Joe Hand Promotions, Inc. v. Macias et al
Filing
29
MEMORANDUM AND ORDER GRANTED 28 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
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
ROGER MACIAS, et al.,
Defendants.
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CIVIL ACTION NO. H-11-1773
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 28] filed by Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”). Plaintiff seeks
summary judgment on its claim under 47 U.S.C. § 605. Defendants Roger Macias,
Ana O. Macias, and Macias Enterprises, Inc. d/b/a Club 1400 neither filed a response
in opposition to the Motion nor requested additional time to do so. The Southern
District of Texas Local Rules provide that failure to respond to a motion is taken as
a representation of no opposition. See LR 7.3, 7.4. However, when a party fails to
respond to a Motion for Summary Judgment, the Court must nevertheless consider the
merits 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.
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I.
BACKGROUND
Plaintiff sued Defendants alleging violations of the Federal Communications
Act (“FCA”), 47 U.S.C. § 553 and § 605. Macias Enterprises, Inc. is owned by Ana
Macias, and Roger Macias is its only officer. Plaintiff alleges that Defendants
illegally intercepted and exhibited the telecast of the March 2010 “Ultimate Fighting
Championship 111: St-Pierre v. Hardy” (“Fight Program”) at Club 1400, owned by
Macias Enterprises. 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
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
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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
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
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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 § 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. 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 Macias
Enterprises owned Club 1400, Ana Macias owned Macias Enterprises, and Roger
Macias was the only officer of Macias Enterprises. See Defendants’ Answers to
Interrogatories, Exhs. D(1) and D(2) to Motion.
Plaintiff has presented
uncontroverted evidence that the Fight Program was exhibited at Club 1400 on
March 27, 2010. See Affidavit of Kim Vickery, Exh. A(2) to Motion. Indeed,
Defendants have admitted that the Fight Program was exhibited at Club 1400. See
Defendants’ Responses to Requests for Admissions, Exh. E(1) and E(2) to Motion.
Plaintiff has presented uncontroverted evidence that Defendants were not authorized
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to exhibit the Fight Program. See Affidavit of Joe Hand, Jr., Exh. A to Motion, # 7.
Plaintiff has presented uncontroverted evidence that Defendants have been accused
on two prior occasions of illegally intercepting and exhibiting fight programs. See
Defendants’ Answers to Interrogatories, # 18.
This unchallenged evidence establishes that Defendants exhibited the Fight
Program at Club 1400 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.1
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 Motion for Summary Judgment [Doc. # 28] is
GRANTED. The Court will issue a separate Final Judgment.
SIGNED at Houston, Texas, this 19th day of March, 2012.
1
Plaintiff has presented the affidavit of Jamie King, its counsel of record. In the
affidavit, King states that attorneys “expended or will expend” a minimum of 13
hours working on this case at the rate of $250.00 per hour. See Affidavit of Jamie
King, Exh. B to Motion, ¶ 9. The Court concludes that $3,250.00 is a reasonable fee
for this case.
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