J&J Sports Productions Inc v. Diaz et al

Filing 15

ORDER denying 13 Motion for Default Judgment. Signed by Honorable Timothy D. DeGiusti on 5/23/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
CECILIO LOPEZ DIAZ a/k/a CECILIO DIAZ
LOPEZ, individually and d/b/a EL RANCHITO
BAR,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. CIV-13-1200

ORDER
Before the Court is Plaintiff’s Motion for Default Judgment and Brief in Support [Doc. Nos.
13-14]. Plaintiff seeks entry of default judgment against Defendant Cecilio Lopez Diaz a/k/a Cecilio
Diaz Lopez, individually and d/b/a El Ranchito Bar (Defendant), awarding damages, attorneys’ fees
and costs following the Clerk’s Entry of Default [Doc. No. 12] on April 22, 2014.
The Court docket reflects that Defendant was timely served. See Return of Service [Doc.
Nos. 6-7]. The time for Defendant to answer or otherwise respond has expired. Defendant has not
entered an appearance in this case or otherwise requested an extension of time, or filed any pleading
or motion.
Plaintiff seeks entry of default judgment against Defendant pursuant to Fed. R. Civ. P. 55(b).
Plaintiff’s motion is directed to Defendant’s alleged violation of 47 U.S.C. § 605 as set forth in
Count I of the Complaint. Plaintiff alleges that it had “exclusive nationwide television distribution
rights to Manny Pacquiao v. Juan Manuel Marquez WBO Welterweight Championship Fight
Program, telecast nationwide which took place on Saturday, November 12, 2011 . . . .” Complaint,
¶ 8. Plaintiff further alleges that Defendant “unlawfully publish[ed], divulge[d] and exhibit[ed] the

Program at the time of transmission at [its] Oklahoma City, Oklahoma location (5900 South Shields
Boulevard, Oklahoma City, Oklahoma).” Complaint, ¶ 11.
Defendant, by not answering or otherwise responding, has admitted the well-pleaded factual
allegations of the complaint. See Burlington Northern R. Co. v. Huddleston, 94 F.3d 1413, 1415
(10th Cir. 1996), citing Fed. R. Civ. P. 8(d) (now Fed. R. Civ. P. 8(b)(6)). However, in support of
its motion for default judgment, Plaintiff submits contradictory evidence. Plaintiff submits the
affidavit of Nicolin Ryan Decker, a private investigator who went to Defendant’s establishment on
November 12, 2011. See Motion, Decker Affidavit [Doc. No. 14-2]. In that affidavit, Investigator
Decker states: “At the time I was inside the above establishment, I observed the following program
on the above televisions: The third and fourth round of the Bradley vs. Casamayor fight . . . .” See
id. at ¶ 4 (emphasis added). Plaintiff also submits the affidavit of Joseph M. Gagliardi, the President
of J&J Sports Productions, Inc., who states the following:
The [Manny Pacquiao v. Juan Manuel Marquez Championship Fight
Program]contained several televised under-card bouts, color commentary, along
with the main event prizefight between Manny Pacquiao and Juan Manuel Marquez.
As set forth within the sworn Affidavit of Michael Gardiner, it was the third and
fourth rounds of the main event prizefight between Manny Pacquiao and Juan
Manuel Marquez that Mr. Gardiner observed as being unlawfully exhibited by the
establishment doing business as “El Ranchito” on Saturday, November 12, 2011 . . . .
See Gagliardi Affidavit [Doc. No. 14-1] at ¶ 7 (emphasis added and in original). The record contains
no affidavit from an individual named Michael Gardiner as referenced in Mr. Gagliardi’s Affidavit.
Although it is probable that the fight observed at Defendant’s establishment by Investigator
Decker is one of the “under-card bouts” referenced in Mr. Gagliardi’s Affidavit, and included in the
Plaintiff’s licensing rights for the Manny Pacquiao v. Juan Manuel Marquez Championship Fight
Program, the conflicting and/or incomplete evidence presented by Plaintiff prevents the Court from

2

making that factual determination – the very factual determination essential to Plaintiff establishing
Defendant violated 47 U.S.C. § 605.
The Court therefore DENIES Plaintiff’s Motion for Default Judgment [Doc. Nos. 13-14].
Plaintiff, however, is granted leave to file an amended motion to clarify the record with respect to
whether the “Bradley vs. Casamayor fight” observed by Investigator Decker was an under-card fight
included as part of the license purchased by Plaintiff for the Manny Pacquiao v. Juan Manuel
Marquez Championship Fight Program.
IT IS SO ORDERED this 23rd day of May, 2014.

3