J&J Sports Productions, Inc. v. Bromart, LLC, No. 8:2015cv00175 - Document 12 (D. Md. 2015)
Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/8/2015. (sat, Chambers)
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J&J Sports Productions, Inc. v. Bromart, LLC Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : J & J SPORTS PRODUCTIONS, INC. : v. : Civil Action No. DKC 15-0175 : BROMART, LLC : MEMORANDUM OPINION Presently pending and ready for resolution in this Cable Act case is a motion for partial summary Plaintiff J & J Sports Productions, Inc. judgment (ECF No. 11). court now rules, no hearing being deemed necessary. 105.6. filed by The Local Rule For the following reasons, Plaintiff’s motion will be granted. I. Background The following facts are uncontested. Plaintiff “paid for and was thereafter granted the exclusive nationwide television distribution Cotto, rights WBA World to the Light Floyd Mayweather, Middleweight Jr. v. Miguel Championship Fight Program[,] which telecast nationwide on Saturday May 5, 2012” (“the Broadcast”). (ECF No. 1 ¶ 8). Plaintiff entered into sublicensing agreements with commercial establishments, such as bars and restaurants, which purchased the rights to exhibit the Broadcast for their patrons. sublicense from Plaintiff. Defendant did not obtain a On the night of the Broadcast, an Dockets.Justia.com investigator hired by Plaintiff witnessed Defendant charging patrons to enter its establishment to watch the Broadcast on two televisions. (ECF No. 1-1, at 2). “[w]ith knowledge full that [the Plaintiff alleges that, Broadcast] was not to be intercepted, received and exhibited by entities unauthorized to do so, . . . [Defendant] did unlawfully publish, divulge and exhibit [the Broadcast] . . . willfully and for the purposes of direct or indirect commercial gain.” advantage or private financial (ECF No. 1 ¶ 11). On January 21, 2015, Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) commenced this action against Defendant Bromart, LLC t/a Sahara Oasis t/a Sahara Oasis Restaurant & Lounge, alleging three counts: violations of the Communications Act of 1934, as amended, 47 U.S.C. §§ 553 (unauthorized reception of cable services) and 605 (unauthorized publication or use of communications) (Counts I and II); and the Maryland common law tort of conversion (Count III). (ECF No. 1). Defendant answered the complaint on February 19, stating only that “Bromart, trading as company ceased “[t]here are LLC[,] Sahara no which Oasis[,] operations known is has a limited been effective assets.” (ECF liability liquidated[,]” June No. 30, 6). company “[t]he 2014[,]” On June and 8, Plaintiff filed the pending motion for partial summary judgment 2 as to liability on the complaint’s statutory counts.1 11). (ECF No. Defendant has not opposed the motion and the time in which to do so has passed. II. Standard of Review Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Summary judgment is inappropriate if any material factual issue “may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). Where, as here, the nonmoving party fails to respond, the requested relief may 56(e)(2). not automatically be granted. See Fed.R.Civ.P. Rather, the court must “review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th law.” Cir. 1993). 1 Plaintiff also asks for damages and attorney’s fees in its motion, but provides no basis for its request in the attached memorandum of law. Accordingly, Plaintiff’s motion will be treated as requesting summary judgment as to liability only. 3 III. Analysis Plaintiff seeks partial summary judgment on Counts I and II, which allege violations of the Communications Act under 47 U.S.C. §§ 553 and 605. “[S]ections 605 and 553 of 47 U.S.C. . . . are provisions of the Federal Cable Act that address different modalities of so-called ‘cable theft.’” Inc. v. Mayreal, LLC, 849 F.Supp.2d J & J Sports Prods., 586, 588 (D.Md. 2012). Section 553 states that “[n]o person shall intercept or receive or assist service in intercepting offered over a or receiving any communications cable system unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.” 605 prohibits certain the “radio” unauthorized communications, television transmission.” n.3. 47 U.S.C § 553(a)(1). interception including or Section receipt “digital of satellite Mayreal, LLC, 849 F.Supp.2d at 588 Both statutes are strict liability statutes. Joe Hand Promotions, Inc. v. Dock Street Enters., Inc., No. WMN-11-1973, 2011 WL 6141058, at *4 (D.Md. Dec. 8, 2011) (noting that section 553 “is a strict 605(e)(3)(C) liability (providing for statute”); see also liability without 47 a U.S.C. finding § of intent). Plaintiff does not specify if Defendant program through a cable or satellite system. intercepted the Courts, including judges within this court, are split on the question of whether 4 the same conduct can violate both statutes. Compare Dock Street, 2011 WL 6141058 at *4 (stating that “the statutes do not overlap”), with J & J Sports Prods., Inc. v. Castro Corp, No. 11-cv-00188-AW, 2011 WL 5244440, at *3 (D.Md. Nov. 1, 2011) (noting that courts have found that the same “conduct violated both statutes”).2 At the pleading stage, a plaintiff need only allege that a business entity “intercepted and displayed the Program at its establishment, without authorization from [Plaintiff], on a particular date and at a particular time.” See, e.g., Joe Hand Promotions, Inc. v. Md. Food & Entm’t, LLC, No. CCB-11-3272, 2012 WL 5879127, at *4 (D.Md. No. 19, 2012). In addition, this court has entered default judgment in nearly identical factual and procedural situations, finding that plaintiffs had established a violation of either § 553 or § 605. See, e.g., J & J Sports Prods., Inc. v. Shiva Foods, Inc., No. PWG-14-2049, 2015 WL 2452421, at *2 (D.Md. May 19, 2015); J & J Sports Prods., Inc. v. AKC Restaurant, Inc., No. DKC-14-2931, 2015 WL 1531279, at *2 (D.Md. Apr. 3, 2015); J & J Sports Prods., Inc. v. Rumors, Inc., No. CCB-14-2046, 2014 WL 6675646, at *2 (D.Md. Nov. 21, 2014). At summary judgment, courts generally expect the plaintiff to have utilized discovery to determine the specific method of interception. 2 It is damages under Inc. v. Shiva *2 (D.Md. May clear, however, both statutes. Foods, Inc., No. 19, 2015); Castro Here, however, that a plaintiff cannot recover See, e.g., J & J Sports Prods., PWG-14-2049, 2015 WL 2452421, at Corp., 2011 WL 5244440 at *3. 5 Defendant repeated has ceased attempts unsuccessful. operations, to contact and Plaintiff defense (See ECF No. 10). counsel counsel’s have been Defendant filed an answer, but did not contest the factual allegations of the complaint and attached affidavit. (See ECF No. 6). Defendant’s cessation of operations and lack of responsiveness has precluded Plaintiff’s further development of the record, beyond the investigator’s affidavit, to show the exact method of interception. Because Defendant controls the relevant information, there appears to be no way, absent discovery, for Plaintiff to provide showing how Defendant intercepted the broadcast. neither the record nor any of the cases evidence In addition, addressing the interception of similar broadcasts indicate there is another way Defendant could have received the broadcast other than through a cable or digital satellite feed. Accordingly, the uncontested facts indicate that Defendant violated either § 553 or § 605 by showing the Broadcast without Plaintiff’s authorization, and summary judgment as to liability is appropriate. III. Conclusion For the foregoing reasons, Plaintiff’s motion for partial summary judgment as to liability under the Cable Act will be granted. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 6
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