J&J Sports Productions, Inc. v. 3705 Iberville LLC et al, No. 2:2017cv04316 - Document 70 (E.D. La. 2018)

Court Description: ORDER AND REASONS - IT IS ORDERED that the 53 motion for summary judgment filed by Plaintiff J&J Productions is GRANTED IN PART as to the liability of Defendants 3705 Iberville LLC d/b/a Samuel's Blind Pelican a/k/a the Blind Pelican a/k/a Sa muels Blind Pelican Taco and Beer a/k/a Samuels Avenue Beer Pub and Steven Seeber and DENIED IN PART as to the liability of Defendant Karen Brown. IT IS FURTHER ORDERED that the motion for summary judgment filed by Plaintiff J&J Productions is DENIED IN PART as to the award of enhanced statutory damages. IT IS FURTHER ORDERED that the 54 motion for summary judgment filed by Defendants is DENIED. Signed by Judge Susie Morgan. (bwn)

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J&J Sports Productions, Inc. v. 3705 Iberville LLC et al Doc. 70 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J &J SPORTS PROD U CTION S, IN C., Plain tiff CIVIL ACTION VERSU S N O. 17-4 3 16 3 70 5 IBERVILLE LLC, ET AL., D e fe n d an ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court are the following cross m otions for sum m ary judgm ent: (1) Plaintiff’s m otion for sum m ary judgm ent, filed Septem ber 15, 20 18 1 and (2) Defendants’ m otion for partial sum m ary judgm ent, filed Septem ber 18, 20 18 . 2 Both m otions are opposed. 3 Plaintiff filed a reply in support of its m otion. 4 FACTU AL & PROCED U RAL BACKGROU N D This case involves the publication and broadcast of a television program , the “Floyd Mayweather, J r. v. Marcos Rene Maidana WBC Welterweight Cham pionship Fight Program ,” (“Mayweather-Maidana Fight”) which aired on Saturday, May 3, 20 14. Plaintiff J &J Procudctions, Inc. (“J &J ”) held the exclusive right to distribute and broadcast nationwide the closed-circuit television signals for the event. 5 J &J is a distributor of closed circuit pay-per view boxing and special even ts. 6 Plaintiff alleges Defendants 370 5 Iberville LLC d/ b/ a Sam uel’s Blind Pelican a/ k/ a the Blind Pelican 1 R. Doc. 53. R. Doc. 54. 3 R. Doc. 62 (Defendants’ opposition to Plaintiff’s m otion for sum m ary judgm ent); R. Doc. 59 (Plaintiff’s opposition to Defendants’ m otion for sum m ary judgm ent); R. Docs. 66-67 (Plaintiff’s am ended opposition). 4 R. Doc. 65. 5 R. Doc. 53-1 at 1; R. Doc. 62-1 at 2. 6 R. Doc. 1 at ¶ 10 . 2 1 Dockets.Justia.com a/ k/ a Sam uels Blind Pelican Taco an d Beer a/ k/ a Sam uels Avenue Beer Pub (“the LLC”), Karen Brown, and Steven Seeber (“the Defendants”) broadcast the Mayweather-Maidana Fight without the right to do so. 7 Defendants Seeber and Brown are m em bers of the LLC and m anagers of the establishm ent the Blind Pelican. 8 Plaintiff m oved for sum m ary judgm ent against all Defendants on the issues of liability and the award of enhanced statutory dam ages. 9 Defendants adm itted sum m ary judgm ent should be granted on the liability of the LLC and Defendant Seeber but opposed the sum m ary judgm ent m otion on the liability of Defendant Brown and the am ount of dam ages. 10 Plaintiff filed a reply. 11 Defendants m oved for sum m ary judgm ent on the issues of the enhanced statutory dam ages and the liability of Defendant Brown. 12 Plaintiff opposed the m otion on both issues. 13 SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.”16 All reasonable inferences are drawn in favor of the non-m oving party. 17 7 R. Doc. 1 at ¶¶ 13-14. R. Doc. 53-1 at 2-3; R. Doc. 62-1 at 2. 9 R. Doc. 53. 10 R. Doc. 62 at 3. 11 R. Doc. 65. 12 R. Doc. 54. 13 R. Doc. 59; see also R. Docs 66-67 (Plaintiff’s am ended opposition). 14 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 15 DIR ECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 16 Delta & Pine Land Co. v . N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 8 2 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 18 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.” To satisfy Rule 56’s burden of production, the m oving party m ust do one of two things: “the m oving party m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “the m oving party m ay dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .” If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 19 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 20 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary 18 Hibernia N at. Bank v . Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 19 Celotex, 477 U.S. at 322– 24. 20 Id. at 331– 32 (Bren nan, J ., dissentin g). 3 judgm ent m ust be denied. 21 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”22 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”23 LAW AN D AN ALYSIS I. Su m m ary Ju d gm e n t o n Liability J &J m oves for sum m ary judgm ent against all Defendants, arguing they are liable under 47 U.S.C. §60 5 for the unauthorized publication or use of com m unications. 24 47 U.S.C. §60 5(a) im poses strict liability against a person who receives, assists in receiving, transm its, or assists in transm itting any satellite com m unication and divulges or publishes the contents through an unauthorized channel of transm ission or reception. 25 “Any person aggrieved” by the unauthorized publication or use of com m unications m ay bring a civil action in a United States district court. 26 21 See id. at 332. Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 23 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 24 R. Doc. 53. 25 47 U.S.C. §60 5(a). 26 47 U.S.C. §60 5(e)(3)(A). 22 4 Generally, the m em bers of a lim ited liability com pany are im m une from liability for the lim ited liability com pany’s debts, obligations, and liabilities. 27 However, a m em ber of a lim ited liability com pany m ay be held liable in her individual capacity if she com m its fraud, breaches a professional duty, or perform s a negligent or wrongful act against another. 28 Specifically, to lose lim ited liability, the m em ber m ust perform an act that either is outside her capacity as a m em ber or, if done as a m em ber, “also violate(s) som e personal duty owed by the individual to the injured party.”29 Defendants adm it sum m ary judgm ent is proper as to the liability of the LLC and Steven Seeber 30 but m ove for sum m ary judgm ent arguing that Defendant Karen Brown is not personally liable. 31 a. Su m m ary Ju d gm e n t o n th e Liability o f th e LLC an d D e fe n d an t Ste ve n Se e be r Is Gran te d It is undisputed that J &J held the exclusive right to transm it and broadcast the closed-circuit signal for the Mayweather-Maidana Fight to com m ercial and business entities. 32 It is undisputed that neither the LLC nor Defendants Seeber and Brown paid for the right to receive and broadcast the Mayweather-Maidana Fight at the Blind Pelican. 33 It is also undisputed that the LCC and Defendant Seeber knew the MayweatherMaidana Fight would be shown at the Blind Pelican. 34 It is undisputed that the fight was aired on a large flat screen television on the prem ises of the Blind Pelican and that the 27 La. R.S. 12:1320 . Id. 29 See Petch v. Hum ble, 939 So.2d 499, 50 4 (La.App.2d Cir.20 0 6); see also J&J Sports Prods., Inc. v . Evolution Entm ’t Grp., 20 14 WL 3587370 , at *2 (E.D. La. J uly 21, 20 14) (Morgan, J .) (adoptin g the reasonin g of Joe Hand Prom otions, Inc. v. Breaktim e Bar, LLC, 20 14 WL 1870 633, at *2 (W.D. La. May 8, 20 14) (finding the m em ber of an LLC was not liable because she did not perform an act that violated som e personal duty owed to the injured party)). 30 R. Doc. 62 at 3. 31 R. Doc. 54. 32 R. Doc. 53-1 at 1; R. Doc. 62-1 at 2. 33 R. Doc. 53-1 at 3; R. Doc. 62-1 at 2. 34 R. Doc. 53-1 at 4; R. Doc. 62-1 at 2. 28 5 television signal for the fight was transm itted by DirecTV, Inc., which is a satellite television signal carrier. 35 Further, Defendants adm it sum m ary judgm ent should be granted as to the LLC and Defendant Seeber on the issue of liability. 36 J &J has dem onstrated it is entitled to sum m ary judgm ent on the issue of the liability of the LLC and Steven Seeber because they received or assisted in receiving the fight through an unauthorized channel of satellite reception. 37 Because Seeber com m itted a wrongful act, he is personally liable. 38 Since there is no genuin e dispute of m aterial fact and J &J has dem onstrated it is entitled to judgm ent as a m atter of law, Plaintiff’s m otion for sum m ary judgm ent 39 is granted on the liability of the LLC and Steven Seeber. b. Su m m ary Lu d gm e n t o n th e Pe rs o n al Liability o f D e fe n d an t Kare n Bro w n Is D e n ie d The parties dispute whether Karen Brown is personally liable for the LLC’s unauthorized publication or use of the Mayweather-Maidana Fight. Both J &J and Brown have m oved for sum m ary judgm ent on the issue of Defendant Brown’s liability. 40 There are m aterial facts in dispute with respect to whether Defendant Brown breached som e personal duty owed to J &J or com m itted a wrongful act against J &J such that she is personally liable. It is undisputed that Karen Brown is a m em ber of the LLC and a m anager of the Blind Pelican. 41 It is also undisputed that Karen Brown was not aware of the m ean s of transm ission of the signal for the Mayweather-Maidana Fight, was not aware of how m uch was paid for the TV signal, and did not personally set up the TV screen or 35 R. Doc. 53-1 at 3-4; R. Doc. 62-1 at 2. R. Doc. 62 at 3. 3747 U.S.C. §60 5(a). 38 See La. R.S. 12:1320 . 39 R. Doc. 53; R. Doc. 62. 40 R. Doc. 53; R. Doc. 54. 41 R. Doc. 53-1 at 3; R. Doc. 62-1 at 2. 36 6 projection equipm ent or control the equipm ent at the tim e in question. 42 However, the parties dispute whether Karen Brown knew J &J ’s program was going to be shown on the Blind Pelican’s prem ises on May 3, 20 14 43 and whether Karen Brown authorized any piracy of the Mayweather-Maidana Fight. 44 The parties also dispute Brown’s level of involvem ent in the day to day operations of the Blind Pelican. 45 Because there are m aterial facts in dispute related to Defendant Brown’s personal liability for the acts of the LLC, the cross sum m ary judgm ent m otion s 46 are denied on the liability of Defendant Brown. II. Su m m ary J u d gm e n t o n th e Aw ard o f En h an ce d Statu to ry D am a ge s Is D e n ie d J &J m oves for sum m ary judgm ent against all Defendants, arguing Defendants should be assessed enhanced statutory dam ages for a willful violation of 47 U.S.C. § 60 5. 47 Defendants m ove for sum m ary judgm ent on the sam e issue, arguin g the circum stances surrounding the display of the Mayweather-Maidana Fight do not warrant an award of enhan ced statutory dam ages. 48 Under 47 U.S.C. § 60 5, a private party such as J &J m ay recover either its actual dam ages or statutory dam ages, as well as full costs and reasonable attorneys' fees. 49 The Court m ay in its discretion award statutory dam ages for each violation of § 60 5(a) in the am ount of $ 1,0 0 0 to $ 10 ,0 0 0 , “as the court considers just.”50 If the Court finds that “the violation was com m itted willfully and for purposes of direct or indirect com m ercial 42 R. Doc. 54-7; R. Doc. 66 at 1. R. Doc. 67 at 2. 44 R. Doc. 54-7 at 1; R. Doc. 66 at 1. 45 R. Doc. 67 at 1. 46 R. Doc. 52; R. Doc. 54. 47 R. Doc. 53. 48 R. Doc. 54. 49 47 U.S.C. § 60 5(e)(3). 50 47 U.S.C. § 60 5(e)(3)(C)(i)(II). 43 7 advantage or private financial gain,” the Court m ay “increase the award of dam ages . . . by an am ount of not m ore than $ 10 0 ,0 0 0 for each violation.”51 In deciding whether enhanced statutory dam ages are warranted, courts consider m any factors, including “[1] the num ber of televisions on which the defendants broadcast the program , [2] the food and beverages sold to custom ers, [3] whether there was a cover charge, [4] whether it was broadcast in an urban area where the broadcast would have had m ore than a m inim al im pact,”52 [5] the num ber of violations com m itted by the defendant, [6] the defendant’s unlawful m onetary gains, and [7] whether the defendant advertised for the even t. 53 It is undisputed that one large flat screen television on the prem ises of the Blind Pelican was on and tuned into the Mayweather-Maidana Fight and that approxim ately twenty-one to twenty-seven people were present at the Blind Pelican during the fight. 54 It is also undisputed that during the fight, the Blind Pelican sold food and alcoholic beverages, 55 and that the Blind Pelican did not charge a prem ium for food and beverages during the fight. 56 The parties do not dispute that the Blind Pelican did not require a cover charge for adm ission during the Mayweather-Maidana Fight, nor do they dispute that the LLC has never previously been accused of TV signal piracy prior to the alleged incident. 57 It is sim ilarly undisputed that the population of New Orleans approaches 345,0 0 0 51 47 U.S.C. § 60 5(e)(3)(C)(ii). J&J Sports Prods., Inc. v. Guiseppe’s Bistro, LLC, 20 15 WL 1540 364, at *5 (E.D. La. 20 15) (citing Tim e W arner Cable of N .Y.C. v. Taco Rápido Rest., 98 8 F.Supp. 10 7, 111– 12 (E.D.N.Y.1997); Joe Hand Prom otions, Inc. v. Chios, Inc., 20 12 WL 30 69935, at *6 (S.D.Tex. J uly 27, 20 12), aff'd, 544 F. App'x 444 (5th Cir.20 13)). 53 Integrated Sports Media, Inc. v. El Guadalajara, Inc., 20 11 WL 4434165, at *2 (E.D.N.Y. Aug. 30 , 20 11); Joe Hand Prom otions, Inc. v. Kaczm ar, 20 0 8 WL 4776365, *2 (N.D.Ill. Oct.29, 20 0 8); 54 R. Doc. 53-1 at 4; R. Doc. 62-1 at 2; R. Doc. 54-7 at 2; R. Doc. 66 at 2. 55 R. Doc. 53-1 at 4-5; R. Doc. 62-1 at 2. 56 R. Doc. 54-7 at 2; R. Doc. 66 at 2. 57 R. Doc. 54-7 at 2; R. Doc. 66 at 2. 52 8 people. 58 However, the parties dispute whether the Blind Pelican advertised that it would display the Mayweather-Maidana Fight. 59 The parties also dispute whether the LLC engaged in sales or received profit attributable to the Mayweather-Maidana Fight. 60 Additionally, J &J argues that Defendants’ actions during litigation dem onstrate a willful violation. 61 J &J alleges the “elaborate effort by the defendants to hide the facts” suggests that Defendants’ violation of 47 U.S.C. § 60 5 was willful. 62 The Court finds genuine issues of m aterial fact exist as to whether “the violation was com m itted willfully an d for purposes of direct or indirect com m ercial advantage or private financial gain.”63 The alleged evasive m easures by Defendants to avoid producing eviden ce, the disputed fact of whether the Blind Pelican advertised that it would display the fight, and the disputed fact of whether the LLC engaged in sales or received profit attributable to the fight are genuine issues of m aterial fact relating to the “willfulness” of Defendants’ violation. Therefore, the cross m otions for sum m ary judgm ent 64 are denied on the award of enhanced statutory dam ages. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion for sum m ary judgm ent filed by Plaintiff J &J Productions is GRAN TED IN PART as to the liability of Defendants 370 5 Iberville LLC d/ b/ a Sam uel’s Blind Pelican a/ k/ a the Blind Pelican a/ k/ a Sam uels Blind Pelican Taco and Beer a/ k/ a Sam uels Avenue Beer Pub and Steven Seeber and D EN IED IN PART as to the liability of Defendant Karen Brown. 58 R. Doc. 53-1 at 5; R. Doc. 62-1 at 2. R. Doc. 54-7; R. Doc. 66 at 2. 60 R. Doc. 53-1 at 2; R. Doc. 66 at 6. 61 R. Doc. 65 at 6. 62 Id.; R. Doc. 67. 63 47 U.S.C. § 60 5(e)(3)(C)(ii). 64 R. Doc. 53; R. Doc. 54. 59 9 IT IS FU RTH ER ORD ERED that the m otion for sum m ary judgm ent filed by Plaintiff J &J Productions is D EN IED IN PART as to the award of enhanced statutory dam ages. IT IS FU RTH ER ORD ERED that the m otion for sum m ary judgm ent filed by Defendants is D EN IED . N e w Orle an s , Lo u is ian a, th is 18th d ay o f Octo be r, 2 0 18 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 10

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