J&J Sports Productions, Inc. v. Monclova Food Services, Inc. et al
Filing
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MEMORANDUM ORDER AND OPINION granting 13 MOTION for Summary Judgment. The pltf shall prepare Final Judgment consistent with this Memorandum. (Signed by Judge Kenneth M. Hoyt) Parties notified.(dpalacios, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
VS.
MONCLOVA FOOD SERVICES, INC.; dba
PAPARRUCHOS MEXICAN
RESTAURANT, et al,
Defendants.
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CIVIL ACTION NO. H-11-3704
MEMORANDUM ORDER AND OPINION
I.
Introduction
Pending before the Court is the plaintiff, Joe Hand Promotions, Inc.’s, motion for
summary judgment (Docket Entry No. 13). However, the defendants, Monclova Food Services,
Inc., et. al, have failed to file a response or otherwise object to the plaintiff’s evidence and its
motion for summary judgment. Nevertheless, after having carefully reviewed the motion, the
record and the applicable law, the Court grants the plaintiff’s motion.
II.
Factual Background
This case concerns a dispute over the amount of money to which the plaintiff is entitled
due to an alleged willful misappropriation of the plaintiff’s closed-circuit telecast. The plaintiff is
the broadcast licensee of the closed-circuit telecast of the “Unstoppable”: Kelly Pavlik v.
Bernard Hopkins Light Heavyweight Championship Fight Program, including undercard or
preliminary bouts (“the Event”) on October 18, 2008. The Event was neither intended for, nor
readily accessible by, the general public because its transmission was electronically coded.
Private individuals or commercial establishments contracted with the plaintiff to purchase, at
different prices, access to the Event. The defendants are Monclova Food Services, Inc., and
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Rodrigo Antonio Salas. On October 18, 2008, the defendants displayed the Event to at least 200
patrons in its establishments on five televisions including one big screen projection television.
Had the defendant paid the commercial licensing price, it would have paid $1,800. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
III.
The Plaintiff's Contentions
The plaintiff contends that the defendants willfully misappropriated the plaintiff’s
licensed exhibition of the Event, and that they violated the Federal Communications Act of 1934,
as amended, 47 U.S.C. §§ 553 and 605. They assert that the Communications Act is a strict
liability statute, and that the defendants have not pled the affirmative defense of innocent
infringer in its answer. As a result, the plaintiff seeks a variety of statutory damages and
injunctive relief. The defendants have failed to respond.
IV.
Standard of Review
Federal Rule of Civil Procedure 56 authorizes summary judgment against a party who
fails to make a sufficient showing of the existence of an element essential to that party’s case and
on which that party bears the burden at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant
bears the initial burden of “informing the Court of the basis of its motion” and identifying those
portions of the record “which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323; see also, Martinez v. Schlumber, Ltd., 338 F.3d 407, 411 (5th
Cir. 2003). Summary judgment is appropriate if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
If the movant meets its burden, the burden then shifts to the nonmovant to “go beyond the
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pleadings and designate specific facts showing that there is a genuine issue for trial.” Stults v.
Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V Risan, 45 F.3d 951,
954 (5th Cir. 1995); Little, 37 F.3d at 1075). “To meet this burden, the nonmovant must ‘identify
specific evidence in the record and articulate the ‘precise manner’ in which that evidence
support[s] [its] claim[s].’” Stults, 76 F.3d at 656 (quoting Forsyth v. Barr, 19 F.3d 1527, 1537
(5th Cir. 1994), cert. denied, 513 U.S. 871 (1994)). The nonmovant may not satisfy its burden
“with some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075 (internal
quotation marks and citations omitted). Instead, it “must set forth specific facts showing the
existence of a ‘genuine’ issue concerning every essential component of its case.” American
Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (quoting
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
“A fact is material only if its resolution would affect the outcome of the action . . . and an
issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the
[nonmovant].’” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009)
(internal citations omitted). When determining whether the nonmovant has established a genuine
issue of material fact, a reviewing court must construe “all facts and inferences . . . in the light
most favorable to the [nonmovant].” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540
(5th Cir. 2005) (citing Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir. 2003)).
Likewise, all “factual controversies [are to be resolved] in favor of the [nonmovant], but only
where there is an actual controversy, that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at 540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court may not “weigh the evidence or evaluate the
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credibility of witnesses.” Boudreaux, 402 F.3d at 540 (citing Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Septimus v. Univ. of Houston, 399 F.3d 601, 609 (5th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
V.
Analysis and Discussion
The Court determines that the evidence is so one-sided that the plaintiff is entitled to
summary judgment as a matter of law. The Communications Act is a strict liability statute.
Section 5531 addresses receipt of a broadcast via cable, and Section 6052 addresses receipt of
satellite signals. As a strict liability statute the plaintiff need only show that the Event was shown
in the defendant’s establishment without the plaintiff’s authorization. See 47 U.S.C. § 605;
Garden City Boxing Club, Inc. v. Vinson, No. 3:03-CV-0700-BD(P), 2003 U.S. Dist. LEXIS
26180, at *6 (N.D. Tex. Sept. 3, 2003). In this regard, the evidence is undisputed.
While there is some division amongst courts regarding the issue of which section applies,
the Court need not determine whether one or both sections apply, for either way, the Court
determines that the plaintiff is entitled to the relief detailed in the following paragraph. See
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47 U.S.C. § 553 provides, inter alia, that:
No person shall intercept or receive or assist in intercepting or receiving any
communications service offered over a cable system, unless specifically
authorized to do so by a cable operator or as may otherwise be specifically
authorized by law.
47 U.S.C. § 605 reads, in relevant part, that:
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.
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Garden City Boxing Club, Inc., 2003 U.S. Dist. LEXIS 26180, at *10 (“the remedies under
sections 605 and 553 are not cumulative”) (internal citations omitted).
The Court awards the plaintiff statutory damages in the amount of $10,000. The Court
also determines that the defendants’ violation of the Communications Act was willful; therefore,
the Court awards the plaintiff the additional sum of $25,000 pursuant to § 605(e)(3)(c)(ii).
Finally, the Court awards the plaintiff costs and an attorney’s fee of $12,500 for bringing this
action as well as injunctive relief from future violations of the Communications Act.
VI.
Conclusion
Based on the foregoing discussion, the Court GRANTS the plaintiff’s motion and
instructs the plaintiff to prepare Final Judgment consistent with this Memorandum.
It is so Ordered.
SIGNED at Houston, Texas this 16th day of August, 2012.
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Kenneth M. Hoyt
United States District Judge
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