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J&J Sports Productions, Inc. v. Mata

United States District Court, D. Nevada

July 20, 2018

J&J SPORTS PRODUCTIONS, INC., Plaintiff
v.
LISA MATA, individually and d/b/a/ Juarez El Paso B Food a/k/a Juarez Border Food; and LVP INTERNATIONAL, LLC, an unknown entity d/b/a/ Juarez El Paso Border Food a/k/a Juarez Border Food, Defendants

          ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING IN PART PLAINTIFF'S MOTION FOR RECONSIDERATION [ECF NOS. 22, 28]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff J&J Sports Productions, Inc. was granted the exclusive distribution rights to the “Toe to Toe” Saul Alvarez v. Alfredo Angulo Light Middleweight Championship Fight Program. J&J alleges defendant Lisa Mata illegally broadcast this fight at her restaurant, Juarez El Paso Border Food, in violation of 47 U.S.C. § 605 and 47 U.S.C. § 553. J&J now moves for summary judgment. J&J has shown there are no issues of material fact as to Mata's liability under § 605 and it is entitled to judgment as a matter of law. I therefore grant its motion for summary judgment. I deny J&J's motion to amend my grant of default judgment as to defendant LVP International, LLC except as to attorneys' fees.

         J&J, a closed-circuit distributor of sports programming, purchased the exclusive licensing rights to the Alvarez-Angulo fight program, which included both the main event and the undercard bouts. ECF No. 22-3 at 2, 7-12. Commercial establishments wishing to broadcast the program were required to pay J&J a sublicense fee based on the establishment's capacity. Id. at 3, 14. Mata did not pay the fee to J&J. Id. at 2. Two investigators went to Juarez El Paso Border Food on the night of the fight and observed three televisions showing the program and approximately 12 to 30 patrons. ECF No. 22-2 at 1, 3. The restaurant had posted on its Facebook page that it would be showing the fight. ECF No. 22-1 at 30.

         Because Mata did not respond to J&J's requests for admission, the following facts are deemed admitted under Federal Rule of Civil Procedure 36[1]: (1) Mata was the owner, manager, and officer of Juarez El Paso Border Food when the program was broadcast, and any employees of the restaurant were working on her behalf; (2) Mata was present at the restaurant when the program was broadcast; (3) Mata did not pay a licensing fee to J&J for the program but was aware this was required; (4) Mata or her employees advertised the program; and (5) the program was received by diverting a residential satellite service into the restaurant, an illegal decoder was used in the restaurant, and/or Mata ordered the program from a programming provider (i.e., website, cable company, Dish Network, DirecTV) and paid the provider the residential license fee for the program. See ECF No. 22-1 at 18-25.

         Summary judgment is appropriate if the pleadings, discovery responses, and affidavits demonstrate “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). I view the evidence and draw reasonable inferences in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenck, P.C., 523 F.3d 915, 920 (9th Cir. 2008). “Unanswered requests for admissions may be relied on as the basis for granting summary judgment.” Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007).

         A. Liability

         Although J&J alleged violations of both 47 U.S.C. § 605 and § 553, it appears to move for judgment under only § 605. “Section 605(a) of the Communications Act prohibits the unauthorized receipt and use of radio communications for one's ‘own benefit or for the benefit of another not entitled thereto.'” DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008) (quoting 47 U.S.C. § 605(a)). This section applies to satellite television signals. Id. Furthermore, § 605 is a strict liability statute. See 47 U.S.C. § 605(e)(3)(C)(iii) (allowing for a reduction in damages upon a finding “the violator was not aware and had no reason to believe his acts constituted a violation”); J&J Sports Prods., Inc. v. Aguilar, No. CV 14-03268 WDK-PLA, 2016 WL 232292, at *2-3 (C.D. Cal. Jan. 19, 2016) (discussing past courts' interpretation of § 605 as a strict liability statute). “[L]iability under section 605 requires proof that a defendant has (1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by the plaintiff.” Cal. Satellite Sys. v. Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985).

         J&J contends that, based on Mata's admissions and its president's and investigators' affidavits, it has shown that Mata intercepted and published the program to which J&J had exclusive licensing rights. Mata, appearing pro se, does not respond to this argument. Instead, she argues only that the fight was shown to family and neighbors for their own entertainment. Thus, she does not raise a genuine issue of fact as to whether she violated § 605.[2]

         B. Damages

         J&J requests statutory damages in lieu of actual damages. Under § 605, “the party aggrieved may recover an award of statutory damages for each violation . . . in a sum of not less than $1, 000 or more than $10, 000, as the court considers just . . . .” 47 U.S.C. § 605(e)(3)(C)(i)(II). J&J also requests enhanced damages for the willful violation of the statute. See 47 U.S.C. § 605(e)(3)(C)(ii) (“In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100, 000 for each violation of subsection (a) of this section.”). J&J argues it should receive the maximum statutory and enhanced damages to properly deter both Mata and other possible pirates from similar future willful violations of the statute. In response, Mata contends that the program was not shown for financial gain, but only to family and neighbors.

         First, Mata offers no admissible evidence to support her claims, such as a sworn affidavit. Because Mata is pro se, I “consider as evidence in [her] opposition to summary judgment all of [her] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [she] has attested under penalty of perjury that the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Unsworn assertions do not constitute evidence. Id.; Coverdell v. Dep't of Social & Health Servs., State of Wash., 834 F.2d 758, 762 (9th Cir. 1987). Mata offers only unsworn assertions that her conduct was not for financial gain. Notably, this is contradicted by the fact that the restaurant had posted on its Facebook page that it would be showing the fight. ECF No. 22-1 at 30. Mata has not raised a genuine issue of fact as to the willfulness of her violation or its purpose for commercial advantage or private financial gain.

         J&J has provided no evidence of Mata's profit from the wrongful broadcast of the fight program. The cost of the licensing fee would have been $1, 200. ECF No. 22-3 at 14. J&J's investigators observed between 12 and 30 patrons, purchased food and drink, but were not required to pay a cover charge. ECF No. 22-2 at 1, 3. While deterrence is a goal of statutory damages, I do not find the maximum award is warranted. Therefore, I grant statutory damages in the amount of $5, 000.

         With respect to J&J's request for the full $100, 000 in enhanced damages, I find this is similarly unwarranted. While Mata has admitted she willfully pirated the program and the restaurant did advertise on Facebook, “[t]here is no evidence that [Mata] is a repeat illegal interceptor of programming, and there is no evidence that [J&J] incurred significant damages.” Joe Hand Promotions, Inc. v. Pinkhasov, No. CV 11-02437-PHX-FJM, 2012 WL 2641451, at *1 (D. Ariz. Aug. 24, 2012). There is “also no evidence that [Mata] charged a premium for drinks or food” or a cover charge. Id. While the program was ...


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