Federation of State Massage Therapy Boards v. Mendez Master Training Center, Inc. et al

Filing 137

Memorandum and Order Adopting Magistrate Judge's 134 Report and Recommendations, granting 111 Plaintiff's MOTION for Partial Summary Judgment; denying 116 Defendant's Cross-Motion for Summary Judgment.( Mediation due by 5/21/2019. Joint Pretrial Order due by 6/4/2019. Docket Call set for 6/18/2019 at 02:30 PM in Courtroom 9F before Judge Nancy F Atlas)(Signed by Judge Nancy F Atlas) Parties notified.(rguerrero, 4)

United States District Court
Southern District of Texas

ENTERED
May 07, 2019

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FEDERATION OF STATE
MASSAGE THERAPY BOARDS,
Plaintiff,
v.
MENDEZ MASTER TRAINING
CENTER, INC., et al.,
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-02936

MEMORANDUM AND ORDER
ADOPTING MAGISTRATE JUDGE’S
RECOMMENDATION
On February 8, 2019, the Court referred all motions and other pretrial matters
in this case to United States Magistrate Judge Dena Palermo pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B). Order of Referral of All Matters [Doc. # 124]. On March
26, 2019, Magistrate Judge Palermo issued a Order and Report and
Recommendation on Cross Motions for Partial Summary Judgment (“R&R”) [Doc.
# 134], recommending that this Court grant Plaintiff Federation of State Massage
Therapy Board’s (“FSMTB”) Motion for Partial Summary Judgment [Doc. # 111],
and deny Defendant’s Cross-Motion for Summary Judgment [Doc. # 116].

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Defendants filed timely Objections to the R&R,1 to which FSMTB filed a
response.2 Defendants have not filed a reply and their time to do so has expired.3
The Court has reviewed the R&R, the evidence submitted in connection with the
summary judgment motions, and the parties’ briefing in connection with the
summary judgment motions and with Defendants’ Objections. The Court has also
reviewed the applicable legal authorities. The Court’s review of the R&R is de novo.
See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1); Funeral Consumers All., Inc. v.
Serv. Corp. Int’l, 695 F.3d 330, 347 (5th Cir. 2012).4
Defendants first argues that a factual dispute exists over whether Defendants’
infringement of FSMTB’s copyright was intentional. The Court is unpersuaded. As

1

Defendants Mendez Master Training Center, Inc., MMTC Texas, Inc., Tesla Shen
Mendez (f/ka Yi Ling “Elaine” Mendez), and Jorge Mendez’s Objections to
Findings and Recommendations Re Motion for Partial Summary Judgment
(“Objections”) [Doc. # 135].

2

Plaintiff’s Response to Defendants’ Objections to Findings and Recommendations
Re Motion for Partial Summary Judgment (“Response”) [Doc. # 136].

3

See Hon. Nancy F. Atlas, Court Procedures and Forms, R.7(A)(4).

4

A court need only conduct de novo review of those portions of the magistrate judge’s
report to which objection is made. Funeral Consumers All., Inc. v. Serv. Corp. Int’l,
695 F.3d 330, 347 (5th Cir. 2012). “It is reasonable to place upon the parties the
duty to pinpoint those portions of the magistrate’s report that the district court must
specially consider.” Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982),
overruled on other grounds by Douglass v. U.S. Auto. Ass’n, 79 F.3d 1415 (5th Cir.
1996). “Parties filing objections must specifically identify those findings objected
to. Frivolous, conclusive or general objections need not be considered by the district
court.” Id. at 410 n.8.
2

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the Magistrate Judge Palermo correctly observed, copyright infringement is a strict
liability tort and willfulness is only relevant to the court’s discretionary
determination of whether to enhance or reduce damages after liability is established.
See Guzman v. Hacienda Records & Recording Studio, Inc., No. 6-12-CV-42, 2014
WL 6982331, at *5 n.9 (S.D. Tex. Dec. 9, 2014) (Costa, J.) (“Courts have observed
that ‘copyright infringement is a strict liability tort,’ but only to indicate that
plaintiffs do not need to prove a defendant’s mental state to prosecute a copyright
claim.” (quoting Educ. Testing Serv. v. Simon, 95 F. Supp. 2d 1081, 1087 (C.D. Cal.
1999))), aff’d, 808 F.3d 1031 (5th Cir. 2015); Cullum v. Diamond A Hunting, Inc.,
No. SA-07-CV-0076 FB (NN), 2010 WL 3655863, at *3 (W.D. Tex. Sept. 13, 2010)
(“[I]ntent or knowledge is not an element of infringement . . . .”), report and
recommendation adopted in part and rejected in part on other grounds, No. SA-07CA-76-FB, 2010 WL 5817541 (W.D. Tex. Dec. 22, 2010); Educ. Testing Serv. v.
Miller, No. CIV. A. 88-2819(RCL), 1991 WL 212181, at *4 (D.D.C. Sept. 30, 1991)
(Lamberth, J.) (holding that defendant’s “claim that he did not intend to violate
[plaintiff’s] copyright is no defense to infringement”). Because FSMTB does not
move for summary judgment on damages, Defendants’ mental state is not relevant
at this stage.
Defendants next argue that FSMTB’s copyright and breach of contract claims
are subject to a viable defense of illegality based on language discrimination.
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Defendants also assert that FSMTB engaged in antitrust violations, establishing a
viable defense to FSMTB’s copyright infringement claims. Defendants did not raise
these arguments in their original summary judgment briefing, and the arguments are
not properly before the Court. See McPeak-Torres v. Texas, No. CV G-12-075, 2015
WL 12748276, at *1 (S.D. Tex. Jan. 22, 2015) (Costa, J.) (“Because Defendants are
not entitled to raise arguments for the first time in their objections to the Magistrate
Judge’s Report and Recommendation that were not asserted in their Motion, these
new arguments are not properly before the Court for consideration.” (citing Freeman
v. County of Bexar, 142 F.3d 848, 851 (5th Cir. 1998); Cupit v. Whitley, 28 F.3d 532,
535 n.5 (5th Cir. 1994); and Paterson–Leitch Co., Inc. v. Mass. Mun. Wholesale
Elec., Inc., 840 F.2d 985, 990-91 (1st Cir. 1988))).
The Court, based on its de novo review, agrees fully with Magistrate Judge
Palermo’s R&R. The R&R will be adopted as this Court’s Memorandum and Order.
Accordingly, it is hereby
ORDERED that Defendants’ Objections [Doc. # 135] to the R&R are
OVERRULED. It is further
ORDERED that the Magistrate Judge’s Report and Recommendation on
Cross Motions for Partial Summary Judgment (“R&R”) [Doc. # 134] is ADOPTED
as the Court’s Memorandum and Order. It is further

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ORDERED that Plaintiff’s Motion for Partial Summary Judgment [Doc.
# 111] is GRANTED. It is further
ORDERED that Defendant’s Cross-Motion for Summary Judgment [Doc.
# 116] is DENIED. It is further
ORDERED that on or before May 21, 2019, the parties must engage in
mediation. It is further
ORDERED that the parties must file on or before June 4, 2019, a Revised
Joint Pretrial Order. It is further
ORDERED that Docket Call is set for June 18, 2019, at 2:30 p.m.
SIGNED at Houston, Texas, this 7th day of May, 2019.
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NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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