McCausland, 2012 WL 113786 at *3. J & J Sports has asked the court to
follow the reasoning in McCausland and use the flat sum approach, taking into
account the goal of specific and general deterrence in the damage award.
In McCausland, the defendant defaulted on the allegations that he showed a
fight in violation of section 605 to 12-17 people during normal business hours. Id. at
*2-3. The court found that a damage award based on the limited number of patrons
who viewed the fight would send a “comparatively weak deterrent signal.” Id. at *3.
The court chose to impose the maximum statutory damages award of $10,000. Id.

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But this decision is not particularly instructive because the court merely granted
the plaintiff’s damage request after the defendant failed to respond.
The court does agree with J & J Sports, however, that an award at the low
end of the range, or one approximating the licensing fee that should have been paid,
does not further the goals of deterrence—either as to the defendants specifically or
would-be offenders generally. See id.
J & J Sports established that the fee for Los Chilaquiles to broadcast the
Program legally would have been $2200. The court also takes into consideration
that Los Chilaquiles did not use the Program to reap any direct gain, as it did not
collect a cover charge nor payment for food and drinks. See J & J Sports v. Zarco,
2013 WL 4829222 at *3-4 (S.D. Ind. Sept. 9, 2013). In Zarco, a bartender at a
restaurant broadcasted a fight after the restaurant had closed. Id. at *1. The
bartender and one friend were the only people in the restaurant other than the
investigator sent by J & J Sports. Id. No customers were in the restaurant and
there were no advertisements for the exhibition of the fight. Id. J & J Sports asked
for the maximum $10,000 in statutory damages, but the court stated: “Given that
the restaurant was closed, there were three people watching the program on one
television, and no flyers publicizing the event, a more modest award is appropriate.”
Id. at *3. After a damages hearing, the court awarded statutory damages in the
amount of $2,249.95 plus costs and fees.
Under all these circumstances, the court determines that statutory damages
in the amount of $4,400 (twice the fee) are appropriate.

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E. Enhanced Damages
J & J Sports also requests enhanced damages under section 605(e)(3)(C)(ii),
which states in relevant part:
In any case in which the court finds that the violation was committed
willfully and for purposes of direct or indirect commercial advantage or
private financial gain, the court in its discretion may increase the award of
damages, whether actual or statutory, by an amount of not more than
$100,000 for each violation of subsection (a) of this section.
47 U.S.C.A. § 605(e)(3)(C)(ii). The Eleventh Circuit has used the Supreme Court’s
definition of “willful” in connection with this provision to mean showing “disregard
for the governing statute and an indifference to its requirements.” Cable/Home
Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 851 (11th Cir.
1990) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 127 (1985)). No
Seventh Circuit decisions guide the enhanced damages inquiry, but district courts
have looked to a range of factors, including: “(1) the number of violations;
(2) defendant’s unlawful monetary gains; (3) plaintiff’s actual damages; (4) whether
defendant advertised for the event; and (5) whether the defendant collected a cover
charge on the night of the event.” McCausland, 2012 WL 113787 at *4; see also
Kingvision Pay-Per-View Ltd. v. Rodriguez, 2003 WL 548891 at *2 (S.D.N.Y. Feb.
25, 2003). Courts also must consider deterrence in their award, but should not
impose a penalty so severe that it puts the defendant out of business. McCausland,
2012 WL 113787 at *4; see also Garden City Boxing Club, Inc. v. Polanco, 2006 WL
305458 at *5 (S.D.N.Y. Feb. 7, 2006).

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The defendants argue that enhanced damages are inappropriate because no
money was made the night of the violation. They contend that they were not aware
that their actions constituted a violation and that it certainly was not for purposes
of direct or indirect commercial advantage or private gain. J & J Sports contends
that, at minimum, there was an indirect commercial advantage gained by exposing
37-38 people to the restaurant and advertising it as a place to come in the future. J
& J Sports cites Joe Hand Promotions, Inc. v. Wing Spot Chicken & Waffles, 920 F.
Supp.2d 659 (E.D. Va. 2013), in support of its argument that the act of showing the
Program, even without charging for it, constitutes a willful violation for commercial
advantage and private gain. The violation in Wing Spot, however, occurred during
regular business hours with approximately 40 paying customers viewing the fight.
Id. at 664. No similar commercial advantage is established by the facts of this case.
The facts here more closely resemble the facts in J & J Sports v. Pombo, 984
F.Supp. 2d 1042 (E.D. Cal. 2013), in which enhanced damages were not assessed.
Having considered the facts presented here and the factors courts have
considered, the court declines to make any award of enhanced damages.
F. Costs and Fees
Finally, section 605 provides that a court “shall direct the recovery of full
costs, including awarding reasonable attorneys' fees to an aggrieved party who
prevails.” 47 U.S.C. § 605(e)(3)(B)(iii). As the prevailing party, J & J Sports is
entitled to an award of costs and fees. It must file its petition for them as provided
by Local Rule 54-1. The defendants must file any response to the petition within 21

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days thereafter, and the parties are encouraged to use this period to attempt to
reach agreement as to amount.
Conclusion
J & J Sports’s motion for summary judgment (Dkt. 25) is GRANTED, and
defendants’ motion for summary judgment (Dkt. 29) is DENIED as set forth above.
J & J Sports’s conversion claim is DISMISSED with prejudice because J & J Sports
has requested final judgment but has not addressed its conversion claim. A
separate judgment will be entered in favor of J & J Sports and against both
defendants in the amount of $4400.00. J & J Sports may file any request for costs
and fees as provided by Local Rule 54-1.
So ORDERED.
Date: March 27, 2015
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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