United States District Court, W.D. Texas, Austin Division
J&J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 13, 2014 "Mayhem" Floyd Mayweather, Jr.
Marcos Rene Maidana Fight Program, Plaintiff,
FIFTH CLUB, INC., individually and d/b/a Tejano Ranch; SALIM SALEM, a/k/a SALIM G. SALEM, individually and d/b/a Tejano Ranch; and GHASSAN NAJJAR, individually and d/b/a Tejano Ranch, Defendants.
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff J&J Sports
Productions, Inc.'s Motion for Summary Judgment [#16] and
the Responses of Defendants Fifth Club, Inc. ("Fifth
Club") [#18], Salim Salem [#20], and Ghassan Najjar
[#21] thereto. Having reviewed the documents, the relevant
law, and the file as a whole, the Court now
enters the following opinion and orders.
markets and licenses commercial exhibitions of pay-per-view
prize fighting events. Mot. Summ. J. [#16] at 6. Defendant
Fifth Club is a Texas corporation that formerly owned Tejano
Ranch, a dance and night club in Austin, Texas. Fifth
Club's Resp. [#18] at 2. Defendants Salem and Najjar are
shareholders and officers of Fifth Club. Id.
dispute in this case centers around the commercial exhibition
of a fight between Floyd Mayweather, Jr. and Marcos Rene
Maidana and related undercard bouts on September 13, 2014
(the "Event"). Under an agreement with the
Event's promoters, Plaintiff held exclusive rights to
exhibit the Event in Texas and to sublicense its exhibition
rights to commercial establishments throughout Texas. Mot.
Summ. J. [#16] at 6. Thus, a commercial establishment in
Texas could legally exhibit the Event only if it had obtained
Plaintiffs authorization. Id. at 7; see also
transmission of the Event originated via a satellite feed.
Id. [#16] at 7. To ensure the Event could only be
shown by commercial establishments that had received
authorization from Plaintiff, the feed was electronically
coded, or "scrambled." Id. Commercial
establishments wanting to exhibit the Event were required to
pay Plaintiff a sublicensing fee for the Event based on the
establishment's capacity. Id. In return,
Plaintiff either notified the establishments' cable or
satellite providers to descramble the feed or provided the
establishments with equipment that could descramble the feed.
night of the Event, an auditor entered Tejano Ranch at
approximately 10:45 p.m. after paying a $5 cover charge.
Id. [#16-1] Ex. A-2. Upon entering Tejano Ranch, the
auditor observed the Event being broadcast on eight
television screens to approximately 180 patrons. Id.
An investigator hired by Plaintiff also visited Tejano Ranch
and recorded a minute-long video showing the Event being
broadcast on at least one screen. Id. Ex.
There is no evidence of an agreement between Plaintiff and
Defendants to exhibit the Event at Tejano Ranch, and there is
no evidence any Defendant paid a licensing fee to Plaintiff
to exhibit the Event.
September 12, 2017, Plaintiff filed this suit alleging
Defendants violated the Communications Act of 1934 by
intercepting and exhibiting the Event at Tejano Ranch without
authorization. Compl. [#1]; see also 47 U.S.C.
§§ 553, 605. Plaintiff now moves for summary
judgment on its § 605 claim. Mot. Summ. J. [#16] at 10.
This pending motion has been briefed and is ripe for review.
judgment shall be rendered when the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine dispute as to any material fact and
that 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, 323-25 (1986); Washburn v. Harvey, 504
F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all inferences drawn
from the factual record in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Washburn, 504
F.3d at 508. Further, a court "may not make credibility
determinations or weigh the evidence" in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
the moving party has made an initial showing that there is no
evidence to support the nonmoving party's case, the party
opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue.
Matsushita, 475 U.S. at 586. Mere conclusory
allegations are not competent summary judgment evidence, and
thus are insufficient to defeat a motion for summary
judgment. Turner v. Baylor Richardson Med. Ctr., 476
F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not
competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his claim. Adams v.
Travelers Indent. Co. of Conn., 465 F.3d 156, 164 (5th
Cir. 2006). Rule 56 does not impose a duty on the court to
"sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for
summary judgment. Id.
disputes over facts that might affect the outcome of the suit
under the governing laws will properly preclude the entry of
summary judgment." Anderson, 477 U.S. at 248.
Disputed fact issues that are "irrelevant and
unnecessary" will not be considered by a court in ruling
on a summary judgment motion. Id. If the nonmoving
party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which ...