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Joe Hand Promotions, Inc. v. Izalco Inc.

United States District Court, S.D. Texas, Houston Division

January 4, 2018

Joe Hand Promotions, Inc., Plaintiff,
v.
Izalco, Inc., d/b/a Republica Sports Bar & Grill, David E. Aguiluz, and Teodoro Aguiluz, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller, United States District Judge.

         Pending before the court is plaintiff Joe Hand Promotions, Inc.'s (“Joe Hand”) motion for summary judgment. Dkt. 20. Defendants Izalco, Inc., David Aguiluz, and Teodoro Aguiluz (“Defendants”) did not respond. Having considered the motion, the record evidence, and the applicable law, the court is of the opinion that the motion should be GRANTED.

         I. Background

         This case involves the exhibition of Ultimate Fighting Championship 168: Wiedman v. Silva 2 (“UFC 168”). Dkt. 1. On December 28, 2013, Defendants broadcasted UFC 168 at Republica Sports Bar & Grill (“Republica”) in Houston, Texas. Dkt. 20 at 6. Joe Hand bought the exclusive commercial exhibition rights to UFC 168. Dkt. 21-2 at 2. To exhibit UFC 168, a commercial establishment needed to obtain a valid license agreement with and pay a licensing fee to Joe Hand. Id. at 2, 3.

         On December 28, 2013, Izalco conducted business as Republica. Dkt. 21-1 at 7; Dkt. 22-1 at 2. David and Teodoro Aguiluz owned and operated the restaurant. Dkt. 22-1 at 7, 12. Without obtaining a valid license or paying a licensing fee, Defendants broadcasted UFC 168 at Republica. Id. at 3, 8, 13.

         Joe Hand sued Defendants alleging that they violated the Federal Communications Act of 1934, 47 U.S.C. §§ 553[1] or 605[2] (“FCA”), by unlawfully intercepting the interstate communication of UFC 168 and exhibiting it to Republica patrons without paying the required fee. Dkt. 1.

         On June 1, 2017, Joe Hand served Defendants with requests for admissions. Dkt. 22-1. Defendants failed to respond. In the instant motion, Joe Hand asks the court to grant summary judgment on its § 605 claim. Dkt. 20. Joe Hand seeks statutory damages, additional damages, attorneys' fees, costs of court, and post-judgment interest. Id.

         II. Legal Standard

         A court shall grant summary judgment when a “movant shows that 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). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         A. Liability Under § 605

         Joe Hand has a private right of action to obtain statutory damages under § 605 because it had proprietary rights to exhibit UFC 168. See 47 U.S.C. § 605(d)(6), (e)(3)(C)(ii). Section 605 is a strict liability statute and only applies to unauthorized interceptions of signals through radio or satellite. Joe Hand Promotions, Inc. v. 152 Bronx, L.P., 11 F.Supp.3d 747, 753 (S.D. Tex. March 26, 2014); see also J&J Sports Prods., Inc. v. Mandell Family Ventures, L.L.C., 751 F.3d 346, 351 (5th Cir. 2014). To establish liability under § 605, Joe Hand must show that (1) UFC 168 was exhibited at Republica and (2) that Joe Hand did not authorize that particular exhibition. J&J Sports Prods., Inc. v. Little Napoli, Inc., No. H-13-1237, 2014 WL 3667903, at *2 (S.D. Tex. July 22, 2014); Joe Hand Promotions, Inc., v. Lee, No. H-11-2904, 2012 WL 1909348, at *3 (S.D. Tex. May 24, 2012).

         To date, Defendants have not responded to Joe Hand's requests for admissions. Thus, the admissions will be deemed admitted as a matter of law. Fed.R.Civ.P. 36(a)(3); see also Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 2008) (“[A] matter in a request for admissions is admitted unless the party to whom the request is directed answers or objects to the matter within 30 days.”). Thus, Izalco admits that it intercepted and exhibited UFC 168 at Republica. Dkt. 22-1 at 3, 8, 13. Izalco also admits that it was unauthorized to exhibit UFC 168. Id. Therefore, because UFC 168 was exhibited at Republica without Joe Hand's authorization, Izalco is liable under § 605.

         Courts have also interpreted § 605 to hold an individual liable if the individual had: (1) the right and ability to supervise the unauthorized activities of the establishment in those activities and (2) a direct financial interest in those activities. Little Napoli, Inc., 2014 WL 3667903, at *2. Here, David and Teodoro Aguiluz admit that they had a right and the ability to supervise the exhibition of UFC 168 at Republica. Dkt. 22-1 at 7, 12. Both also admit to having a financial interest in the exhibition. Id. Therefore, because ...


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