Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J&J Sports Productions, Inc. v. Los Taquitos Bar and Grill LLC

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

August 19, 2019

J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
LOS TAQUITOS BAR AND GRILL LLC; dba LOS TAQUITOS; dba LOS TAQUITOS BAR AND GRILL, et al, Defendants.

          OPINION & ORDER

          Micaela Alvarez United States District Judge.

         The Court now considers the motion to dismiss[1] filed by Los Taquitos Bar and Grill LLC, individually and d/b/a Los Taquitos and d/b/a Los Taquitos Bar and Grill (“Los Taquitos LLC”); Mario Garza, individually and d/b/a Los Taquitos and d/b/a Los Taquitos Bar and Grill (“Mario Garza”); and Olga L. Garza, individually and d/b/a Los Taquitos and d/b/a Los Taquitos Bar and Grill (“Olga Garza”) (collectively, “Defendants”). J&J Sports Productions, Inc. (“Plaintiff”) timely filed a response.[2] After considering the motion, record, and relevant authorities, the Court DENIES the motion.

         I. Background

         Plaintiff brings this suit under the Federal Communications Act of 1934[3](“Communications Act”) against Defendants for the May 7, 2016 broadcast of Saul Alvarez v. Amir Khan, a WBC World Middleweight Championship Fight Program (“WBC Fight”), at Defendants' establishment, Los Taquitos Bar and Grill.[4] Plaintiff alleges it held the exclusive authority to sublicense the WBC Fight throughout Texas on May 7, 2016.[5] Plaintiff further alleges Defendants broadcast the WBC Fight at Los Taquitos Bar and Grill on May 7, 2016, without paying sublicense fees to Plaintiff in violation of the Communications Act.[6]

         On May 6, 2019, Plaintiff filed its complaint against all Defendants, bringing claims for “violation of 42 U.S.C. § 553 or § 605” and seeking statutory damages under 47 U.S.C. § 553 of up to $10, 000.00; statutory damages for willfulness under 47 U.S.C. § 553 of up to $50, 000.00; statutory damages under 47 U.S.C. § 605 of up to $10, 000.00; statutory damages for willfulness under 47 U.S.C. § 605 of up to $100, 000.00; reasonable attorney's fees; pre and post-judgment interest; and other entitled relief.[7]

         Plaintiff requested issuance of summons for all Defendants on May 21, 2019, [8] and all Defendants were personally served on June 3, 2019.[9] However, Defendants claim the statute of limitations expired on May 7, 2019.[10] Thus, Defendants filed the instant motion to dismiss, arguing the statute of limitations bars Plaintiff's suit because Plaintiff served Defendants after the expiration of the statute of limitations.[11] Defendants also argue Plaintiff's suit against Los Taquitos LLC is barred by the Texas Organizations Code and that Plaintiff fails to state a claim against all Defendants.[12] Plaintiff responded.[13]

         The motion is now ripe for review. The Court turns to its analysis.

         II. Discussion

         A. Plaintiff's service on Defendants after the expiration of the statute of limitations does not bar Plaintiff's claims against Defendants.

         The instant issue centers on Plaintiff filing suit within the statute of limitations but serving Defendants about one month after the expiration of the statute of limitations. Defendants argue the statute of limitations bars Plaintiff's suit because Plaintiff did not timely or “diligently” serve Defendants when “Defendants were served 27 days after limitations expired.”[14] Plaintiff argues it effected service timely and diligently under Federal Rule of Civil Procedure (“Rule”) 4(m).[15]

         Ultimately, the issue may be resolved as a matter of law because the Texas “due diligence” standard, which is a factual determination according to Texas courts, does not apply. The Court finds the instant issue is a matter of law and that Plaintiff's claims are not barred by the statute of limitations.

         The Fifth Circuit has held that the three-year statute of limitations from the Copyright Act applies to a claim under the Communications Act.[16] The parties agree that the day of the alleged broadcast was May 7, 2016, and the expiration of the statute of limitations was May 7, 2019.[17]Although Plaintiff filed suit within the three-year statute of limitations on May 6, 2019, Plaintiff did not request issuance of summons as to all Defendants until May 21, 2019.[18] Plaintiff then did not serve Defendants until June 3, 2019.[19] Thus, the Court must address whether the timely filing of Plaintiff's complaint stopped limitations or tolled limitations pending Plaintiff's diligence on effectuating service.

         The Supreme Court has held “in actions arising under federal law, commenced in compliance with the governing statute of limitations, the manner and timing of serving process are generally nonjurisdictional matters of ‘procedure' controlled by the Federal Rules.”[20] The Federal Rules also provide that “[a] civil action is commenced by filing a complaint with the Court.”[21] Thereafter, a plaintiff “on commencement of an action . . . must immediately resort to Rule 4 for instructions on service of process.”[22] In turn, Rule 4(m)'s time limit for service “operates not as an outer limit subject to reduction, but as an irreducible allowance.”[23] Thus, if commenced timely and served within the time limit provided by Rule 4(m), a plaintiff's claim is not time barred.

         Here, Plaintiff's claim only invokes federal question jurisdiction. Thus, Plaintiff timely commenced its action by filing its complaint within the statute of limitations.[24] Thereafter, Plaintiff was only required to effectuate service within the time limits set out in Rule 4(m). Plaintiff did so. Accordingly, the Court DENIES Defendants' motion on these grounds.

         B. The Texas Business Organizations Code does not bar Plaintiff's claim against Los Taquitos LLC, a now expired LLC.

         Defendants argue Plaintiff's claim is not an ‘existing claim' as defined by the Texas Business Organizations Code because Los Taquitos LLC no longer exists and Plaintiff's claim is now barred by limitations.[25] Plaintiff argues its claim against Los Taquitos LLC “existed before [] [Los Taquitos LLC] was terminated.”[26] The Court finds Defendants' argument is without merit.

         Under the Texas Business Organizations Code, an “existing claim” means “a claim that existed before the entity's termination and is not barred by limitations; or a contractual obligation incurred after termination.”[27] Section 11.356 provides:

(a) . . . [T]he terminated filing entity continues in existence until the third anniversary of the effective date of the entity's termination only for purposes of:
(1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought by or against the terminated entity;
(2) permitting the survival of an existing claim by or against the terminated filing entity . . .
(b) A terminated filing entity may not continue its existence for the purpose of continuing the business or affairs for which the terminated filing entity was formed unless the terminated filing entity is reinstated under Subchapter E.
(c) If an action on an existing claim by or against a terminated filing entity has been brought before the expiration of the three-year period after the date of the entity's termination and the claim was not extinguished under Section 11.359, the terminated filing entity continues to survive for purposes of:
(1) the action until all judgments, orders, and decrees have been fully executed; and
(2) the application or distribution of any property of the terminated filing entity as provided by Section 11.053 until the property ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.