J&J Sports Productions, Inc. v. Puente et al
Filing
16
MEMORANDUM AND OPINION granting in part and denying in part 9 J&J Sports Productions, Inc. MOTION for Summary Judgment and denying 10 Defendants' MOTION for Summary Judgment.(Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
VS.
GUSTAVO ADOLFO PUENTE d/b/a EL
MEZCAL ICE HOUSE, et al,
Defendants.
§
§
§
§
§
§
§
§
§
October 24, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-2117
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Pending before the Court are the parties’ cross motions for summary judgment. The
plaintiff, J&J Sports Productions, Inc. (the “plaintiff”), filed a motion for summary judgment
(Dkt. No. 9), to which the defendants, Gustavo Adolfo Puente (“Puente”), individually and d/b/a
El Mezcal Ice House; and Jose Guillen Guillar (“Guillar”), individually and d/b/a El Mezcal Ice
House (collectively the “defendants”), responded (Dkt. No. 14). The defendants filed a crossmotion for summary judgment (Dkt No. 10), to which the plaintiff responded (Dkt. No. 12).
After having carefully considered the motions, responses, the record and the applicable law, the
Court determines that the plaintiff’s motion should be GRANTED in part and DENIED in part,
and the defendants’ motion should be DENIED.
II.
FACTUAL BACKGROUND
This is a television piracy case. The plaintiff is a distributor of closed-circuit pay-per-
view boxing and special events. The defendants own El Mezcal Ice House (“Establishment”),
located in Houston, Texas. The plaintiff was granted the exclusive nationwide commercial
distribution rights to the Saul Alvarez v. Erislandy Lara championship boxing match, including
1/8
all preliminary bouts (the “Fight”). In turn, the plaintiff granted various commercial entities the
right to exhibit the Fight publicly within their respective commercial establishments under
sublicensing agreements. The plaintiff alleges that on July 12, 2014, the night of the Fight, the
defendants illegally intercepted the closed-circuit telecast, and showed the Fight at their venue
without payment to the plaintiff.
The plaintiff filed suit on July 11, 2017, because of this allegedly impermissible showing
of its programming, which the plaintiff claims is a violation of the Federal Communications Act
of 1934, as amended (the “Communications Act”). It brings claims against the defendants under:
(1) 47 U.S.C. § 605(a) which prohibits interception and publishing radio communication; and (2)
47 U.S.C. § 553, which prohibits interception or reception of any communications service
offered over a cable system. The plaintiff further alleges that the defendants willfully and
intentionally intercepted the program and did so for the purpose of commercial advantage or
private financial gain, warranting enhanced statutory damages.
III.
LEGAL STANDARD AND APPLICABLE LAW
A. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment against a
party who fails to make a sufficient showing of the existence of an element essential to the
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 where “the pleadings, the discovery
2/8
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
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 (citing Forsyth v. Barr, 19 F.3d 1527,
1537 (5th Cir.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed.2d 127 (1994)). It 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, Intern., 343 F.3d 401, 405 (5th Cir. 2003)
(citing 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 a genuine issue of material fact has been
established, a reviewing court is required to 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.
3/8
2003)). 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 Hous., 399 F.3d 601, 609
(5th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 – 52, (1986)).
B. The Communications Act
Section 553 provides 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. § 553.
Section 605 provides 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.
47 U.S.C. § 605(a).
IV.
ANALYSIS AND DISCUSSION
A. The Defendants’ Motion
The plaintiff filed the instant suit nearly three years after the alleged violation occurred.
The alleged violation occurred on July 12, 2014, and the instant suit was filed on July 11, 2017.
The defendants argue that the applicable statute of limitations is two years for the plaintiff’s
claims, arguing that the Court should apply Texas’ two-year statute of limitations for conversion.
(Citing J&J Sports Prods., Inc. v. JWJ Mgmt., Inc., 324 S.W.3d 823 (Tex.App. 2010.)). The
general rule provides that state law supplies the applicable period, but under a narrow exception,
federal law applies if the state law period would frustrate the application of national policies.
4/8
See N. Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S. Ct. 1927, 132 L. Ed. 2d 27 (1995).
Although the Fifth Circuit concluded that conversion was the closest state law equivalent, it
ultimately adopted the limitations period from the Copyright Act, which is three years. See
Prostar v. Massachi, 239 F.3d 669, 677-78 (5th Cir. 2001). This Court is, of course, bound by
Fifth Circuit precedent. Therefore, the Court finds that the plaintiff brought this action within
the three-year statutory period, and thus its claims are not barred by the statute of limitations.
The defendants’ motion is denied.
B. The Plaintiff’s Motion
i. Liability under Section 605 of the Communications Act
To establish liability under § 605, a strict liability statute, the plaintiff must prove: (1)
that the Fight was exhibited in the bar; and (2) the plaintiff did not authorize the exhibition of the
Fight. Further, § 605 applies to unauthorized interceptions of signals through radio or satellite,
but not cable communications. See J&J Sports Prod., Inc. v. Mandell Family Ventures, L.L.C.,
751 F.3d 346, 351 (5th Cir. 2014).
The Communications Act expressly provides for individual liability upon satisfaction of
the previously stated elements, as is present in this case. See 47 U.S.C. § 605(a). The holder of
an establishment’s Texas Alcoholic Beverage Commission license (“TABC license”) is
responsible for all portions of that establishment, including the televisions and the actions of any
employees. TEX. ALCO. BEV. CODEE § 109.53. An exception to this rule exists when the
license holder receives permission to designate an area of the establishment as separate from the
licensed portion of the premises. TEX. ALCO. BEV. CODEE §§ 11.49(b)(1), 11.49(b)(2).
It is undisputed that the defendants held the TABC license for the Establishment,
specifically, Guillar who is the named permit holder. Furthermore, both individual defendants
5/8
were in control of the actions of all employees the night of the Fight. The defendants have not
offered any evidence in contravention of the evidence proffered by the plaintiff as to their
individual liability. Moreover, the defendants have not raised a genuine issue of material fact to
preclude the Court from granting the plaintiff’s motion. Accordingly, the plaintiff’s motion for
summary judgment as to its claims under 47 USC § 605 is granted.
ii. Liability under Section 553 of the Communications Act
Because the plaintiff cannot recover under both sections of the Communications Act and
it has prevailed on its § 605 claims, the Court does not address the applicability of § 553 to this
case. See J&J Sports Prod., Inc. v. Little Napoli, Inc., No. CIV.A. H-13-1237, 2014 WL
3667903, at *1 (S.D. Tex. July 22, 2014). Thus, the plaintiff’s motion as to its claims under §
553 is denied as moot.
C. Damages
The Communications Act provides guidance for successful plaintiffs to recover statutory
damages once liability has been established. See 47 U.S.C. § 605(e)(3)(C)(i)(II). Plaintiffs may
recover a statutory minimum of $1,000 and a maximum of $10,000 per violation, as well as costs
and attorney’s fees. See 47 U.S.C. § 605(e)(3)(B)(iii), (C)(i)(II). Supplementary damages up to
$100,000 are accessible for plaintiffs who can prove that the defendant’s actions were willful and
committed for commercial advantage or financial gain. See 47 U.S.C. § 605(e)(3)(C)(ii). The
Communications Act grants courts discretion in awarding additional damages that “the court
considers just.” Id. In addition, the Communications Act authorizes courts to grant injunctive
relief to aggrieved plaintiffs. See 47 U.S.C. § 605(e)(3)(B)(I).
The plaintiff requests the Court to award it statutory damages of $10,000 and additional
damages of $50,000 for the defendants’ willful violation, attorney’s fees in the amount of one-
6/8
third of its recovery (or in the alternative based on an hourly rate), and costs and post-judgment
interest at the highest lawful rate. In their defense, the defendants argue that minimal damages
are appropriate, contending that there is no evidence that they committed a willful violation for
commercial advantage or private financial gain, citing to case law where similar situated
defendants were ordered to pay nominal damages.
The Court finds the plaintiff’s request of $10,000 in statutory damages is reasonable, but
the Court will not award additional damages. Given the Establishments’ capacity, their licensing
fee to air the Fight would have been $1,400.00. The defendants did not charge a cover on the
night of the Fight, they did not advertise that they would be showing the Fight, they did not
charge a premium for food or drinks, only 15 patrons were at the Establishment while the Fight
was being shown, and the defendants are not repeat offenders. Based on these facts, the Court
finds that statutory damages in the amount $10,000 are reasonable and will also serve as a
deterrent to prevent future violations of the Communications Act. The Court further finds that
the defendants’ actions were not sufficiently egregious to subject them to additional damages.
Lastly, the Court finds that an award of attorney’s fees based on an hourly rate is
appropriate. The plaintiff attaches an affidavit of attorney David M. Diaz (“Diaz”) in support of
its request for attorney’s fees. Diaz testifies that his firm has handled or is in the process of
handling thousands of anti-piracy cases throughout Texas, and that a minimum of eight hours has
been spent in this case through the preparation of the plaintiff’s motion for summary judgment.
Diaz further testifies that a rate of $250 per hour is reasonable for this litigation, given his own
experience and his firm’s experience handling anti-piracy litigation. Considering the proffered
evidence and in accordance with the lodestar method, the Court finds that $250 per hour for eight
hours of billable work on this litigation is reasonable.
7/8
V.
CONCLUSION
For the foregoing reasons, judgment is hereby entered in the amount of $10,000.00 in
statutory penalties, $2,000.00 in attorney’s fees, post-judgment interest at the effective rate on
date of entry of judgment, and costs pursuant to § 605(e)(3)(B)(iii). A separate final judgment
will issue. Accordingly, it is therefore, ORDERED, ADJUDGED and DECREED that the
plaintiff’s motion for summary judgment is GRANTED in part and DENIED in part, and the
defendants’ motion for summary judgment is DENIED.
It is so ORDERED.
SIGNED on this 24th day of October, 2018.
___________________________________
Kenneth M. Hoyt
United States District Judge
8/8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?