Joe Hand Promotions, Inc. v. Nasir Mahmood et al

Filing 39

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
July 31, 2019

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
SNP HOOKAH LOUNGE AND
GRILL LLC, et al.,
Defendants.

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David J. Bradley, Clerk

CIVIL ACTION NO. 4:18-01666

MEMORANDUM AND ORDER
Before the Court in this anti-piracy lawsuit is Plaintiff Joe Hand Promotions,
Inc.’s (“Joe Hand”) Motion for Summary Judgment and Supporting Brief (“Motion
for Summary Judgment” or “Motion”) [Doc. # 34] seeking judgment against
Defendants Mohd Azeem Nasir Mahmood, Muhammad Alam Millu, and Nasir
Mahmood (collectively, the “Individual Defendants”). The Individual Defendants
have not filed a response, and their time to do so has expired. 1 The Motion is ripe
for decision.

Based on Joe Hand’s briefing, relevant matters of record, and

pertinent legal authority, the Court grants Joe Hand’s Motion for Summary
Judgment.

1

See S.D. Texas Loc. R. 7.3; Hon. Nancy F. Atlas, Court Procedures and Forms,
R.7(A)(4).

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I.

BACKGROUND
Plaintiff Joe Hand initiated this lawsuit on May 30, 2018, against Defendant

SNP Hookah Lounge and Grill LLC (“SNP Hookah”) and the Individual
Defendants.2 Joe Hand alleges that all Defendants engaged in the unauthorized
and illegal interception and/or receipt and exhibition of the Ultimate Fighting
Championship® 205: Alvarez vs. McGregor broadcast on November 12, 2016 (the
“Event”) at their establishment known as SNP Hookah Lounge in Houston, Texas
(the “Establishment”).3 Joe Hand asserts claims for satellite and cable piracy under
the Federal Communication Act, 47 U.S.C. §§ 553 and 605.
On February 6, 2019, Joe Hand served the Individual Defendants with
Requests for Admission.4 To date, Defendants have not responded to the Requests.
On February 21, 2019, the Court entered a Default Judgment [Doc. # 30] in
favor of Joe Hand against SNP Hookah for its violation of 47 U.S.C. § 605. The
Court awarded statutory damages under § 605(e)(3)(C)(i)(II) in the amount of
2

Complaint [Doc. # 1].

3

Amended Complaint [Doc. # 4].

4

Plaintiff’s First Set of Requests for Admission to Defendant, Mohd Azeem Nasir
Mahmood (“Requests for Admission to Mohd Azeem Nasir Mahmood”) [Doc.
# 36-3]; Plaintiff’s First Set of Requests for Admission to Defendant, Muhammad
Alam Millu (“Requests for Admission to Muhammad Alam Millu”) [Doc. # 36-4];
Plaintiff’s First Set of Requests for Admission to Defendant, Nasir Mahmood
(“Requests for Admission to Nasir Mahmood”) [Doc. # 36-5].

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$5,000 and additional damages under § 605(e)(3)(C)(ii) in the amount of $20,000,
plus interest, costs, and reasonable attorney fees.
Joe Hand seeks the entry of summary judgment that all Defendants are
jointly

and

severally

liable

for:

$5,000

in

statutory

damages

under

§ 605(e)(3)(C)(i)(II); $20,000 in additional damages under § 605(e)(3)(C)(ii);
$1,075.00 in costs; attorney fees; and post-judgment interest.
II.

LEGAL STANDARDS
A.

Summary Judgment

Under Federal Rule of Civil Procedure 56, “[a] party may move for
summary judgment, identifying each claim or defense—or the part of each claim or
defense—on which summary judgment is sought.”

FED. R. CIV. P. 56(a).

Summary judgment on a claim or part of a claim is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Seacor Holdings, Inc. v. Commonwealth
Ins. Co., 635 F.3d 675, 680 (5th Cir. 2011) (quoting FED. R. CIV. P. 56(a)).
Where, as here, the movant would bear the burden of proof at trial, the
movant “must establish beyond peradventure all of the essential elements of the
claim or defense to warrant judgment in [its] favor.” See Fontenot v. Upjohn Co.,
780 F.2d 1190, 1194 (5th Cir. 1986) (first alteration in original). As a party
asserting that certain facts cannot be genuinely disputed, Joe Hand “has the initial
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responsibility of informing the court of the basis for its motion and identifying
those portions of the pleadings and materials in the record, if any, which it believes
demonstrate the absence of a genuine [dispute] of material fact.” See Deutsche
Bank Nat’l Tr. Co. v. Cardona, No. 7:16-CV-448, 2017 WL 2999272, at *1 (S.D.
Tex. Apr. 20, 2017). See also FED. R. CIV. P. 56(c)(1). Once the movant meets its
burden, “[t]he burden then shifts to ‘the nonmoving party to go beyond the
pleadings and by her own affidavits [and other competent evidence] designate
specific facts showing that there is a genuine issue for trial.’” Davis v. Fort Bend
County, 765 F.3d 480, 484 (5th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986)).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for
the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
B.

Anti-Piracy Under 47 U.S.C. § 605

Section 605 states that “[n]o person not being authorized by the sender shall
intercept any radio communication and divulge or publish the existence, contents,
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substance, purport, effect, or meaning of such intercepted communication to any
person.” 47 U.S.C. § 605(a). “Section 605 is a strict liability statute.” Innovative
Sports Mgmt., Inc. v. Martinez, No. 4:15-CV-01460, 2017 WL 6508184, at *3
(S.D. Tex. Dec. 19, 2017) (citing Joe Hand Promotions, Inc. v. 152 Bronx, L.P., 11
F. Supp. 3d 747, 753 (S.D. Tex. 2014)). To establish liability, Joe Hand must
show that (1) the Event was exhibited in SNP Hookah Lounge and (2) Joe Hand
did not authorize the particular exhibition of the Event.

See id.; Joe Hand

Promotions, 11 F. Supp. 3d at 753; J & J Sports Prods., Inc. v. Casita Guanajuato,
Inc., No. A-13-CA-824-SS, 2014 WL 1092177, at *1 (W.D. Tex. Mar. 19, 2014).
Persons aggrieved by violations of § 605 are authorized to bring civil suits to
enforce its provisions. See 47 U.S.C. § 605(e)(3)(A). A successful § 605 claimant
may be awarded injunctive relief, damages, and “the recovery of full costs,
including . . . attorneys’ fees.” See id. § 605(e)(3)(B). The prevailing party may
elect to recover their actual damages or statutory damages.

See id.

§ 605(e)(3)(C)(i). If the prevailing party elects to receive statutory damages, the
court may award damages between $1,000 and $10,000 for each violation. See id.
§ 605(e)(3)(C)(i)(I)-(II).

The Court also has discretion to award additional

damages up to $100,00 for violations “committed willfully and for purposes of
direct or indirect commercial advantage or private financial gain.”
§ 605(e)(3)(C)(ii).
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See id.

III.

DISCUSSION
A.

Summary Judgment

Joe Hand seeks summary judgment that all Defendants are jointly and
severally liable under 47 U.S.C. § 605 for pirating Joe Hand’s broadcast.
Defendants have not responded to Joe Hand’s Motion for Summary Judgment and
the Individual Defendants have not responded to Joe Hand’s Requests for
Admission.
A non-movant’s failure to respond does not permit a federal court to grant a
“default” summary judgment. See Innovative Sports Mgmt., 2017 WL 6508184, at
*4 (“[A] federal court may not grant a ‘default’ summary judgment where no
response has been filed.” (quoting Bradley v. Chevron U.S.A., Inc., No. Civ. A.
204CV092J, 2004 WL 2847463, at *1 (N.D. Tex. Dec. 10, 2004)); Brown v. Bank
of Am., No. 3:13-CV-2666-D, 2014 WL 12531162, at *1 (N.D. Tex. Jan. 14, 2014)
(“Plaintiffs’ failure to respond does not, of course, permit the court to enter a
‘default’ summary judgment.”). “Nevertheless, if no response to the motion for
summary judgment has been filed, the court may find as undisputed the statement
of facts in the motion for summary judgment.” Innovative Sports Mgmt., 2017 WL
6508184, at *4. See FED. R. CIV. P. 56(e)(2) (“If a party . . . fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may
. . . consider the fact undisputed for purposes of the motion.”); Eversley v. MBank
6
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Dall., 843 F.2d 172, 173-74 (5th Cir. 1988) (holding the district court properly
“accepted as undisputed the facts so listed in support of [the defendant’s] motion
for summary judgment” when the plaintiff did not file an opposition to the
motion).
Similarly, under Federal Rule of Civil Procedure 36, if a party does not
respond to a request for admission within 30 days, the matter is deemed admitted
and conclusively established. See FED. R. CIV. P. 36(a)(3); Hulsey v. Texas, 929
F.2d 168, 171 (5th Cir. 1991) (“Under [Rule 36], 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.”). “[I]f the requests for admissions concern
an essential issue, the failure to respond to requests for admission can lead to a
grant of summary judgment against the non-responding party.”

Murrell v.

Casterline, 307 F. App’x 778, 780 (5th Cir. 2008) (per curiam) (quoting Dukes v.
S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985)).
Here, Joe Hand has submitted summary judgment evidence, specifically,
affidavits, supporting the essential § 605 elements that (1) the Event was exhibited
in SNP Hookah Lounge,5 and (2) Joe Hand did not authorize the particular

5

UFC Piracy Affidavit [Doc. # 35-5].

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exhibition of the Event.6 See Innovative Sports Mgmt., 2017 WL 6508184, at *4;
Joe Hand Promotions, 11 F. Supp. 3d at 753.
In addition, because the Individual Defendants did not respond, object, or
assert any privileges to Joe Hand’s Requests for Admission, the admissions are
deemed admitted. These admissions further support the essential elements of a
§ 605 claim against the Individual Defendants. The admissions establish that the
Individual Defendants were officers, managers, and owners of SNP Hookah on the
night of the Event; they received a direct financial benefit from the activities of the
Establishment on the night of the Event; they were present and witnessed the
broadcast of the Event at the Establishment; the Establishment was open for
business and was not a residential dwelling on the night of the Event; and neither
the Individual Defendants nor anyone else was authorized by Joe Hand to
broadcast the Event at the Establishment.7
Because Joe Hand submitted admissible summary judgment evidence
satisfying all the essential elements of a § 605 claim, the burden shifts to the
Individual Defendants to present evidence that raises a material question of fact for
6

Affidavit of Joe Hand, Jr. [Doc. # 35-2], ¶ 9.

7

Requests for Admission to Mohd Azeem Nasir Mahmood at 2-4; Requests for
Admission to Muhammad Alam Millu at 2-4; Requests for Admission to Nasir
Mahmood at 2-4.

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trial. See Davis, 765 F.3d at 484. The Individual Defendants did not respond to
the Motion and thus have not met their burden. See FED. R. CIV. P. 56(e)(2). The
Court accordingly grants summary judgment in favor of Plaintiff and will award
appropriate damages, attorney fees, and costs against the Individual Defendants.
See 47 U.S.C. § 605(e)(3)(B)(iii) (“The Court . . . may award damages . . . and . . .
shall direct the recovery of full costs, including awarding reasonable attorneys’
fees to an aggrieved party who prevails” on a claim under § 605).
B.

Damages

Under § 605(e)(3)(C)(i)(II), the court may award damages between $1,000
and $10,000 for each violation. See 47 U.S.C. § 605(e)(3)(C)(i)(I)-(II). The Court
also has discretion to award additional damages up to $100,000 for willful
violations under 47 U.S.C. 605(e)(3)(C)(ii). Joe Hand seeks statutory damages in
the amount of $5,000 under 47 U.S.C. § 605(e)(3)(C)(i)(II) and additional damages
of $20,000 under 47 U.S.C. § 605(e)(3)(C)(ii).
After a careful review of Joe Hand’s evidence, which details the types of
damages that Joe Hand has suffered, including loss of existing and potential
customers, loss of sublicense fees, financial loss, loss of good will, and loss of

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reputation,8 the Court finds that an award of $5,000 in statutory damages is
appropriate.
Furthermore, the Court concludes damages for a willful violation are
appropriate because there is no genuine dispute that the Individual Defendants had
the purpose and intent to secure financial gain by pirating Joe Hand’s licensed
exhibition. The Court concludes that an award of additional damages of $20,000 is
appropriate, in light of both the apparent small scale of the exhibition and the
importance of deterring violations of § 605. See Innovative Sports Mgmt., 2017
WL 6508184, at *5 (awarding $24,000 in additional damages based on the small
scale of exhibition and the importance of deterring violations of § 605).
C.

Attorney Fees

In the Fifth Circuit, “[t]he first step in determining statutorily authorized
attorneys’ fees is to calculate a ‘lodestar’ amount.” McClain v. Lufkin Indus., Inc.,
519 F.3d 264, 284 (5th Cir. 2008); Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1047 (5th Cir. 1998). There is a “strong presumption” that the lodestar amount—
the product of reasonable hours times a reasonable rate—represents a reasonable
fee. Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013).

8

Affidavit of Joe Hand, Jr. [Doc. # 35-2].

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After calculating the lodestar, “[t]he court must then consider whether the
lodestar should be adjusted upward or downward, depending on the circumstances
of the case and the [12] factors set forth in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974).” McClain, 519 F.3d at 284.9 “The court,
however, may not adjust the lodestar figure based on a Johnson factor already
taken into account during the initial calculation.” Ramirez v. Lewis Energy Grp.,
L.P., 197 F. Supp. 3d 952, 956 (S.D. Tex. 2016).
“The fee applicant bears the burden of proving that the number of hours and
the hourly rate for which compensation is requested is reasonable.” Riley v. City of
Jackson, 99 F.3d 757, 760 (5th Cir. 1996). “A district court must ‘explain with a
reasonable degree of specificity the findings and reasons upon which the award is
based.’” Id. (quoting Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).
Joe Hand seeks $4,150.00 in attorney fees for prosecuting this case. For
support, Joe Hand submits the affidavit of its attorney, Jamie King, who avers she

9

“The twelve Johnson factors are: (1) the time and labor involved; (2) the novelty
and difficulty of the questions; (3) the skill requisite to perform the legal services
properly; (4) the preclusion of other employment by the attorney due to this case;
(5) the customary fee; (6) whether fee is fixed or contingent; (7) time limitations;
(8) the amount involved and results obtained; (9) the experience, reputation and
ability of counsel; (10) the undesirability of the case; (11) the nature and length of
the professional relationship with the client; and, (12) awards in similar cases.”
Von Clark v. Butler, 916 F.2d 255, 258 n.3 (5th Cir. 1990) (citing Johnson, 488
F.2d at 717-19).

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worked 16.6 hours on this case and his hourly rate is $250.00.10 Furthermore, Joe
Hand requests post-trial and appellate fees.
The Court concludes that King’s hours previously expended and her billing
rate are reasonable. The Court concludes that no adjustment based on the Johnson
factors is appropriate.
The Court rejects Joe Hand’s request at this time for post-trial and appellate
fees as such a request is “speculative and premature.”

See Innovative Sports

Mgmt., 2017 WL 6508184, at *6. Accordingly, the Court will award Joe Hand
$4,150.00 in attorney fees.
D.

Costs

Under Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute,
[the federal] rules, or a court order provides otherwise, costs—other than attorney’s
fees—should be allowed to the prevailing party.” A district court, however, “may
only award those costs articulated in [28 U.S.C. §] 1920 absent explicit statutory or
contractual authorization to the contrary.” See Mota v. Univ. of Tex. Hous. Health
Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001). Under 28 U.S.C. § 1920, a court may
tax the following costs: (1) fees of the clerk and marshal; (2) fees for printed or
electronically recorded transcripts necessarily obtained for use in the case; (3) fees
10

Affidavit for Attorney’s Fees and Costs (“King’s Affidavit”) [Doc. # 37-1], ¶¶ 5-6.

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and disbursements for printing and witnesses; (4) fees for exemplification and the
costs of making copies of any materials where the copies are necessarily obtained
for use in the case; (5) docket fees under section 1923 of this title; and (6)
compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services. See 28 U.S.C.
§ 1920.
Under 47 U.S.C. § 605(e)(3)(B), a prevailing party is entitled to recovery of
its “full costs.” “While the term, ‘full costs,’ is not defined in the statute, both the
plain meaning of the statutory language and the legislative history of
§ 605(e)(3)(B)(iii) suggest that this term was intended to include expenses other
than ‘taxable costs’” under 28 U.S.C. § 1920. See Kingvision Pay-Per-View Ltd. v.
Autar, 426 F. Supp. 2d 59, 66 (E.D.N.Y. 2006).
Joe Hand seeks $1,075.00 in costs, specifically, $400.00 in filing fees and
$675.00 in connection with retaining a private process server to effectuate service
of process upon Defendants.11
The Court will award Joe Hand requested costs. Joe Hand’s $400.00 for
filing fees is taxable under § 1920 and is thus recoverable. See Jensen v. Lawler,
338 F. Supp. 2d 739, 745 (S.D. Tex. 2004) (“Under § 1920, Jensen can recover her
11

King’s Affidavit ¶ 8.

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filing fee. The statute specifically authorizes the taxing of costs for ‘[f]ees of the
clerk and marshal.’” (quoting 28 U.S.C. § 1920(1)). Joe Hand’s costs associated
with retaining a private process server are not taxable under § 1920. See Baisden
v. I'm Ready Prods., Inc., 793 F. Supp. 2d 970, 975 (S.D. Tex. 2011) (“Because
§ 1920 contains no provision for the cost of private process servers, and because
defendants have not provided any evidence of exceptional circumstances that
required the use of private process servers or any evidence of what the United
States Marshals Service would have charged for the same service, the court
concludes that the amount defendants seek for service of subpoenas by private
process servers is not recoverable under 28 U.S.C. § 1920.”).

Nevertheless,

because Joe Hand is entitled to recover its “full costs,” not merely its taxable costs
under § 1920, the Court will award Joe Hand $675.00 in connection with service of
process. Cf. Kingvision Pay-Per-View, 426 F. Supp. 2d at 67 (concluding “full
costs” under § 605 includes investigative costs); Joe Hand Promotions, Inc. v.
Rascals Cafe, LLC, No. 4:11-2135-TLW, 2012 WL 4762142, at *6 (D.S.C. Aug.
31, 2012) (awarding “investigative costs,” “postage charges,” and “courier
charges” under § 605), report and recommendation adopted, 2012 WL 4762452
(D.S.C. Oct. 5, 2012); J&J Sports Prods., Inc. v. Molina & Reyes Enters., LLC,
No. SA-17-CV-278-XR, 2017 WL 10841353, at *2 (W.D. Tex. Nov. 29, 2017)
(awarding investigative fees).
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IV.

CONCLUSION AND ORDER
Based on Joe Hand’s summary judgment evidence and the Individual

Defendants’ failure to respond to Joe Hand’s Motion or Requests for Admission,
the Court concludes summary judgment in favor of Joe Hand on its claims under
47 U.S.C. § 605 is appropriate.
Based on the Default Judgment against SNP Hookah Lounge and Grill LLC
[Doc. # 30] and summary judgment against the Individual Defendants being
entered in accordance with this Memorandum, all Defendants are jointly and
severally liable for damages, attorney fees, and costs awarded to Plaintiff Joe
Hand. It is hereby
ORDERED that Plaintiff Joe Hand Promotions, Inc.’s Motion for Summary
Judgment and Supporting Brief [Doc. # 34] is GRANTED. It is further
ORDERED that summary judgment is entered in favor of Plaintiff Joe Hand
Promotions, Inc. and against Defendants Mohd Azeem Nasir Mahmood,
Muhammad Alam Millu, and Nasir Mahmood. It is further
ORDERED that the Default Judgment [Doc. # 30] entered on February 21,
2019, in favor of Plaintiff and against Defendant SNP Hookah Lounge and Grill
LLC is incorporated herein. It is further
ORDERED that Plaintiff may recover from Defendants, and Defendant are
jointly and severally liable for, the following:
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• Statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II): $5,000.00;
• Additional damages under 47 U.S.C. § 605(e)(3)(C)(ii): $20,000.00;
• Attorney fees: $4,150.00;
• Costs: $1,075.00;
• Post-judgment interest at a rate of 1.87%.
A final, appealable judgment will separately issue.
SIGNED at Houston, Texas, this ___ day of July, 2019.
31st

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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