J&J Sports Productions, Inc. v. Bromart, LLC
Filing
12
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/8/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
J & J SPORTS PRODUCTIONS, INC.
:
v.
:
Civil Action No. DKC 15-0175
:
BROMART, LLC
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Cable
Act
case
is
a
motion
for
partial
summary
Plaintiff J & J Sports Productions, Inc.
judgment
(ECF No. 11).
court now rules, no hearing being deemed necessary.
105.6.
filed
by
The
Local Rule
For the following reasons, Plaintiff’s motion will be
granted.
I.
Background
The following facts are uncontested.
Plaintiff “paid for
and was thereafter granted the exclusive nationwide television
distribution
Cotto,
rights
WBA
World
to
the
Light
Floyd
Mayweather,
Middleweight
Jr.
v.
Miguel
Championship
Fight
Program[,] which telecast nationwide on Saturday May 5, 2012”
(“the Broadcast”).
(ECF No. 1 ¶ 8).
Plaintiff entered into
sublicensing agreements with commercial establishments, such as
bars and restaurants, which purchased the rights to exhibit the
Broadcast
for
their
patrons.
sublicense from Plaintiff.
Defendant
did
not
obtain
a
On the night of the Broadcast, an
investigator
hired
by
Plaintiff
witnessed
Defendant
charging
patrons to enter its establishment to watch the Broadcast on two
televisions.
(ECF No. 1-1, at 2).
“[w]ith
knowledge
full
that
[the
Plaintiff alleges that,
Broadcast]
was
not
to
be
intercepted, received and exhibited by entities unauthorized to
do so, . . . [Defendant] did unlawfully publish, divulge and
exhibit [the Broadcast] . . . willfully and for the purposes of
direct
or
indirect
commercial
gain.”
advantage
or
private
financial
(ECF No. 1 ¶ 11).
On January 21, 2015, Plaintiff J & J Sports Productions,
Inc.
(“Plaintiff”)
commenced
this
action
against
Defendant
Bromart, LLC t/a Sahara Oasis t/a Sahara Oasis Restaurant &
Lounge, alleging three counts: violations of the Communications
Act
of
1934,
as
amended,
47
U.S.C.
§§
553
(unauthorized
reception of cable services) and 605 (unauthorized publication
or use of communications) (Counts I and II); and the Maryland
common
law
tort
of
conversion
(Count
III).
(ECF
No.
1).
Defendant answered the complaint on February 19, stating only
that
“Bromart,
trading
as
company
ceased
“[t]here
are
LLC[,]
Sahara
no
which
Oasis[,]
operations
known
is
has
a
limited
been
effective
assets.”
(ECF
liability
liquidated[,]”
June
No.
30,
6).
company
“[t]he
2014[,]”
On
June
and
8,
Plaintiff filed the pending motion for partial summary judgment
2
as to liability on the complaint’s statutory counts.1
11).
(ECF No.
Defendant has not opposed the motion and the time in which
to do so has passed.
II.
Standard of Review
Summary judgment may be entered only if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
532
F.3d
291,
297
(4th
Cir.2008).
Summary
judgment
is
inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).
Where,
as here, the nonmoving party fails to respond, the requested
relief
may
56(e)(2).
not
automatically
be
granted.
See
Fed.R.Civ.P.
Rather, the court must “review the motion, even if
unopposed, and determine from what it has before it whether the
moving party is entitled to summary judgment as a matter of
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th
law.”
Cir. 1993).
1
Plaintiff also asks for damages and attorney’s fees in its
motion, but provides no basis for its request in the attached
memorandum of law.
Accordingly, Plaintiff’s motion will be
treated as requesting summary judgment as to liability only.
3
III. Analysis
Plaintiff seeks partial summary judgment on Counts I and
II, which allege violations of the Communications Act under 47
U.S.C. §§ 553 and 605.
“[S]ections 605 and 553 of 47 U.S.C. . .
. are provisions of the Federal Cable Act that address different
modalities of so-called ‘cable theft.’”
Inc.
v.
Mayreal,
LLC,
849
F.Supp.2d
J & J Sports Prods.,
586,
588
(D.Md.
2012).
Section 553 states that “[n]o person shall intercept or receive
or
assist
service
in
intercepting
offered
over
a
or
receiving
any
communications
cable
system
unless
specifically
authorized to do so by a cable operator or as may otherwise be
specifically authorized by law.”
605
prohibits
certain
the
“radio”
unauthorized
communications,
television transmission.”
n.3.
47 U.S.C § 553(a)(1).
interception
including
or
Section
receipt
“digital
of
satellite
Mayreal, LLC, 849 F.Supp.2d at 588
Both statutes are strict liability statutes.
Joe Hand
Promotions, Inc. v. Dock Street Enters., Inc., No. WMN-11-1973,
2011 WL 6141058, at *4 (D.Md. Dec. 8, 2011) (noting that section
553
“is
a
strict
605(e)(3)(C)
liability
(providing
for
statute”);
see
also
liability
without
47
a
U.S.C.
finding
§
of
intent).
Plaintiff
does
not
specify
if
Defendant
program through a cable or satellite system.
intercepted
the
Courts, including
judges within this court, are split on the question of whether
4
the
same
conduct
can
violate
both
statutes.
Compare
Dock
Street, 2011 WL 6141058 at *4 (stating that “the statutes do not
overlap”), with J & J Sports Prods., Inc. v. Castro Corp, No.
11-cv-00188-AW, 2011 WL 5244440, at *3 (D.Md. Nov. 1, 2011)
(noting that courts have found that the same “conduct violated
both statutes”).2
At the pleading stage, a plaintiff need only
allege that a business entity “intercepted and displayed the
Program
at
its
establishment,
without
authorization
from
[Plaintiff], on a particular date and at a particular time.”
See, e.g., Joe Hand Promotions, Inc. v. Md. Food & Entm’t, LLC,
No. CCB-11-3272, 2012 WL 5879127, at *4 (D.Md. No. 19, 2012).
In addition, this court has entered default judgment in nearly
identical
factual
and
procedural
situations,
finding
that
plaintiffs had established a violation of either § 553 or § 605.
See, e.g., J & J Sports Prods., Inc. v. Shiva Foods, Inc., No.
PWG-14-2049, 2015 WL 2452421, at *2 (D.Md. May 19, 2015); J & J
Sports Prods., Inc. v. AKC Restaurant, Inc., No. DKC-14-2931,
2015 WL 1531279, at *2 (D.Md. Apr. 3, 2015);
J & J Sports
Prods., Inc. v. Rumors, Inc., No. CCB-14-2046, 2014 WL 6675646,
at
*2
(D.Md.
Nov.
21,
2014).
At
summary
judgment,
courts
generally expect the plaintiff to have utilized discovery to
determine the specific method of interception.
2
It is
damages under
Inc. v. Shiva
*2 (D.Md. May
clear, however,
both statutes.
Foods, Inc., No.
19, 2015); Castro
Here, however,
that a plaintiff cannot recover
See, e.g., J & J Sports Prods.,
PWG-14-2049, 2015 WL 2452421, at
Corp., 2011 WL 5244440 at *3.
5
Defendant
repeated
has
ceased
attempts
unsuccessful.
operations,
to
contact
and
Plaintiff
defense
(See ECF No. 10).
counsel
counsel’s
have
been
Defendant filed an answer, but
did not contest the factual allegations of the complaint and
attached affidavit.
(See ECF No. 6).
Defendant’s cessation of
operations and lack of responsiveness has precluded Plaintiff’s
further
development
of
the
record,
beyond
the
investigator’s
affidavit, to show the exact method of interception.
Because
Defendant controls the relevant information, there appears to be
no
way,
absent
discovery,
for
Plaintiff
to
provide
showing how Defendant intercepted the broadcast.
neither
the
record
nor
any
of
the
cases
evidence
In addition,
addressing
the
interception of similar broadcasts indicate there is another way
Defendant could have received the broadcast other than through a
cable or digital satellite feed.
Accordingly, the uncontested
facts indicate that Defendant violated either § 553 or § 605 by
showing
the
Broadcast
without
Plaintiff’s
authorization,
and
summary judgment as to liability is appropriate.
III. Conclusion
For the foregoing reasons, Plaintiff’s motion for partial
summary judgment as to liability under the Cable Act will be
granted.
A separate order will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
6
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