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J&J Sports Production, Inc. v. Fifth Club, Inc.

United States District Court, W.D. Texas, Austin Division

April 16, 2019

J&J SPORTS PRODUCTIONS, INC., as Broadcast Licensee of the September 13, 2014 "Mayhem" Floyd Mayweather, Jr.
v.
Marcos Rene Maidana Fight Program, Plaintiff,
v.
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.

          ORDER

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE

         BE IT 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.

         Background

         Plaintiff 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.

         The 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 Id. [#16-l]Ex.A-latl.

         The 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. Id.

         On the 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. F.[1] 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.

         On 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.[2] Mot. Summ. J. [#16] at 10. This pending motion has been briefed and is ripe for review.

         Analysis

         I. Legal Standard

         A. Summary Judgment

         Summary 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.

         Once 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.

         "Only 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 ...


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