J&J Sports Productions, Inc. v. 3705 Iberville LLC et al

Filing 70

ORDER AND REASONS - IT IS ORDERED that the 53 motion for summary judgment filed by Plaintiff J&J Productions is GRANTED IN PART as to the liability of Defendants 3705 Iberville LLC d/b/a Samuel's Blind Pelican a/k/a the Blind Pelican a/k/a Sa muels Blind Pelican Taco and Beer a/k/a Samuels Avenue Beer Pub and Steven Seeber and DENIED IN PART as to the liability of Defendant Karen Brown. IT IS FURTHER ORDERED that the motion for summary judgment filed by Plaintiff J&J Productions is DENIED IN PART as to the award of enhanced statutory damages. IT IS FURTHER ORDERED that the 54 motion for summary judgment filed by Defendants is DENIED. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-4316

3705 IBERVILLE LLC, ET AL.,
Defendants

SECTION: “E” (4)

ORDER AND REASONS
Before the Court are the following cross motions for summary judgment: (1)
Plaintiff’s motion for summary judgment, filed September 15, 2018 1 and (2) Defendants’
motion for partial summary judgment, filed September 18, 2018. 2 Both motions are
opposed. 3 Plaintiff filed a reply in support of its motion. 4
FACTUAL & PROCEDURAL BACKGROUND
This case involves the publication and broadcast of a television program, the
“Floyd Mayweather, Jr. v. Marcos Rene Maidana WBC Welterweight Championship Fight
Program,” (“Mayweather-Maidana Fight”) which aired on Saturday, May 3, 2014.
Plaintiff J&J Procudctions, Inc. (“J&J”) held the exclusive right to distribute and
broadcast nationwide the closed-circuit television signals for the event. 5 J&J is a
distributor of closed circuit pay-per view boxing and special events. 6 Plaintiff alleges
Defendants 3705 Iberville LLC d/b/a Samuel’s Blind Pelican a/k/a the Blind Pelican

R. Doc. 53.
R. Doc. 54.
3 R. Doc. 62 (Defendants’ opposition to Plaintiff’s motion for summary judgment); R. Doc. 59 (Plaintiff’s
opposition to Defendants’ motion for summary judgment); R. Docs. 66-67 (Plaintiff’s amended opposition).
4 R. Doc. 65.
5 R. Doc. 53-1 at 1; R. Doc. 62-1 at 2.
6 R. Doc. 1 at ¶ 10.
1

2

1

a/k/a Samuels Blind Pelican Taco and Beer a/k/a Samuels Avenue Beer Pub (“the LLC”),
Karen Brown, and Steven Seeber (“the Defendants”) broadcast the Mayweather-Maidana
Fight without the right to do so. 7 Defendants Seeber and Brown are members of the LLC
and managers of the establishment the Blind Pelican. 8
Plaintiff moved for summary judgment against all Defendants on the issues of
liability and the award of enhanced statutory damages. 9 Defendants admitted summary
judgment should be granted on the liability of the LLC and Defendant Seeber but opposed
the summary judgment motion on the liability of Defendant Brown and the amount of
damages. 10 Plaintiff filed a reply. 11 Defendants moved for summary judgment on the
issues of the enhanced statutory damages and the liability of Defendant Brown. 12 Plaintiff
opposed the motion on both issues. 13
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 14 “An issue is material if its resolution could affect the outcome of the action.” 15
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.” 16 All reasonable inferences are drawn in favor of the non-moving party.17

R. Doc. 1 at ¶¶ 13-14.
R. Doc. 53-1 at 2-3; R. Doc. 62-1 at 2.
9 R. Doc. 53.
10 R. Doc. 62 at 3.
11 R. Doc. 65.
12 R. Doc. 54.
13 R. Doc. 59; see also R. Docs 66-67 (Plaintiff’s amended opposition).
14 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.
15 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
16 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
17 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
7

8

2

There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 18
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
To satisfy Rule 56’s burden of production, the moving party must do one of two things:
“the moving party may submit affirmative evidence that negates an essential element of
the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must
be denied. If the moving party successfully carries this burden, the burden of production
then shifts to the non-moving party to direct the Court’s attention to something in the
pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 19
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim. 20 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary

18 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell

Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
19 Celotex, 477 U.S. at 322–24.
20 Id. at 331–32 (Brennan, J., dissenting).

3

Energy,

judgment must be denied. 21 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 22 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 23
LAW AND ANALYSIS
I.

Summary Judgment on Liability
J&J moves for summary judgment against all Defendants, arguing they are liable

under 47 U.S.C. §605 for the unauthorized publication or use of communications. 24 47
U.S.C. §605(a) imposes strict liability against a person who receives, assists in receiving,
transmits, or assists in transmitting any satellite communication and divulges or
publishes the contents through an unauthorized channel of transmission or reception. 25
“Any person aggrieved” by the unauthorized publication or use of communications may
bring a civil action in a United States district court. 26

See id. at 332.
Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
23 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
24 R. Doc. 53.
2547 U.S.C. §605(a).
26 47 U.S.C. §605(e)(3)(A).
21

22

4

Generally, the members of a limited liability company are immune from liability
for the limited liability company’s debts, obligations, and liabilities. 27 However, a member
of a limited liability company may be held liable in her individual capacity if she commits
fraud, breaches a professional duty, or performs a negligent or wrongful act against
another. 28 Specifically, to lose limited liability, the member must perform an act that
either is outside her capacity as a member or, if done as a member, “also violate(s) some
personal duty owed by the individual to the injured party.” 29 Defendants admit summary
judgment is proper as to the liability of the LLC and Steven Seeber 30 but move for
summary judgment arguing that Defendant Karen Brown is not personally liable. 31
a. Summary Judgment on the Liability of the LLC and Defendant
Steven Seeber Is Granted
It is undisputed that J&J held the exclusive right to transmit and broadcast the
closed-circuit signal for the Mayweather-Maidana Fight to commercial and business
entities. 32 It is undisputed that neither the LLC nor Defendants Seeber and Brown paid
for the right to receive and broadcast the Mayweather-Maidana Fight at the Blind
Pelican. 33 It is also undisputed that the LCC and Defendant Seeber knew the MayweatherMaidana Fight would be shown at the Blind Pelican. 34 It is undisputed that the fight was
aired on a large flat screen television on the premises of the Blind Pelican and that the

La. R.S. 12:1320.
Id.
29 See Petch v. Humble, 939 So.2d 499, 504 (La.App.2d Cir.2006); see also J&J Sports Prods., Inc. v.
Evolution Entm’t Grp., 2014 WL 3587370, at *2 (E.D. La. July 21, 2014) (Morgan, J.) (adopting the
reasoning of Joe Hand Promotions, Inc. v. Breaktime Bar, LLC, 2014 WL 1870633, at *2 (W.D. La. May 8,
2014) (finding the member of an LLC was not liable because she did not perform an act that violated some
personal duty owed to the injured party)).
30 R. Doc. 62 at 3.
31 R. Doc. 54.
32 R. Doc. 53-1 at 1; R. Doc. 62-1 at 2.
33 R. Doc. 53-1 at 3; R. Doc. 62-1 at 2.
34 R. Doc. 53-1 at 4; R. Doc. 62-1 at 2.
27

28

5

television signal for the fight was transmitted by DirecTV, Inc., which is a satellite
television signal carrier. 35 Further, Defendants admit summary judgment should be
granted as to the LLC and Defendant Seeber on the issue of liability. 36
J&J has demonstrated it is entitled to summary judgment on the issue of the
liability of the LLC and Steven Seeber because they received or assisted in receiving the
fight through an unauthorized channel of satellite reception. 37 Because Seeber committed
a wrongful act, he is personally liable. 38 Since there is no genuine dispute of material fact
and J&J has demonstrated it is entitled to judgment as a matter of law, Plaintiff’s motion
for summary judgment 39 is granted on the liability of the LLC and Steven Seeber.
b. Summary Ludgment on the Personal Liability of Defendant
Karen Brown Is Denied
The parties dispute whether Karen Brown is personally liable for the LLC’s
unauthorized publication or use of the Mayweather-Maidana Fight. Both J&J and Brown
have moved for summary judgment on the issue of Defendant Brown’s liability. 40 There
are material facts in dispute with respect to whether Defendant Brown breached some
personal duty owed to J&J or committed a wrongful act against J&J such that she is
personally liable. It is undisputed that Karen Brown is a member of the LLC and a
manager of the Blind Pelican. 41 It is also undisputed that Karen Brown was not aware of
the means of transmission of the signal for the Mayweather-Maidana Fight, was not aware
of how much was paid for the TV signal, and did not personally set up the TV screen or

R. Doc. 53-1 at 3-4; R. Doc. 62-1 at 2.
R. Doc. 62 at 3.
3747 U.S.C. §605(a).
38 See La. R.S. 12:1320.
39 R. Doc. 53; R. Doc. 62.
40 R. Doc. 53; R. Doc. 54.
41 R. Doc. 53-1 at 3; R. Doc. 62-1 at 2.
35

36

6

projection equipment or control the equipment at the time in question. 42 However, the
parties dispute whether Karen Brown knew J&J’s program was going to be shown on the
Blind Pelican’s premises on May 3, 2014 43 and whether Karen Brown authorized any
piracy of the Mayweather-Maidana Fight. 44 The parties also dispute Brown’s level of
involvement in the day to day operations of the Blind Pelican. 45
Because there are material facts in dispute related to Defendant Brown’s personal
liability for the acts of the LLC, the cross summary judgment motions 46 are denied on the
liability of Defendant Brown.
II.

Summary Judgment on the Award of Enhanced Statutory Damages
Is Denied
J&J moves for summary judgment against all Defendants, arguing Defendants

should be assessed enhanced statutory damages for a willful violation of 47 U.S.C. § 605.47
Defendants move for summary judgment on the same issue, arguing the circumstances
surrounding the display of the Mayweather-Maidana Fight do not warrant an award of
enhanced statutory damages. 48
Under 47 U.S.C. § 605, a private party such as J&J may recover either its actual
damages or statutory damages, as well as full costs and reasonable attorneys' fees. 49 The
Court may in its discretion award statutory damages for each violation of § 605(a) in the
amount of $1,000 to $10,000, “as the court considers just.” 50 If the Court finds that “the
violation was committed willfully and for purposes of direct or indirect commercial
R. Doc. 54-7; R. Doc. 66 at 1.
R. Doc. 67 at 2.
44 R. Doc. 54-7 at 1; R. Doc. 66 at 1.
45 R. Doc. 67 at 1.
46 R. Doc. 52; R. Doc. 54.
47 R. Doc. 53.
48 R. Doc. 54.
49 47 U.S.C. § 605(e)(3).
50 47 U.S.C. § 605(e)(3)(C)(i)(II).
42
43

7

advantage or private financial gain,” the Court may “increase the award of damages . . .
by an amount of not more than $100,000 for each violation.” 51
In deciding whether enhanced statutory damages are warranted, courts consider
many factors, including “[1] the number of televisions on which the defendants broadcast
the program, [2] the food and beverages sold to customers, [3] whether there was a cover
charge, [4] whether it was broadcast in an urban area where the broadcast would have
had more than a minimal impact,” 52 [5] the number of violations committed by the
defendant, [6] the defendant’s unlawful monetary gains, and [7] whether the defendant
advertised for the event. 53
It is undisputed that one large flat screen television on the premises of the Blind
Pelican was on and tuned into the Mayweather-Maidana Fight and that approximately
twenty-one to twenty-seven people were present at the Blind Pelican during the fight. 54 It
is also undisputed that during the fight, the Blind Pelican sold food and alcoholic
beverages, 55 and that the Blind Pelican did not charge a premium for food and beverages
during the fight. 56 The parties do not dispute that the Blind Pelican did not require a cover
charge for admission during the Mayweather-Maidana Fight, nor do they dispute that the
LLC has never previously been accused of TV signal piracy prior to the alleged incident. 57
It is similarly undisputed that the population of New Orleans approaches 345,000

47 U.S.C. § 605(e)(3)(C)(ii).
J&J Sports Prods., Inc. v. Guiseppe’s Bistro, LLC, 2015 WL 1540364, at *5 (E.D. La. 2015) (citing Time
Warner Cable of N.Y.C. v. Taco Rápido Rest., 988 F.Supp. 107, 111–12 (E.D.N.Y.1997); Joe Hand
Promotions, Inc. v. Chios, Inc., 2012 WL 3069935, at *6 (S.D.Tex. July 27, 2012), aff'd, 544 F. App'x 444
(5th Cir.2013)).
53 Integrated Sports Media, Inc. v. El Guadalajara, Inc., 2011 WL 4434165, at *2 (E.D.N.Y. Aug. 30, 2011);
Joe Hand Promotions, Inc. v. Kaczmar, 2008 WL 4776365, *2 (N.D.Ill. Oct.29, 2008);
54 R. Doc. 53-1 at 4; R. Doc. 62-1 at 2; R. Doc. 54-7 at 2; R. Doc. 66 at 2.
55 R. Doc. 53-1 at 4-5; R. Doc. 62-1 at 2.
56 R. Doc. 54-7 at 2; R. Doc. 66 at 2.
57 R. Doc. 54-7 at 2; R. Doc. 66 at 2.
51

52

8

people. 58 However, the parties dispute whether the Blind Pelican advertised that it would
display the Mayweather-Maidana Fight. 59 The parties also dispute whether the LLC
engaged in sales or received profit attributable to the Mayweather-Maidana Fight. 60
Additionally, J&J argues that Defendants’ actions during litigation demonstrate a willful
violation. 61 J&J alleges the “elaborate effort by the defendants to hide the facts” suggests
that Defendants’ violation of 47 U.S.C. § 605 was willful. 62
The Court finds genuine issues of material fact exist as to whether “the violation
was committed willfully and for purposes of direct or indirect commercial advantage or
private financial gain.” 63 The alleged evasive measures by Defendants to avoid producing
evidence, the disputed fact of whether the Blind Pelican advertised that it would display
the fight, and the disputed fact of whether the LLC engaged in sales or received profit
attributable to the fight are genuine issues of material fact relating to the “willfulness” of
Defendants’ violation. Therefore, the cross motions for summary judgment 64 are denied
on the award of enhanced statutory damages.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for summary
judgment filed by Plaintiff J&J Productions is GRANTED IN PART as to the liability of
Defendants 3705 Iberville LLC d/b/a Samuel’s Blind Pelican a/k/a the Blind Pelican
a/k/a Samuels Blind Pelican Taco and Beer a/k/a Samuels Avenue Beer Pub and Steven
Seeber and DENIED IN PART as to the liability of Defendant Karen Brown.

R. Doc. 53-1 at 5; R. Doc. 62-1 at 2.
R. Doc. 54-7; R. Doc. 66 at 2.
60 R. Doc. 53-1 at 2; R. Doc. 66 at 6.
61 R. Doc. 65 at 6.
62 Id.; R. Doc. 67.
63 47 U.S.C. § 605(e)(3)(C)(ii).
64 R. Doc. 53; R. Doc. 54.
58
59

9

IT IS FURTHER ORDERED that the motion for summary judgment filed by
Plaintiff J&J Productions is DENIED IN PART as to the award of enhanced statutory
damages.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
Defendants is DENIED.
New Orleans, Louisiana, this 18th day of October, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

10