J&J Sports Productions, Inc. v. Madrid Night Club L.L.C. et al

Filing 27

RULING denying Plaintiff's 13 Motion for Summary Judgment, and denying Defendant's 19 Motion for Summary Judgment, except as to the Section 605 claim, which is GRANTED. Signed by Judge Shelly D. Dick on 3/21/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

J&J SPORTS PRODUCTIONS, INC.

CIVIL ACTION

VERSUS

15-617-SDD-EWD

MADRID NIGHT CLUB L.L.C.
f/k/a AUSTIN J’S ENTERPRISE, L.L.C.
AND GHOLAM R. OTADI
RULING
This matter is before the Court on cross Motions for Summary Judgment filed by
J&J Sports Productions, Inc. (“Plaintiff”),1 and Madrid Night Club L.L.C. f/k/a Austin J’s
Enterprise, L.L.C. and Gholam R. Otadi (“Defendants”).2 The Court has considered the
Oppositions filed by Defendants3 and Plaintiff,4 as well as the Plaintiff’s5 and Defendants’6
Replies in support of their respective motions. For the following reasons, the Defendants’
motion will be granted in part and denied in part, and Plaintiff’s motion will be denied.
I.

FACTUAL BACKGROUND7
Plaintiff claims that, on September 14, 2013, an investigator hired by Plaintiff

observed the live broadcast of “The One” Floyd Mayweather, Jr. v. Saul Alvarez WBC
Light Middleweight Championship Fight Program” (“the fight”) at Madrid Nightclub

1

Rec. Doc. 13.
Rec. Doc. 19.
3
Rec. Doc. 15
4
Rec. Doc. 22.
5
Rec. Doc. 21.
6
Rec. Doc. 23.
7
The Court bases the factual background on Rec. Docs. 1 and 19-4.
2

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(“Madrid”), a commercial establishment in Prairieville, Louisiana. Plaintiff alleges that it
had the “exclusive nationwide commercial distribution and broadcast” of the fight.8
Plaintiff further claims that Defendants, “with full knowledge that [the fight] was not to be
intercepted, received, published, divulged, displayed, and/or exhibited by commercial
entities…did unlawfully intercept, receive, publish, divulge, display and/or exhibit [the
fight.]”9 Plaintiff further alleges that the Defendants advertised their display of the fight by
neon sign and on Madrid’s Facebook page and charged a $5 admission fee to view the
fight. Mr. Otadi (“Otadi”), per Plaintiff, is liable as manager of Madrid.

According to

Plaintiff, Defendants’ actions constitute a violation of 47 U.S.C. § 605, 47 U.S.C. § 553,
18 U.S.C. § 2511 (1)(A)(5) and § 2520 (a), and La.C.C. Art. 2315.
Defendants do not dispute that the fight was shown at Madrid on September 14,
2013.

However, Defendants argue that they purchased a T.V. “business package”

service through EATEL, a cable service provider for Madrid, and paid EATEL a pay per
view fee to watch the fight. Defendants claim that EATEL mistakenly failed to place
Madrid in the hospitality category when Otadi ordered cable service for Madrid. Given
these facts, Defendants contend they should be able to take advantage of the safe-harbor
provision of 47 U.S.C. § 553.
Both parties have moved for summary judgment on the following claims: 47 U.S.C.
§ 605, 47 U.S.C. § 553, 18 U.S.C. § 2511 (1)(A)(5) and § 2520 (a) as well as La.C.C. Art.
2315.

8
9

Rec. Doc. 1, p. 8.
Id. at p. 9.

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II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment 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.”10 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”11 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”12 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”13 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”14
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”15 All reasonable factual
inferences are drawn in favor of the nonmoving party.16 However, “[t]he Court has no

10

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
12
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
13
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
14
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
15
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
16
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
11

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duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”17 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”18
B. Section 605
Plaintiff argues that Defendants’ actions violated 47 U.S.C. § 553 and 47 U.S.C. §
605. Defendants state: “Plaintiff concedes that this action is governed by 47 U.S.C.
Section 553 et seq. and not by 47 U.S.C. 605 et seq.”19 Indeed, Plaintiff’s Memorandum
in support of their Motion for Summary Judgment acknowledges that “[the fight] was
captured via cable television."20 The Fifth Circuit in J&J Sports Productions v. Mandell
Family Ventures unequivocally stated: “we now join the majority of circuits in holding that
section 605 does not encompass the conduct presented here: the receipt or interception
of communications by wire from a cable system.”21 As it is acknowledged by both Parties
that the fight was displayed at Madrid via a cable system, the Court applies Mandell to
the present case. Accordingly, Defendants’ motion as to 47 U.S.C. § 605 claim is
GRANTED, and Plaintiff’s motion as to 47 U.S.C. § 605 is DENIED. Plaintiff’s claims
under 47 U.S.C. § 605 are dismissed.

17

RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
19
Rec. Doc. 19-4, p. 9.
20
Rec Doc. 13-4, pp. 5-6.
21
751 F.3d 346, 351 (5th Cir. 2014).
18

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C. Section 553
Plaintiff argues that Defendants’ actions violated 47 U.S.C. § 553. Defendants, in
turn, argue that the safe harbor provision of Section 553 applies. Section 553(a)(1) states:
“No person shall intercept or receive or assist in intercepting or receiving any
communications service offered over a cable system, unless specifically authorized to do
so by a cable operator or as may otherwise be specifically authorized by law.”22 As the
Fifth Circuit succinctly held in Mandell, the safe harbor provision “precludes the imposition
of liability on the majority of cable recipients – customers of cable providers.”23 The
Mandell court further held, “in order for a cable customer to ensure that it is not criminally
or civilly liable under [Section 553], it need only receive authorization from a cable
operator for the cable services it receives.”24 Thus, if Defendants received authorization
from EATEL to receive the fight, per Mandell, Defendants would not be civilly liable to
Plaintiff for displaying the fight at Madrid.
Defendants argue that the evidence before the Court supports the application of
the safe harbor provision of Section 553 as articulated by the Fifth Circuit in Mandell. The
facts in the present case and Mandell differ on an important point – it was not argued in
Mandell that the Defendants mislead the cable provider regarding the type of business it
was operating. Here, Plaintiff argues that Defendants’ “ignorance of EATEL’s internal
procedures [in determining how EATEL classifies businesses] is feigned.”25 Defendants
counter that they “did obtain authority to show the program from EATEL and are,

22

47 U.S.C. § 553(a)(1)(2006).
Mandell, 751 F.3d at 348.
24
Id.
25
Rec. Doc. 22-1, p. 3.
23

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therefore, not liable at all.”26 If Defendants mislead EATEL in the type of business they
were operating at Madrid, they could not obtain authority from EATEL to broadcast the
fight, and thus find no protection under the safe harbor provision of Section 553.
Alternatively, if Defendants did not mislead EATEL on the type of business they were
operating at Madrid, they properly obtained consent to show the fight and may take
advantage of the safe harbor provision of Section 553.
Defendants maintain that EATEL erred in not placing Madrid in the hospitality
category.27

According to Defendants, “EATEL had no procedures for determining

whether the business remained the same after the initial instillation, and it has no records
of anyone ever asking Mr. Otadi what kinds of business were conducted at either
location.”28 Defendants further argue that Otadi’s only option “to avoid the problem that
arose would have been to aggressively disclose to EATEL what business category
EATEL should have used for its internal monitoring process.”29 According to EATEL,
what “should have been done here is when the business changed its purpose or function
and it was a bar and restaurant, then that would have changed the type of service that
was delivered and it changes the fee structure as well, then this wouldn’t have
occurred…”30 Defendants counter that they never changed the purpose of their business.
Defendants originally had service at Southbay Autoplex, another business owned by
Otadi, and, at a later date, called to have service provided to Madrid, a nightclub adjacent
to Southbay Autoplex – essentially arguing that there were always two businesses, not

26

Rec. Doc. 15, p. 10.
See Rec. Doc. 19-4, p. 2.
28
Rec. Doc. 19-4, p. 4.
29
Id. at pp. 7-8.
30
Rec. Doc. 19-7, pp. 32-33.
27

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one business that changed its purpose.31
Considering the presence of conflicting testimony of the EATEL representative, a
credibility issue is before the Court. Credibility determinations are improper on summary
judgment. As the Supreme Court held in Anderson v. Liberty Lobby, Inc. “the trial judge
shall then grant summary judgment if there is no genuine issue as to any material fact
and if they moving party is entitled to judgment as a matter of law.”32 Whether Defendants
failed to properly disclose the nature of their business to EATEL is a genuine issue of
material fact that is contested by both Parties. Because “reasonable minds could differ
as to the import of the evidence,”33 Plaintiff’s and Defendants’ Motion for Summary
Judgment on Plaintiff’s Section 553 claim is DENIED. For the same reasons, the Motions
for Summary Judgment on the issue of Otadi and Austin J’s liability under Section 553
and enhanced damages under Section 553 is also DENIED.
D. Section 2511 (1)(a)(5) and Section 2520 (a)
Plaintiff appears to move for relief on all the claims asserted, including claims
under 18 U.S.C. § 2511(1)(a)(5) and § 2520(a); however, Plaintiff provides no argument
or evidence in support of these claims. Having offered no evidence of or jurisprudence
in support of these claims, Plaintiff’s Motion for Summary Judgment on Section
2511(1)(a)(5) and Section 2520(a) is DENIED.
To the extent that Defendants’ Motion for Summary Judgment may be construed
as seeking summary judgment on Plaintiff’s Section 2511(1)(a)(5) and Section 2520(a)
claims, the motion is likewise DENIED as Defendants have offered no argument or

31

Rec. Doc. 19-4, p. 8.
477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
33
Id. at 250.
32

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evidence in support of this claim.
E. Plaintiff’s Louisiana Conversion Claim
Plaintiffs’ claim under Louisiana Civil Code article 2315 necessarily turns on
whether the Defendants’ violated Section 553. If the Defendants did not violate federal
law in intercepting the fight, logically they could not have committed the tort of conversion
under Louisiana law.

Because Plaintiff’s conversion claim is dependent upon the

resolution of Plaintiff’s Section 553 claim, Plaintiff’s and Defendants’ Motions for
Summary Judgment regarding Plaintiff’s Louisiana Conversion claim are DENIED.
III.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment is

DENIED,34 and Defendants’ Motion for Summary Judgment is DENIED,35 except as to
Plaintiff’s Section 605 claim, which is GRANTED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 21, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

34
35

Rec. Doc. 13.
Rec. Doc. 19.

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