J&J Sports Productions, Inc. v. Orellana et al
Filing
17
MEMORANDUM AND ORDER GRANTED 16 Amended MOTION for Summary Judgment.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
§
§
§
v.
§
§
FRANCISCO RAMIRO ORELLANA, §
et al.,
§
Defendants.
§
CIVIL ACTION NO. H-11-1598
MEMORANDUM AND ORDER
This case is before the Court on the First Amended Motion for Summary
Judgment (“Motion”) [Doc. # 16] filed by Plaintiff J&J Sports Productions, Inc.
(“J&J”). Defendants Francisco Ramiro Orellana and Agustina Montano Portillo
neither filed a response in opposition to the Motion nor requested additional time to
do so.1 The Local Rules provide that failure to respond to a motion is taken as a
representation of no opposition. LR7.3, 7.4. However, when a party fails to respond
to a Motion for Summary Judgment, the Court must nevertheless consider the merits
1
Plaintiff filed a Motion for Summary Judgment on January 20, 2012, to which
Defendants failed to respond. The Court issued an Order [Doc. # 15] allowing
Defendants an additional period of time to February 21, 2012, to respond and
cautioned Defendants that failure to respond by the deadline would result in the
Motion being granted as unopposed. Defendants did not file any opposition by
February 21, 2012, but Plaintiff on that date filed its Amended Motion for Summary
Judgment. Defendants have failed to file any opposition to either motion.
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of the Motion. Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir.
1995). Based on the Court’s review of the record and relevant legal authorities, the
Court grants the Motion for Summary Judgment.
I.
BACKGROUND
Plaintiff sued Defendants alleging violations of the Federal Communications
Act (“FCA”), 47 U.S.C. § 553 and § 605. Specifically, Plaintiff alleged that
Defendants illegally intercepted and exhibited the closed-circuit telecast of the April
2008 “Latin Fury” WBC Continental Americas Light Middleweight Championship
Fight Program (“Fight Program”). After an adequate time to complete discovery,
Plaintiff moved for summary judgment. The Motion, to which no opposition has been
filed, is ripe for decision.
II.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary
judgment, after adequate time for discovery and upon motion, 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 will bear the burden at trial. 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); see also Baton Rouge Oil and Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment “should
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be rendered if the pleadings, the discovery 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(a); Celotex,
477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
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such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
III.
ANALYSIS
The FCA prohibits the unauthorized interception and broadcast of either
satellite or cable transmissions. 47 U.S.C. §§ 553, 605. The FCA is a strict liability
statute, and the plaintiff is required only to prove the unauthorized exhibition of the
intercepted transmission. See KingVision Pay-Per-View, Ltd. v. Lake Alice Bar, 168
F.3d 347, 349 (9th Cir. 1999) (the finding that bar had, without authorization, shown
a preliminary bout required judgment in favor of the plaintiff). A prevailing plaintiff
may recover statutory damages of up to $10,000.00 for a violation of § 553 and up to
$10,000.00 for a violation of § 605. If the violation was willful and “for purposes of
direct or indirect commercial advantage or private financial gain,” the Court may
award additional damages of up to $100,000.00. A prevailing party is entitled to
recover its reasonable costs and fees. See 47 U.S.C. § 605(e)(3)(B)(iii).
In this case, Defendants have admitted that at the relevant time they were the
owners and managers of El Ferri Restaurant and Bar (the “Bar”). See Defendants’
Responses to Requests for Admission (“Defendants’ Admissions”), Exhs. C and D to
Motion, ## 21, 22. Plaintiff has presented uncontroverted evidence that the Fight
Program was exhibited at the Bar on April 26, 2008. See Affidavit of Emilie Stacy
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Flores, Exh. A-1 to Motion. Plaintiff has presented uncontroverted evidence that
Defendants were not authorized to exhibit the Fight Program. See Defendants’
Admissions, ## 1-6. Plaintiff has presented uncontroverted evidence that Defendants
knew the Bar was not authorized to exhibit the Fight Program. See id., # 44.
This unchallenged evidence establishes that Defendants exhibited the Fight
Program at the Bar in violation of the FCA, and that their violation was willful.
Accordingly, Plaintiff is entitled to summary judgment and to an award of statutory
damages, costs, and reasonable attorneys’ fees.2
IV.
CONCLUSION AND ORDER
The uncontroverted evidence in this record establishes that Defendants willfully
violated the FCA by illegally intercepting and exhibiting the Fight Program.
Accordingly, it is hereby
ORDERED that Plaintiff’s First Amended Motion for Summary Judgment
[Doc. # 16] is GRANTED. The Court will issue a separate Final Judgment.
SIGNED at Houston, Texas, this 15th day of March, 2012.
2
Plaintiff has presented the affidavit of Andrew B. Korn, its counsel of record. In the
affidavit, Korn states that attorneys spent four (4) hours working on this case at the
rate of $250.00 per hour. See Affidavit of Andrew B. Korn, Exh. B to Motion, ¶ 8.
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