United States District Court, D. Nevada
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND (2) GRANTING IN PART PLAINTIFF'S MOTION FOR
RECONSIDERATION [ECF NOS. 22, 28]
P. GORDON, UNITED STATES DISTRICT JUDGE
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.
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.
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) 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
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.
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).
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).
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 §
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.
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.
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.
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 ...