J&J Sports Productions, Inc. v. Antojitos El Arriero, LLC et al
Filing
26
ORDER & REASONS denying 13 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 7/30/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.
CIVIL ACTION
v.
NO. 13-6532
ANTOJITOS EL ARRIERO, LLC, ET AL.
SECTION "F"
ORDER AND REASONS
Before
defendants
the
Court
Antojitos
El
is
a
motion
Arriero,
for
Raul
summary
Guijarro,
judgment
and
by
Veronica
Torres. For the reasons that follow, the defendants' motion is
DENIED.
Background
This litigation arises out of the alleged infringement upon
J&J Sports Productions, Inc.’s rights as the exclusive commercial
domestic distributor of a pay-per-view televised boxing program,
“Good v. Evil”: Angel Cotto v. Antonio Margarito WBA Super World
Light Middleweight Championship Fight Program, which aired on
Saturday, December 3, 2011. On December 1, 2013, J&J sued Antojitos
El Arriero, Raul Guijarro, and Veronica Torres. J&J alleges that
Antojitos El Arriero illegally and intentionally intercepted and
displayed this boxing program for commercial advantage and private
financial gain, in violation of 47 U.S.C. § 605(a). J&J seeks
damages and attorney’s fees pursuant to § 605(e)(3)(C)(ii) and
(e)(3)(B)(iii).
1
Antojitos El Arriero is located at 2633 Williams Boulevard,
Kenner, Jefferson Parish, Louisiana 70062. The plaintiff, J&J,
alleges that Guijarro and Torres, who are co-owners of Antojitos,
directed
employees
of
Antojitos
to
unlawfully
intercept
and
broadcast J&J’s boxing program inside Antojitos on December 3,
2011. Furthermore, J&J alleges that Antojitos publicized this
viewing event on facebook™.
An investigator, Will Bourne, said that he visited Antojito’s
on December 3, 2011 on J&J’s behalf. In his sworn affidavit, he
described
the
waitress
who
served
him,
the
decor
of
the
restaurant’s interior, and the broadcast of a pay-per-view boxing
event
in
which
Mike
Jones
defeated
Sebastian
Andres
Lujan.1
Although Bourne stated in this affidavit that the address of
Antojitos was 6233 Williams Boulevard, in a subsequent sworn
affidavit,
Bourne
explained
that
his
first
affidavit
had
inadvertently misstated the address, and that the address of the
building he actually entered was 2633 Williams Boulevard. Billie
Gautreaux, an employee of the Department of Inspection & Code
Enforcement for the City of Kenner, which issues addresses for the
City of Kenner, states in his affidavit that the address 6233
Williams Boulevard is non-existent.
The defendants now seek summary judgment.
1
J&J submits that this bout between Jones and Lujan was
an undercard bout on the main card of the “Good v. Evil” boxing
broadcast featuring Angel Cotto v. Antonio Margarito.
2
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine issue of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See
id.
Therefore,
"[i]f
the
evidence
is
merely
colorable, or is not significantly probative," summary judgment is
appropriate.
Id. at 249-50 (citations omitted).
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
3
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
Anderson, 477 U.S. at 255.
II. Law and Application
The defendants submit that there is no genuine dispute
regarding whether investigator Will Bourne entered Antojitos El
Arriero, located at 2633 Williams Boulevard, and whether he viewed
the boxing program “Good v. Evil” on December 3, 2011. They submit
that his own sworn affidavit clearly demonstrates that Bourne
entered
some
other
establishment
located
at
6233
Williams
Boulevard, and that he viewed another boxing program with Mike
Jones and Sebastian Andres Lujan.2 Evaluating the facts in the
light most favorable to the non-moving party, the Court cannot
agree that these assertions resolve any genuine issues of material
fact.
The defendants fail to acknowledge investigator Bourne’s
second sworn affidavit, in which he claims to correct the address
2
The defendants also seemingly raise additional defenses
in their “Affidavit of Facts,” arguing that the program was
properly purchased for private viewing, not advertised, and only
viewed in private. However, these contentions were not made in the
defendants’ argument section, the unsworn “Affidavit of Facts” does
not constitute competent evidence, and they are otherwise
unsupported by the record. See Martin, 819 F.2d at 549.
4
he misstated in his first affidavit. Moreover, their narrow focus
on the stated address of the establishment Bourne visited fails to
address the highly detailed description he gave of the building’s
interior. Considering the sworn affidavit of Billie Gautreaux,
which states that there is no such address of 6233 Williams
Boulevard, Kenner, Louisiana, it is plain to the Court that a
dispute as to the location visited by inspector Bourne does,
indeed, exist. Similarly, whether the fight between Mike Jones and
Sebastian Andres Lujan was an undercard bout on the main card
featuring Angel Cotto and Antonio Margarito is also an unresolved
issue of material fact. Summary judgment is inappropriate on this
record.
Accordingly, the defendants’ motion for summary judgment is
DENIED.
New Orleans, Louisiana, July 30, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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