J&J Sports Productions Inc v. Mandell Family Ventures, LLC et al
Filing
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Memorandum Opinion and Order: Before the Court is Defendants Mandell Family Ventures, LLC and Samuel J. Mandell, III's("Defendants") Motion for Summary Judgment [D.E. 84]. Defendants' Motion for Summary Judgment [D.E. 84] is GR ANTED with respect to Plaintiff's Section 553 claim and DENIED as moot with respect to Plaintiff's Section 605 claim. Furthermore, Defendants' request for fees under Section 1927 is DENIED. (see order) (Ordered by Magistrate Judge Paul D Stickney on 3/26/2015) (mcrd)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
MANDELL FAMILY VENTURES, LLC,
and SAMUEL J. MANDELL, III,
Defendants.
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No. 3:10-CV-2489-BF
MEMORANDUM OPINION & ORDER
Before the Court is Defendants Mandell Family Ventures, LLC and Samuel J. Mandell, III’s
(“Defendants”) Motion for Summary Judgment [D.E. 84]. For the following reasons, the motion is
GRANTED in part and DENIED in part as moot.
BACKGROUND
On December 7, 2010, Plaintiff J&J Sports Productions, Inc. (“Plaintiff”) filed its complaint
against Defendants alleging violations of the Communications Act of 1934, Title 47, United States
Code, Sections 553 (“Section 553”) and 605 (“Section 605”). See Compl. [D.E. 1 at 5]. Plaintiff
alleged that Defendants broadcasted the closed-circuit Floyd Mayweather, Jr. v. Ricky Hatton WBC
Welterweight Championship on December 8, 2007 without authorization. See id. [D.E. 1 at 3].
Plaintiff contended that the closed-circuit broadcast of the fight was not intended for the use of the
general public and could only be exhibited in a commercial establishment if it was contractually
authorized to do so by Plaintiff. See id. [D.E. 1 at 3]. On May 10, 2011, Defendants filed their
motion to dismiss on the ground that they received authorization from Time Warner Cable to
broadcast the fight. See Mot. to Dismiss [D.E. 10 at 1-2]. Defendants contended that (1) they
purchased the pay-per-view event from Time Warner Cable; (2) Time Warner Cable represented to
Greenville Avenue Pizza Company that it was authorized to sell the rights for it to show the fight
to its patrons; (3) Time Warner Cable failed to advise Greenville Avenue Pizza Company that it
needed to purchase a broadcast license to show the fight to its patrons; (4) Time Warner Cable knew
Greenville Avenue Pizza Company was a commercial establishment; and (5) Defendants had no
reason to know of the existence of Plaintiff nor of its claim as the broadcast licensee of the pay-perview fight. See id. [D.E. 10 at 1-2].
On October 5, 2012, the Court granted Plaintiff’s motion for summary judgment. See Mem.
Op. & Order [D.E. 61]. With respect to the Defendants’ argument that the receipt of the fight was
authorized by Time Warner Cable, the Court relied on Garden City Boxing Club v. Vinson, No. 3:03CV-700-BD, 2003 WL 22077958, at *2 (N.D. Tex. Sept. 3, 2008) which stated the following, “[t]he
fact that defendant may have purchased and lawfully received the Lewis-Tyson fight from DirecTV
does not immunize her from liability for then broadcasting the event to patrons at her bar without
obtaining authorization from plaintiff, the exclusive licensee.” Id.; Mem. Op. & Order [D.E. 61 at
8]. On April 1, 2013, the Amended Partial Final Judgment was entered awarding Plaintiff statutory
damages in the amount of $350.00 and costs and attorneys’ fees in the amount of $26,780.30. See
Am. Partial Final J. [D.E. 72].
On May 1, 2013, Defendants appealed the Court’s decision granting Plaintiff’s summary
judgment motion. See Notice of Interlocutory Appeal [D.E. 73]. On June 2, 2014, the United States
Court of Appeals for the Fifth Circuit reversed and remanded the Court’s decision granting summary
judgment in Plaintiff’s favor. See Op. [D.E. 80]. The Fifth Circuit determined that liability does not
extend to Defendants under Section 553 if they received permission from Time Warner Cable
because the “text of the statute unambiguously states that liability extends only to the receipt of cable
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services not authorized by a cable operator.” See id. [D.E. 80 at 4]. The Fifth Circuit explained that
because Defendants submitted uncontroverted affidavits from representatives of Time Warner Cable
and Greenville Avenue Pizza Company stating that Time Warner Cable authorized the receipt of the
broadcast, despite the language of the Service Agreement, Plaintiff failed to meet its summary
judgment burden for its Section 553 claim. See id. [D.E. 80 at 7-8]. Furthermore, the Fifth Circuit
determined that Section 605 is not applicable because it does not apply to the receipt of
communications by wire. See id. [D.E. 80 at 12].
STANDARD OF REVIEW
Summary judgment is proper when “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). “A fact is ‘material’
if its resolution is outcome determinative.” Thompson v. Syntroleum Corp., 108 F. App’x 900, 902
(5th Cir. Sept. 3, 2004) (citing Ginsberg 1985 Real Estate P’ship v. Cadle Co., 39 F.3d 528, 531 (5th
Cir. 1994)). “An issue is ‘genuine’ if the evidence is sufficient for a reasonable fact-finder to find
in favor of the non-movant.” Id. A party seeking summary judgment bears the initial burden of
showing the absence of a genuine issue for trial. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308,
312 (5th Cir. 1995).The movant’s burden can be satisfied by showing the court that there is an
absence of evidence to support the nonmoving party’s case on which that party would have the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets
his burden, the nonmovant must then point to evidence in the record sufficient to establish that there
is a genuine issue of material fact for trial. See Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th
Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and
other competent evidence. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). All
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evidence must be viewed in the light most favorable to the party opposing the summary judgment
motion. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993).
ANALYSIS
a. Summary Judgment
In light of the Fifth Circuit’s Opinion, Defendants moved for summary judgment on the
grounds that: (1) undisputed facts demonstrate that Greenville Avenue Pizza Company received
authorization from Time Warner Cable to broadcast the pay-per-view event on December 8, 2007
and therefore could not have violated Section 553; and (2) Section 605 does not apply to
communications by wire. See Br. in Supp. of Summ. J. Mot. [D.E. 85 at 6-8]. Plaintiff argues that
controverting evidence in the record precludes summary judgment because “Defendants’ customer
agreement with Time Warner Cable specifically warns Defendants that [] not all programming
Defendants can receive is authorized . . . and Defendant may have access to infringing content
through their service and use the service at their own risk.” See Resp. [D.E. 88 at 9]. Further,
Plaintiff argues that Time Warner Cable expressly prohibited Defendants from the broadcast because
their agreement states that “Customer understands and agrees that premium program services, such
as HBO, Cinemax, Showtime, and the Movie Channel, may not be received or shown on any
television receivers located in any public areas, such as lounges, dayrooms, visiting areas or other
common areas used by groups or the general public . . . .” See id. [D.E. 88 at 9]. Plaintiff argues that
“while the Fifth Circuit held that the information Time Warner Cable provided to Defendants did
not establish liability against Defendants as a matter of law, a reasonable juror could apply common
sense, review the warnings Time Warner Cable provided Defendants, and disbelieve Defendant
Mandell (or determine that Mandell should have done more to ascertain whether Time Warner Cable
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lacked authority to provide the cable service).” See id. [D.E. 88 at 9-10].
The evidence Plaintiff points to here does not create a genuine issue of material fact with
respect to its Section 553 claim. In finding that Plaintiff failed to meet its summary judgment burden,
the Fifth Circuit pointed to the uncontroverted affidavits of the representatives of Greenville Avenue
Pizza Company and Time Warner Cable stating that Defendants had permission from Time Warner
Cable to broadcast the fight. See Op. [D.E. 80 at 7]. The Fifth Circuit specifically noted that the vice
president of Time Warner Cable stated that “Greenville Avenue Pizza Company was authorized by
Time Warner Cable to receive the broadcast on cable television of the [fight] on December 8, 2007.”
See Op. [D.E. 80 at 7]. Therefore, it is now Plaintiff’s burden to point to evidence that establish a
genuine issue of material fact for trial. However, the evidence Plaintiff points to in its response
would not cause a reasonable fact finder to rule in Plaintiff’s favor in light of the permission given
and acknowledged by Time Warner Cable. Therefore, summary judgment is granted with respect to
Plaintiff’s Section 553 claim. Further, in light of the Fifth Circuit’s determination regarding the
inapplicability of Section 605 to communications by wire from Time Warner Cable’s system,
Plaintiff no longer wishes to pursue this claim. See Resp. [D.E. 88 at 6]. Therefore, Defendants’
request for summary judgment with respect to Plaintiff’s Section 605 claim is denied as moot.
b. Attorneys’ Fees
Defendants seek attorney fees under Title 28, United States Code, Section 1927 (“Section
1927”) on the ground that Plaintiff continues to prosecute its claims under Sections 553 and 605
when it is clear from the Fifth Circuit’s Opinion that such claims are no longer viable. See Br. in
Supp. of Summ. J. [D.E. 85 at 9]. Section 1927 provides as follows:
Any attorney or other person admitted to conduct cases in any court of the United
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States or Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.
28 U.S.C. § 1927.
Prior to awarding sanctions under Section 1927, the Court must give detailed explanations
as to why the sanctions are warranted. F.D.I.C. v. Calhoun, 34 F.3d 1291, 1297 (5th Cir.1994). In
order to impose Section 1927 sanctions, there must “be evidence of bad faith, improper motive, or
reckless disregard of the duty owed to the court.” Edwards v. Gen. Motors Corp., 153 F.3d 242, 246
(5th Cir. 1998). The liability created under Section 1927 is reserved only for excessive costs,
expenses and attorneys’ fees “incurred because of the attorney’s unreasonable and vexatious
multiplication of the proceedings.” Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991). The
Fifth Circuit has advised courts to sparingly impose punishment under Section 1927. Meadowbriar
Home for Children, Inc. v. Gunn, 81 F.3d 521, 535 (5th Cir. 1996) (quoting F.D.I.C. v. Calhoun, 34
F.3d 1291, 1297 (5th Cir. 1994)). Having considered the foregoing, the Court determines that
Defendants’ request for fees under Section 1927 is not warranted and is therefore denied.
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CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment [D.E. 84] is
GRANTED with respect to Plaintiff’s Section 553 claim and DENIED as moot with respect to
Plaintiff’s Section 605 claim. Furthermore, Defendants’ request for fees under Section 1927 is
DENIED.
SO ORDERED, this 26th day of March, 2015.
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PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
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