J & J Sports Productions, Inc. v. Ellan et al

Filing 20

OPINION AND ORDER granting 17 Motion for Summary Judgment. Plaintiff may have until 4/29/2016, to supplement its request for damages and attorneys fees. Defendants may have until 5/23/2016 to respond. Plaintiff may have until 6/6/2016 to reply. Signed by Magistrate Judge Norah McCann King on 3/25/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

J & J SPORTS PRODUCTION, INC.,
Plaintiff,
Case No. 2:15-cv-01624
Magistrate Judge King

v.
DIAB ELLAN, et al.,
Defendants.

OPINION AND ORDER
This is an action under the Communications Act of 1934, as
amended, 47 U.S.C. § 605 et seq., in which plaintiff alleges that
defendants, Diab Ellan and House of Montecristo, Inc., intercepted and
exhibited a boxing match at the Montecristo Lounge in Columbus, Ohio,
without license. Complaint, ECF No. 1.1 This matter is before the
Court, with the agreement of the parties pursuant to 28 U.S.C. §
636(c),

on Plaintiff J & J Sports Productions, Inc.’s Motion for

Summary Judgment on Diab Ellan and House of Montecristo, Inc., ECF No.
17 (“Plaintiff’s Motion”). Defendants have responded in opposition to
Plaintiff’s Motion and plaintiff has filed a reply. Brief of
Defendants Diab Ellan and House of Montecristo, Inc. in Opposition to
Plaintiff’s Motion for Summary Judgment, ECF No. 18 (“Defendants’
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The Complaint also asserted a claim under The Cable & Television Consumer
Protection and Competition Act of 1992, as amended, 47 U.S.C. § 553 et seq.,
and a state law claim of conversion. However, plaintiff indicated at the July
9, 2015 preliminary pretrial conference that it would not pursue that claim.
See Preliminary Pretrial order, PAGEID# 57, ECF No. 12. Plaintiff seeks
summary judgment only on its claim under 47 U.S.C. § 605. Plaintiff J & J
Sports Productions, Inc.’s Motion for Summary Judgment on Diab Ellan and
House of Montecristo, Inc., PAGEID# 68, n. 1; 70 n.3, ECF No. 17.

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Response”); Plaintiff J & J Sports Productions, Inc.’s Reply Brief in
Support of their Motion for Summary Judgment on Diab Ellan and House
of Montecristo, Inc., ECF No. 19 (“Plaintiff’s Reply”). For the
reasons that follow, Plaintiff’s Motion is GRANTED. The Court DIRECTS
that the parties further brief the issues of damages and attorney
fees, should the parties be unable to resolve those issues by
agreement.
I. Background
J & J Sports Production, Inc. (“J & J” or “plaintiff”) is a
commercial distributor of sports and entertainment programming.
Plaintiff’s Affidavit in Support of Plaintiff’s Motion for Summary
Judgment, ECF No. 17-1, PAGEID# 90 (“Gagliardi Affidavit 1”). J & J
markets and sells sublicensing rights to commercial customers. Id.
Joseph Gagliardi is the president of J & J. Id. at PAGEID# 89.
J & J purchased the exclusive commercial exhibition licensing
rights to broadcast the closed circuit May 4, 2013 Floyd Mayweather,
Jr. v. Robert Guerrero Championship Fight Program and the associated
undercard bouts2 (“the Program”) from Golden Boy Promotions, LLC.
Exhibit 1, attached to Gagliardi Affidavit 1, ECF No. 17-1, PAGEID#
97-102 (“Licensing Agreement”). The Licensing Agreement also granted
to J & J the exclusive right to market and sell sublicensing rights in
the Program to commercial establishments and to commence or settle any
legal claim arising out of piracy of the Program. Id. at PAGEID# 97,
100.

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Included in the undercard bouts were the Rosado v. Love and Santa Cruz v
Munoz fights. See Gagliardi Affidavit 1, PAGEID# 91.

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J & J priced the sublicensing fee for the Program based on the
seating capacity of each establishment that purchased a license to
show the Program. Gagliardi Affidavit 1, PAGEID# 91. This fee
schedule, as well as ordering information, was contained in
plaintiff’s marketing materials. Exhibit 2 to Gagliardi Affidavit 1,
PAGEID# 104 (“Fee Schedule Flier”). For commercial venues with a
seating capacity of up to 100 patrons, the fee was $2,200.00; for
venues with a seating capacity of between 100 and 200 patrons, the fee
was $4,200.00. Id. The Fee Schedule Flier also contains the following
language:
All commercial locations that have been licensed to carry
this event must have a valid license agreement from the
OFFICIAL CLOSED-CIRCUIT PROVIDER, G&G Closed Circuit Events
Inc. There is NO OTHER LEGAL LICENSOR. Any location that
has not been licensed by this provider will be considered a
PIRATE and TREATED ACCORDINGLY.
Id. [sic]. Joseph Gagliardi clarified that G&G was retained by J & J
to assist in the sale of sublicensing rights and that, although G&G
had the right to market and sell sublicenses on behalf of J & J, it
was J & J that retained the exclusive right to pursue litigation in
any piracy claim for unauthorized receipt of the broadcast.
Plaintiff’s Second Affidavit in Support of Plaintiff’s Motion for
Summary Judgment, ECF No. 19-1, PAGEID# 128 (“Gagliardi Affidavit 2”).3
On May 4, 2013, two individuals hired by J & J entered the
Montecristo Lounge to investigate the unlicensed broadcast of the
Program. Gagliardi Affidavit 1, PAGEID# 90-91. The first, Terron

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Although the Gagiardi Affidavit 2 was attached to Plaintiff’s Reply,
defendants have not asked to supplement their opposition to Plaintiff’s
Motion, nor have defendants otherwise addressed the facts averred in this
affidavit.

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Mitchell, avers that he entered the Montecristo Lounge, paid a cover
charge of $22.94,4 and observed the Rosado v. Love bout being broadcast
on six television screens and one projection screen. Affidavit of
Terron Mitchell, ECF No. 17-2, PAGEID# 105 (“Mitchell Affidavit”). Mr.
Mitchell estimated that the Montecristo Lounge had the capacity to
hold more than 100 persons; he counted 10, 12, and 8 patrons at
various times during his investigation. Id. at PAGEID# 106.
The second individual, Paul Jason Hall, entered the Montecristo
Lounge about 45 minutes after Mr. Mitchell. Affidavit of Paul Jason
Hall, ECF No. 17-3, PAGEID# 108 (“Hall Affidavit”). He paid a cover
charge of $5.00 and observed the Santa Cruz v. Munoz undercard bout
airing on three television screens. Id. Hall estimated that the
Montecristo Lounge could hold approximately 100 people; he counted 19,
22, and 31 patrons at various times during his visit. Id. at PAGEID#
109.
No license to exhibit the Program was purchased for the
Montecristo Lounge. Gagliardi Affidavit 1, PAGEID# 91.
A document attached to Plaintiff’s Motion5 identifies the House
of Montecristo “DBA MONTECRISTO LOUNGE” as the holder of liquor permit
number 4004631, and Diab Ellan as the CEO of the entity. Ownership
Disclosure Information, PAGEID# 115, ECF No. 17-3.
Plaintiff’s Motion seeks statutory damages in the amount of
$10,000.00 and enhanced damages in connection with defendants’ alleged

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This amount may have included Mitchell’s purchase of
The document appears to be information obtained from
Commerce web site. Defendants do not challenge either
document or the accuracy of the information contained
Civ. P. 56(c)(1), (2).
5

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a cigar. Id.
the Ohio Department of
the authenticity of the
therein. See Fed. R.

willful violation in the amount of $30,000.00. Id. at PAGEID# 76-85.
Plaintiff also seeks an award of its costs and attorney fees. Id.
II.

Standard
The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “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.” Fed. R. Civ. P. 56(a). Pursuant to Rule 56(a), summary
judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Id. In making this determination, the evidence “must be viewed
in the light most favorable” to the non-moving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie
if the dispute about a material fact is genuine, “that is, 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). However, summary judgment is appropriate if the opposing party
“fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The “mere existence of a scintilla of evidence in
support of the [opposing party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for the
[opposing party].” Anderson, 477 U.S. at 252.
The “party seeking summary judgment always bears the initial

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responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.” Celotex
Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party
who “must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
56(e)). “Once the moving party has proved that no material facts
exist, the non-moving party must do more than raise a metaphysical or
conjectural doubt about issues requiring resolution at trial.”
Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)). Furthermore, trial court does not bear the burden of
searching the entire record to discover genuine issues of material
fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001). Instead, the
nonmoving party has an “affirmative duty to direct the court’s
attention to those specific portions of the record upon which it seeks
to rely to create a genuine issue of material fact.”
III. Discussion
A. Liability
Section 605(a) of Title 47 to the United States Code provides, in
relevant part, as follows:
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. No person having received
any intercepted radio communication or having become

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acquainted with the contents, substance, purport, effect,
or meaning of such communication (or any part thereof)
knowing that such communication was intercepted, shall
divulge or publish the existence, contents, substance,
purport, effect, or meaning of such communication (or any
part thereof) or 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) (2015). “Any person aggrieved” by a violation of 47
U.S.C. § 605(a) may bring a civil action against the violator. 47
U.S.C. § 605(e)(3)(A). Under the statute, “any person aggrieved”
includes any person with “proprietary rights in the intercepted
communication by wire or radio.” 47 U.S.C. § 605(d)(6).
In response to Plaintiff’s Motion, defendants question
plaintiff’s rights to the Program and plaintiff’s status as a “person
aggrieved” for purposes of Section 605(e). Pointing to the Fee
Schedule Flier, which characterizes “G&G Closed Circuit Events Inc.”
as the “OFFICIAL CLOSED-CIRCUIT PROVIDER, There is NO OTHER LEGAL
LICENSOR,” id. at PAGEID# 104, defendants argue that there exists a
genuine issue of material fact whether plaintiff holds any rights in
the Program. Defendants’ Response, PAGEID# 119. Defendants also argue
that the statement made in the Gagliardi Affidavit 1 that J & J
purchased the exclusive commercial exhibition licensing rights to
broadcast the Program from Golden Boy Promotions, LLC, is not based on
personal information and cannot therefore be considered by this Court.
Defendants’ Response, PAGEID# 121 (citing Fed. R. Civ. P. 56(c)(4)).
Finally, defendants argue that, even assuming liability under Section
605, “damages should be considered on a case-by-case basis in a
separate hearing.” Id. at PAGEID# 121-22.
Defendants’ first argument is satisfactorily addressed by the

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Gagliardi Affidavit 2, which clarified that G&G was hired by J & J
only to assist in the sale of sub-licensing rights to the Program; it
was J & J that retained the exclusive right to pursue litigation in
any piracy claim for unauthorized receipt of the broadcast. Id. at
PAGEID# 128. Because there is no disputed issue of fact on this point,
the Court concludes that plaintiff qualifies as “a person aggrieved”
within the meaning of 47 U.S.C. § 605.
Defendants also argue that J & J’s claim to rights in the Program
is based on inadmissible hearsay. Defendants specifically argue that
Mr. Gagliardi has no personal knowledge that Golden Boy Promotions was
legally authorized to license rights in the Program to J & J. This
Court disagrees. Joseph Gagliardi avers that plaintiff purchased the
exclusive commercial exhibition licensing rights to broadcast the
Program from Golden Boy Promotions, LLC. Gagliardi Affidavit 1,
PAGEID# 90. The Licensing Agreement authenticated by Mr. Gagliardi
also granted to J & J the exclusive right to commence or settle any
legal claim arising out of piracy of the Program. Licensing Agreement,
PAGEID# 97, 100. Mr. Gagliardi, the President of J & J, certainly has
personal knowledge of the business dealings of J & J. If defendants
intended to challenge the legal sufficiency of those dealings, it was
incumbent upon them to adduce evidence and argument in support of such
challenge.
In short, the Court concludes that plaintiff J & J is entitled to
judgment on it claim under 47 U.S.C. § 605.
B. Damages
Plaintiff also requests an award of statutory damages in the

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amount of $10,000.00, enhanced damages of up to $30,000.00, and a full
award of litigation costs and attorneys’ fees. Plaintiff’s Motion,
PAGEID# 81, 85. An “aggrieved party” under 47 U.S.C. § 605 may elect,
for each violation, either actual damages caused by the interception
or statutory damages ranging from $1,000.00 to $10,000.00. 47 U.S.C. §
605(e)(3)(C). Should a court find that the violation was committed
“willfully and for purposes of direct or indirect commercial advantage
or private financial gain,” the court may, in its discretion, enhance
the damages awarded by up to $100,000.00 per violation. 47 U.S.C. §
605(e)(3)(C)(ii). Moreover, the court “shall direct the recovery of
full costs, including awarding reasonable attorneys’ fees to an
aggrieved party who prevails.” 47 U.S.C. § 605(e)(3)(B)(iii).
Defendants oppose any consideration of damages unless and until
liability is determined. Defendants’ Response, PAGEID# 121. Liability
has now been determined, and the issue of damages is appropriate for
consideration.
Defendants also argue that damages should not be determined
without an evidentiary hearing. Id. Plaintiff has not responded to
this contention. Although the Court is not persuaded that an
evidentiary hearing is required, the Court will nevertheless defer its
consideration of the issue of damages until after the parties have had
the opportunity to attempt to resolve the remaining issues in the
case.
Should the parties be unable to resolve the issue of damages and
attorney fees, plaintiff may have until April 29, 2016, to supplement,
with appropriate evidentiary materials, its request for damages and

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attorneys fees. Defendants may have until May 23, 2016 to respond,
with appropriate evidentiary materials. Plaintiff may have until June
6, 2016 to reply.

If any party concludes that an evidentiary hearing

on the remaining issues is warranted, that party shall expressly so
request and provide legal authority for its position.
WHEREUPON, Plaintiff J & J Sports Productions, Inc.’s Motion for
Summary Judgment on Diab Ellan and House of Montecristo, Inc., ECF No.
17, is GRANTED.
It is ORDERED that, should the parties be unable to resolve the
issues of damages and attorney fees, plaintiff may have until April
29, 2016, to supplement, with appropriate evidentiary materials, its
request for damages and attorneys fees. Defendants may have until May
23, 2016 to respond, with appropriate evidentiary materials. Plaintiff
may have until June 6, 2016 to reply.

If any party concludes that an

evidentiary hearing on the remaining issues is warranted, that party
shall expressly so request and provide legal authority for its
position.

s/

Norah McCann King__
_
Norah McCann King
United States Magistrate Judge

March 25, 2016

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