J&J Sports Productions, Inc. v. Little Napoli, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER GRANTING IN PART, DENYING AS MOOT IN PART 17 MOTION for Summary Judgment .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
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Plaintiff,
vs.
LITTLE NAPOLI, INC., et al.,
Defendants.
CIVIL ACTION H-13-1237
MEMORANDUM OPINION & ORDER
Pending before the court is plaintiff J&J Sports Productions, Inc.’s (“J&J”) motion for
summary judgment against defendants Little Napoli, Inc. (“Little Napoli”) and Mike Azayed
(“Azayed”) (collectively “the defendants”).1 Dkt. 17. Defendants have not filed a response and,
therefore, J&J’s motion will be deemed unopposed. See S.D. TEX . L.R. 7.4. After considering the
motion, record, and applicable law, the court is of the opinion that J&J’s motion for summary
judgment (Dkt. 17) should be GRANTED.
I. BACKGROUND
On April 22, 2010, J&J bought the sublicensing rights to provide commercial establishments
with the closed-circuit telecast of the Floyd “Money” Mayweather, Jr. v. Shane Mosely
Championship Fight Program, including undercard and preliminary bouts (“The Event”). Dkt. 17,
Ex. A-1 (licensing agreement). On May 1, 2010, Little Napoli exhibited the Event in its commercial
establishment without paying J&J the required licensing fee. Dkt. 17, Exs. A-2 (affidavit of Bobby
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Little Napoli, Inc. was sued individually and d/b/a Little Napoli, Little Napoli, Inc., and
Little Napoli Ristorante Italiano & Bar. Dkt. 1 (complaint) at 1. Mike Azayed, also known as
Hasan Azayed or Hasan Zayed, was sued individually and d/b/a Little Napoli, Little Napoli, Inc., and
Little Napoli Ristorante Italiano & Bar. Id.
Jean Solis), D (requests for admissions). Azayed owned and managed Little Napoli on the date it
exhibited the Event. Dkt. 17, Ex. E.
J&J filed suit against defendants on April 30, 2013. Dkt. 1. On March 21, 2014, J&J served
defendants with requests for admissions, to which defendants did not respond. Dkt. 17, Exs. D, E.
J&J now requests that the court grant summary judgment in its favor on its claims under §§ 553 and
605 of the Federal Communications Act (“FCA”). 47 U.S.C. §§ 553, 605. As a result of the alleged
violations, J&J seeks statutory damages, additional damages, an injunction, and attorneys’ fees
pursuant to §§ 553 and 605. Id.
II. LAW & ANALYSIS
A. Legal Standard
Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” FED . R. CIV . P.
56(c); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir. 2008). The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; there must be an absence of any genuine dispute of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505 (1986). A
dispute is “material” if its resolution could affect the outcome of the action. Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007). “[A]nd a fact is genuinely
in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc.
v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006).
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“[I]f the movant bears the burden of proof on an issue . . . he must establish beyond
peradventure all of the essential elements of the claims or defenses to warrant judgment in his
favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). The court must review all
of the evidence in the record, making no credibility determinations or weigh any evidence,
disregarding all evidence favorable to the moving party that the jury is not required to believe, and
giving credence to the evidence favoring the non-moving party as well as to the evidence supporting
the moving party that is uncontradicted and unimpeached. Moore v. Willis Ind. Sch. Dist., 233 F.3d
871, 874 (5th Cir. 2000); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
A motion for summary judgment may be based on admissions that are deemed admitted as a matter
of law due to the failure of a party to respond or object to the requests. See Dukes v. S.C. Ins. Co.,
770 F.2d 545, 549 (5th Cir. 1985).
B. Liability Under § 605
Section 605 of the FCA provides that “[n]o person . . . 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
. . . .” 47 U.S.C. § 605(a). J&J may bring a private right of action under § 605 to obtain statutory
damages. See § 605(d)(6), (e)(3)(C)(ii). To establish liability under § 605, a strict liability statute,
J&J need only prove (1) that the Event was exhibited in Little Napoli’s restaurant and (2) J&J did
not authorize the particular exhibition of the Event. See Garden City Boxing Club, Inc. v. Vinson,
No. 3.03-CV-0700-BD(P), 2003 WL 22077958, at *3 (N.D. Tex. Sept. 3, 2003); Joe Hand
Promotions, Inc., v. Lee, No. H-11-2904, 2012 WL 1909348, at *3 (S.D. Tex. May 24, 2012).
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Moreover, § 605 applies to unauthorized interceptions of signals through radio or satellite, but not
cable communications. See J&J Sports Prods., Inc. v. Mandell Family Ventures, L.L.C., 751 F.3d
346, 351 (5th Cir. 2014).
To date, defendants have not served J&J with any responses to J&J’s requests for admissions.
Thus, the admissions will be deemed admitted as a matter of law. FED . R. CIV . P. 36(a)(3); see also
Hulsey v. Texas, 929 F.2d 168, (5th Cir. 2008) (“[A] matter in a request for admissions is admitted
unless the party to whom the request is directed answers or objects to the matter within 30 days.”).
Here, the facts are undisputed that Little Napoli exhibited the Event in its commercial establishment
on May 1, 2010. Not only did J&J provide an affidavit of an investigator who viewed the Event in
the establishment, Little Napoli has also admitted that it exhibited the Event on May 1, 2010. Dkt.
17, Exs. A-2, D. It is also undisputed that J&J did not authorize Little Napoli to exhibit the Event
in its establishment because Little Napoli did not pay the required licensing fee. Dkt. 17, Ex. D.
Furthermore, Little Napoli has admitted that it intercepted satellite signals to show the boxing match
to its customers. Id.
Regarding Azayed’s individual liability under § 605, J&J may hold him vicariously liable
if it demonstrates that Azayed (1) had a right and ability to supervise the exhibition, and (2) had a
direct financial interest in the exploitation. See J & J Sports Prods., Inc. v. Q Café, Inc., No. 3:10CV-02006-L, 2012 WL 215282 at *4 (N.D. Tex. Jan. 25, 2012). Here, Azayed has admitted that he
had a right to supervise the exhibition at Little Napoli that evening. Dkt. 17, Ex. D. Azayed has also
admitted to having a financial interest in the exhibition. Id. Therefore, because Azayed supervised
the exhibition of the Event and had a direct financial interest in its showing, Azayed is individually
liable under § 605. In short, because both defendants failed to respond to J&J’s motion and no
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genuine dispute of material fact has been shown, J&J’s motion for summary judgment as to its
claims under § 605 is GRANTED.
C. Liability under § 553
J&J also seeks relief under § 553. However, the court need not determine whether § 553
applies here because J&J cannot recover under both statutes. See Entm't by J & J, Inc. v. Al-Waha
Enters, Inc., 219 F. Supp. 2d 769, 775 (S.D. Tex. 2002) (“Recovery generally is not available under
both provisions.”); Garden City Boxing Club, Inc. v. Vinson, No. 3-03-CV-0700-BD(P), 2003 WL
22077958 at *3 (N.D. Tex. Sept. 3, 2003). Because J&J prevailed on its § 605 claims, its motion
for summary judgment as to its claims under § 553 is DENIED AS MOOT.
D. Damages
In J&J’s motion for summary judgment, J&J asks the court to award $10,000 in statutory
damages and $50,000 in enhanced damages for willful conduct. Section 605(e)(3)(c)(i)(II) provides
a minimum award of $1,000 and a maximum award of $10,000 for statutory damages. Additionally,
§ 605(e)(3)(c)(ii) provides that if the court finds that the defendant acted willfully and for the
purpose of private financial gain, the court may increase the damages by no more than $100,000.
§ 605(e)(3)(c)(ii). Because defendants have admitted to acting willfully for the purposes of private
financial gain, the court may award enhanced damages in this case. Dkt. 17, Exs. D, E.
To compensate J&J for the violation of § 605, the court finds that the requested statutory
maximum of $10,000 is appropriate here. J&J has produced evidence that it would have charged
an establishment the size of Little Napoli $6,200 to exhibit the Event. Dkt. 17, Ex. A-2, D. An
additional $3,800 is reasonable for statutory damages to deter future violations. Moreover, the
enhanced damages for the defendants’ willful conduct warrants a finding that J&J’s request for
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$50,000 is a reasonable amount. See Joe Hand Promotions, Inc. v. Chapa, No. H-08-422, 2009 WL
2215124 at *3 (S.D. Tex. July 22, 2009) (awarding $50,000 for willful conduct under § 605).
Through the affidavit of Thomas P. Riley, J&J has effectively explained the impact that illegal
exhibitions have on its business. Dkt. 17, Ex. A. Therefore, as to the defendants’ § 605 violations,
the court awards $60,000 in total damages, jointly and severally against both defendants.
E. Attorneys’ Fees, Costs, and Permanent Injunction
Because the court finds defendants liable under § 605, the statute further requires the
defendants to compensate J&J for its reasonable attorneys’ fees. 47 U.S.C. § 605(e)(3)(B)(iii). J&J
argues that an award of $20,000 in attorneys’ fees would be reasonable, or in the alternative, J&J
seeks $3,750 for fifteen hours of work at $250 per hour. Dkt. 17, Ex. B. Based on the affidavit of
David M. Diaz, an hourly rate of $250 is reasonable in this case. Id. Therefore, the court awards
$3,750 in attorneys’ fees and full costs under § 605(e)(3)(B)(iii). J&J further asks this court to award
conditional attorneys’ fees for the occurrence of specific events.2 Dkt. 17, Ex. B. The court agrees
with J&J that it should receive conditional attorneys’ fees. Lastly, § 605(e)(3)(B)(ii) permits the
court to grant a permanent injunction to prohibit intercepting unauthorized programs. The court
finds that a permanent injunction is appropriate here to enjoin defendants from engaging in future
violations.
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J&J moves for an award of $10,000 in the event that the defendant or defendants file(s) a motion to vacate,
Rule 60 motion, motion for new trial, motion for reconsideration or other post-judgment, pre-appeal motion that does
not result in a reversal of the judgment obtained in the action; $15,000 in the event that a defendant files an appeal to
the Fifth Circuit Court of Appeals that does not result in a reversal of the judgment obtained in this action; $5,000 for
making and/or responding to the defendant or defendants’ petition for certiorari to the U.S. Supreme Court that does not
result in a reversal of the judgment obtained in this action; $10,000 for an appeal to the U.S. Supreme Court in the event
the the defendant or defendants’ petition for certiorari is granted and does not result in a reversal of the judgment
obtained in this action; $2,500 for collection of the judgment rendered in this case, should plaintiff obtain a writ of
execution, writ of garnishment, writ of attachment, or other process.
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III. CONCLUSION
In conclusion, the court finds that J&J has provided sufficient summary judgment evidence
to conclusively prove liability under § 605 of the FCA, and that defendants have failed to create a
genuine dispute of material fact to preclude summary judgment. Further, because the court finds
liability under § 605, J&J cannot recover under § 553. Accordingly, J&J’s motion for summary
judgment (Dkt. 17) is GRANTED IN PART & DENIED AS MOOT IN PART. The court will
issue a separate final judgment consistent with this order.
It is so ORDERED.
Signed at Houston, Texas on July 22, 2014.
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Gray H. Miller
United States District Judge
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