J&J Sports Productions, Inc. v. Out In The Cold, Inc., et al
ORDER AND REASONS GRANTING 18 Motion for Summary Judgment as to defendant's liability. FURTHER ORDERED that the issue of damages, costs, and attorney's fees is hereby referred to the magistrate judge for a report and recommendation. Signed by Judge Martin L.C. Feldman on 2/19/2019. (NEF: Magistrate 5)(jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.
OUT IN THE COLD, INC. D.B.A.
PETE’S OUT IN THE COLD
ORDER AND REASONS
For the reasons that follow, the motion is GRANTED.
This lawsuit arises out of the interception and broadcast of
a pay-per-view boxing fight at a neighborhood bar in New Orleans,
J&J Sports Productions, Inc. is a closed-circuit distributor
of sports and entertainment programming.
In that capacity, J&J
purchased and retained the exclusive commercial exhibition rights
to “The Fight of the Century” (Manny Pacquiao vs. Floyd Mayweather,
Jr.), which was broadcast on May 2, 2015.
J&J also marketed and
granted broadcast rights in the program to a variety of commercial
establishments, in exchange for the payment of a sublicense fee.
Out in the Cold, Inc., doing business as Pete’s Out in the
Cold, is a Louisiana corporation owned and operated by Kevin Lee
and Gary Herty.
Pete’s Out in the Cold, in turn, operates a bar
located at 701 6th Street, New Orleans, Louisiana 70115.
2, 2015, a private investigator working for J&J visited Pete’s at
approximately 9:45 p.m.
The investigator observed that one of
three televisions in the establishment was turned on and tuned
into the fight.
He observed a scene with “Leo Santa Cruz in blue
trunks and Jose Cayetano in black and red trunks at 1:08 remaining
in the 9th round.”
The investigator also conducted three separate
headcounts which demonstrated the presence of about 18 patrons in
the bar. 1
It is undisputed that Pete’s was not granted a license
to receive the television signal for the program. 2
On April 28, 2018, J&J sued Pete’s Out in the Cold, Kevin
Lee, and Gary Herty, alleging that the defendants unlawfully
broadcast the Pacquiao-Mayweather fight without obtaining J&J’s
permission or paying J&J the requisite sublicense fee.
J&J was unable to serve the company’s owners, defendants Lee and
Herty were dismissed without prejudice on September 12, 2018.
As to the capacity of Pete’s, the investigator attests:
The capacity of this establishment is approximately 30
At the time of my appearance, I counted the
number of patrons three (3) separate times. The head
counts were 17, 17, 21.
2 According to the affidavit of Joseph Gagliardi, the President of
J&J Sports Productions, Inc., the “sublicense fee for the Program
was based on the capacity of the establishment and varies for each
event. For this Program, a commercial establishment with a maximum
fire code occupancy capacity of 100 persons, [sic] the sublicense
fee would have been $3,000.00.” Because Pete’s has a capacity of
no more than 100 patrons, it would have cost Pete’s $3,000 to
obtain a license to broadcast the Program.
now moves for summary judgment on the issues of liability and
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 dispute 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 Corp., 475 U.S. 574, 587 (1986).
dispute 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 mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.
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).
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
Hearsay evidence and
unsworn documents that cannot be presented in a form that would be
Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
scintilla of evidence.”
Hathaway v. Bazany, 507 F.3d 312, 319
(5th Cir. 2007) (internal quotation marks and citation omitted).
Ultimately, “[i]f the evidence is merely colorable . . . or is not
Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding
whether a fact issue exists, courts must view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party.
Scott v. Harris, 550 U.S. 372, 378 (2007).
the Court must “resolve factual controversies in favor of the
nonmoving party,” it must do so “only where there is an actual
controversy, that is, when both parties have submitted evidence of
Antoine v. First Student, Inc., 713 F.3d
824, 830 (5th Cir. 2013) (internal quotation marks and citation
J&J moves for summary judgment against Pete’s, arguing that
the defendant’s conduct is governed by 47 U.S.C. §§ 553 and 605
because Pete’s received the television transmission at issue by
way of cable and satellite signal. 3
Section 553(a)(1) provides a private right of action for the
service offered over a cable system.”
47 U.S.C. § 553(a)(1).
Similarly, § 605 prohibits the unauthorized receipt of radio or
47 U.S.C. § 605.
To prevail under
either § 553 or § 605, the plaintiff “need only show (1) that the
Event was shown in Defendants’ Establishment, (2) that the Event
Plaintiff was the exclusive licensee.”
G&G Closed Circuit Events
LLC v. Rivals Sports Grill LLC, 2014 U.S. Dist. LEXIS 5416, at *9
(W.D. La. Jan. 14, 2014) (quoting J&J Sports Prods., Inc. v. El
33, LLC, 2013 U.S. Dist. LEXIS 8006, at *3 (W.D. Tex. 2013)).
As a threshold matter, the defendant first contends that
Although Pete’s notes that it has propounded discovery
to the plaintiff, which is due on February 17, 2019, the defendant
Although Pete’s has not conceded that it received the television
program at issue by way of both cable and satellite signal, in
responding to interrogatories on August 31, 2018, Pete’s stated
that, on the night of the program, the business premises received
a “combination of satellite television and cable television.”
fails to point out just how such discovery would create a genuine
issue of material fact, or what it is even about.
defendant fails to satisfy the requirements of Federal Rule of
Civil Procedure 56(d) 4, the Court turns to the merits of J&J’s
evidence to establish that it had exclusive distribution rights to
Specifically, the plaintiff has introduced a copy of
the Closed-Circuit Television License Agreement, by which it was
granted the exclusive license to exhibit the May 2, 2015 fight.
And through the affidavit of its President, Joseph Gagliardi, J&J
has established that Pete’s never lawfully licensed the program
for distribution purposes.
Moreover, Pete’s does not dispute that
Federal Rule of Civil Procedure 56(d) permits a district court
to defer considering a pending motion for summary judgment “[i]f
a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition.” Rule 56(d) motions “are broadly favored and should
be liberally granted” because they “safeguard non-moving parties
from summary judgment motions that they cannot adequately oppose.”
Culwell v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006).
Nonetheless, the party seeking a continuance “may not simply
rely on vague assertions that additional discovery will produce
needed, but unspecified, facts.”
Raby v. Livingston, 600 F.3d
552, 561 (5th Cir. 2010) (quoting Sec. & Exch. Comm’n v. Spence &
Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980)). Instead, the
party must indicate (1) “why he needs additional discovery” and
(2) “how the additional discovery will create a genuine issue of
material fact.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1442
(5th Cir. 1993).
it failed to obtain authorization to receive the television signal
or that J&J is the exclusive licensee of the program.
demonstrate that the program “was actually shown” at Pete’s on the
night of May 2, 2015.
To substantiate its allegation that the
affidavit of Mike W. Aertker, a private investigator.
attests that he arrived at Pete’s on May 2, 2015 at approximately
9:45 p.m. and entered without paying a cover charge.
observed one of three televisions turned on and “showing [the]
Aerter also describes a particular scene that he observed
while inside the bar: “Leo Santa Cruz in blue trunks and Jose
Cayetano in black and red trunks at 1:08 remaining in the 9th round.
There was just a shot of Andre Agassi in the audience watching the
In its opposition papers, Pete’s contends that the private
investigator’s affidavit is not sufficient to demonstrate that the
program was actually broadcast on the business premises.
further submits that a video taken by the investigator “does not
conclusively show that Defendant in fact broadcast the Program,
which would be a material fact for trial.”
The Court is not
persuaded by the defendant’s attempt to manufacture a factual
Pete’s has introduced no evidence to challenge the
establish that Santa Cruz and Jose Cayetano were not, in fact,
featured in the program.
Accordingly, on this record, there is no
intercepted and broadcast the program, and liability has been
established under 47 U.S.C. §§ 553 or 605.
J&J Sports Prods.,
Inc. v. Mandell Family Ventures, L.L.C., 751 F.3d 346, 351 (5th
unauthorized interception of cable communications, whereas Section
605 prohibits the unauthorized receipt of radio or satellite
The issue of amount of damages, costs, and
attorney’s fees is hereby referred to the magistrate judge for a
report and recommendation.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the plaintiff’s motion for summary judgment is hereby GRANTED as
to defendant’s liability.
IT IS FURTHER ORDERED: that the issue
of damages, costs, and attorney’s fees is hereby referred to the
magistrate judge for a report and recommendation.
New Orleans, Louisiana, February 19, 2019
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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