J & J SPORTS PRODUCTIONS, INC. v. HARRISON

Filing 20

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 10/23/2013 as set out herein, that Defendant Austin Wayne Harrison, doing business as Club Palacio, is liable to Plaintiff J & J Sports Productions, Inc. as a matter of la w. FURTHER that, should Plaintiff and Defendant be unable to resolve the issue of damages, Defendant will have 20 days within the date of this Memorandum Order to file a declaration or affidavit in admissible form setting forth his factual contentions as to damages.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

J & J SPORTS PRODUCTIONS,
INC.,

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)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
AUSTIN WAYNE HARRISON,
individually and d/b/a/ CLUB
PALACIO,
Defendant.

1:12CV1317

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
On December 11, 2012, Plaintiff J & J Sports Productions,
Inc. (“Plaintiff”), filed suit against Defendant Austin Wayne
Harrison, doing business as Club Palacio (“Defendant”).
1.)

(Doc.

On August 12, 2013, Plaintiff moved for summary judgment.

(Docs. 15–16.)

Defendant

filed a reply (Doc. 19).
court

grants

liability

but

responded

grant

18),

and

Plaintiff

For the reasons set forth below, the

Plaintiff’s
will

(Doc.

motion
Defendant

for

summary

additional

judgment

time

to

on

submit

admissible evidence as to the issue of damages if the parties
are unable to resolve the issue on their own.
I.

BACKGROUND
It

is

Warfare’:

undisputed
Manny

that

Pacquiao

on
v.

November
Antonio

13,

2010,

Margarito,

“‘Tactical
WBC

Light

Middleweight
broadcast

at

Championship
Defendant’s

Fight

Program”

establishment

Street in Winston-Salem, North Carolina.
18

at

1.)

It

is

also

undisputed

(“the
at

Program”)

3025-C

Waughtown

(Doc. 15–3 at 3; Doc.

that

Plaintiff

owned

exclusive commercial exhibition rights to the Program.
15–2

¶

3.)

Plaintiff

entered

was

into

various

the

(Doc.

sub-licensing

agreements with establishments, giving such establishments the
right

to

broadcast

the

Program.

(Id.)

Defendant

had

not

purchased from Plaintiff the rights to broadcast the Program in
his establishment.

(Id.)

The cost to obtain the rights to

broadcast the Program would have been $4,200.

(Id. ¶ 8.)

On

this ground, Plaintiff seeks summary judgment on its claim that
Defendant violated 47 U.S.C. § 605.
II.

ANALYSIS
The relevant statute provides in pertinent part:
No person not being authorized by the sender
shall intercept any radio communication and divulge or
publish the existence, contents, substance, purport,
effect, or meaning of such intercepted communication
to any person. No person not being entitled thereto
shall receive or assist in receiving any interstate or
foreign
communication
by
radio
and
use
such
communication (or any information therein contained)
for his own benefit or for the benefit of another not
entitled thereto.

47 U.S.C. § 605(a).
satellite
§ 605.

cable

In sections (b) through (e), Congress added

communications

to

the

prohibition imposed

by

See Joe Hand Promotions, Inc. v. Jorkay, LLC, No. 5:10–

2

CV–536–D, 2013 WL 2447867, at *2 (E.D.N.C. June 5, 2013).

“‘Any

person aggrieved by a violation of subsection (a)’ may bring a
civil action for actual or statutory damages for each violation.
J & J Sports Productions, Inc. v. Morales, No. 1:10–cv–01694,
2011 WL 6749080, at *2 (E.D. Cal. Dec. 22, 2011) (quoting 47
U.S.C. § 605(e)(3)(C)).
person

with

communication.”

“Any person aggrieved” includes “any

proprietary

rights

in

the

intercepted

47 U.S.C. § 605(b)(6)

Defendant contends that he purchased the Program from his
“TV programming supplier” and invited friends and family to the
establishment on a closed night to watch the Program.
at 1.)

According to Defendant, nobody in Club Palacio during

the Program was a paying customer of the establishment.
2.)

(Id. at

Unfortunately, he attached no admissible evidence to his

response. 1
of

(Doc. 18

a

In contrast, Plaintiff submitted the sworn affidavit

private

investigator,

who

testified

that

there

were

84

people in Club Palacio and a bartender was on staff when he was
present there at 11:38 p.m. on November 13, 2010.

(Doc. 15–3 at

3.)
Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the moving party is entitled
1

Pursuant to Federal Rule of Civil Procedure 56, a party must submit
admissible evidence or explain why any material cited cannot be
obtained in admissible form.
See Fed. R. Civ. P. 56(b).
Here,
Defendant simply submitted a hand-written response, which was not
sworn as required by Rule 56(c)(4).
Thus, Defendant’s hand-written
filing is not in admissible form.

3

to judgment as a matter of law.

Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

A genuine dispute

as to a material fact exists when there is sufficient evidence
on which a reasonable jury could return a verdict in favor of
the nonmoving party.
242,

248-49

allegations

Anderson v. Liberty Lobby, Inc., 477 U.S.

(1986).
and

no

“In

a

admissible

situation
evidence

where

are

only

presented

unsworn
to

the

Court by the nonmoving party in opposition to the moving party's
motion for summary judgment, ‘there can be no genuine issue as
to any material fact . . . .’”

Malone v. Ford, No. 3:06CV500,

2007

Va.

WL

6080431,

at

*2

(E.D.

Aug.

24,

2007)

(quoting

Celotex, 477 U.S. 323) (internal quotation marks omitted)).
Section 605 is a strict liability statute.
2447867,

at

*2.

To

establish

a

violation

Jorkay, 2013 WL
of

section

605,

Plaintiff need only show that “(1) Defendant did not obtain a
license from Plaintiff to receive the signal for the Program at
[Club

Palacio],

exhibited

at

(2)

[Club

the

Program

Palacio]

on

was

unlawfully

[November

13,

received

2010]

and

and
(3)

Plaintiff is a ‘person aggrieved’ under section 605.”

Morales,

2011

evidence

WL

6749080,

at

*3.

Plaintiff’s

uncontested

establishes that although Defendant may have contracted with his
satellite provider to receive the Program in his private home,
Defendant

did

not

contract

with

Plaintiff

for

a

license

to

broadcast the Program elsewhere, the Program was in fact shown
4

in Club Palacio – a commercial establishment, and Plaintiff is
an aggrieved person under the statute.
Even if Defendant’s unsworn evidence is considered, he has
not established a defense to liability.

The court in Jorkay

considered this exact situation and held that the defendant’s
purchase of the program at issue from DirecTV was not a defense
because the defendant still broadcast the program “without the
authorization

of

2447687, at *2.

the

exclusive

licensee.”

Jorkay,

2013

WL

Therefore, Defendant cannot avoid liability by

arguing that he legally purchased the Program from his supplier
of TV programming.
Defendant also contends that Club Palacio was not open to
the

public

when

the

Program

was

broadcast

there.

He

has

submitted no admissible evidence to create a genuine issue of
material fact on this issue, and even if he had, it would not
establish a defense to liability under section 605.
605(b) establishes an exception to liability.

Section

It provides in

relevant part: “The provisions of subsection (a) of this section
shall not apply to the interception or receipt by any individual
. . . of any satellite cable programming for private viewing if”
certain other provisions are met.
added).
private

“Private
use

equipment,

in

owned

viewing”

is

47 U.S.C. § 605(b) (italics
defined

as

an

individual's

dwelling

or

operated

such

by
5

“the
unit

viewing
by

individual,

for

means

of

capable

of

receiving

satellite

satellite.”

cable

programming

Id. § 605(d)(4).

directly

from

a

Defendant does not argue that

Club Palacio qualifies as a “dwelling unit,” nor does it appear
to, and therefore the exception does not apply in this case.
Because Plaintiff has established the necessary elements of
a violation of 47 U.S.C. 605(a) and Defendant has provided no
admissible evidence to create a genuine issue of material fact
regarding

any

of

these

elements,

Plaintiff

is

entitled

to

summary judgment as to liability on the section 605 claim.
In J & J Sports Productions, Inc. v. El Tropicabana, LLC,
No.

3:12CV800,

2013

WL

3270563,

at

*3-4

(E.D.

Va.

June

26,

2013), the court reviewed the diverse approaches taken by courts
in

considering

that

case,

statutory

statutory

this

court

damages

of

a

damages
has

and

enhancements.

determined

flat

fee,

in

other

taking

into

Based

on

cases

that

account

the

ordinary license fee, is warranted, as well as an enhancement of
three times the statutory damages.
the flat fee would be $4,200.

If that were the case here,

However, the statute does provide

the court the discretion to award damages in an amount not less
than $250 if “the court finds that the violator was not aware
and

had

violation

no
of

reason
this

to

believe

section.”

that
47

his

U.S.C.

acts
§

constituted

a

605(e)(3)(C)(iii).

Defendant’s response to Plaintiff’s motion for summary judgment

6

appears to make a case for reduced damages.

But the response is

not in an admissible form.
Therefore, the court will grant Defendant 20 days within
which to submit a response in admissible form (i.e., a sworn
declaration or affidavit under the penalty of perjury) setting
forth

his

factual

position

as

to

a

reduced

damage

Defendant is also encouraged to consult a lawyer.

award.

Should the

parties be unable to resolve the damages issue and Defendant
timely files admissible evidence as to damages, the court will
consider setting the matter for hearing for the determination of
damages.
III. CONCLUSION
For the foregoing reason, therefore,
IT IS ORDERED that Defendant Austin Wayne Harrison, doing
business as Club Palacio, is liable to Plaintiff J & J Sports
Productions, Inc. as a matter of law.
IT IS FURTHER ORDERED that, should Plaintiff and Defendant be
unable to resolve the issue of damages, Defendant will have 20
days

within

the

date

of

this

Memorandum

Order

to

file

a

declaration or affidavit in admissible form setting forth his
factual contentions as to damages.

/s/
Thomas D. Schroeder
United States District Judge
October 23, 2013
7