United States District Court, E.D. Louisiana
J&J Sports Productions, Inc.
MATTECH, LLC d/b/a JAZZ DAIQUIRI LOUNGE, ET AL SECTION
ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
Before the Court is a Motion for Summary Judgment by defendants Mattech, LLC d/b/a Jazz Daiquiri Lounge ("Mattech") and Jeffrey Thomas ("Thomas") and a Cross-Motion for Summary Judgment by plaintiff, J&J Sports Productions, Inc. Rec. Docs. 25, 28. Both motions are opposed. Rec. Docs. 27, 30. Having considered the record, the applicable law, and the memoranda of counsel, the Court GRANTS IN PART and DENIES IN PART defendants' motion and GRANTS plaintiff's motion, for the reasons discussed herein.
I. Factual Background
Defendant, Mattech, d/b/a Jazz Daiquiri Lounge, is a New Orleans LLC that owns and operates a lounge at 3400 South Claiborne Avenue, New Orleans, LA 70125 that is licensed to serve alcoholic beverages. Rec. Doc. 1. Defendant Jeffrey Thomas is the sole registered member and manager of Mattech. Rec. Doc. 28-8. On May 5, 2012, defendants aired the broadcast of "Floyd Mayweather, Jr. v. Miguel Cotto, WBA World Light Middleweight Championship Fight Program" ("the program"). Rec. Doc. 10 at 4. Defendants purchased the program through a DirecTV account that it claims was associated with the lounge at 3400 South Claiborne Avenue and created by defendant, John Matthews. Id. at 4; Rec. Doc. 28-12.However, plaintiff, a distributor of sports and entertainment programming, owned the exclusive license to exhibit the program at "commercial closed-circuit television exhibition outlets, such as theaters, bars, clubs, lounges, restaurants and the like..." Rec. Doc. 27-2 at 2. Defendants claim that they were unaware that they were required to acquire a sub-license from plaintiff, and that they believed that their purchase through DirecTV entitled them to legally air the program. Rec. Doc. 25 at 10-11.
On the night of May 5, 2012, roughly fifteen to twenty-five people patronized the lounge. Rec. Doc. 28-7. According to an investigator hired by plaintiff who was present during the broadcast, the program was shown on a television in the corner of the lounge, but audio commentary could not be heard as loud rap music was playing at the same time. Id. Defendants assert that they did not charge a cover for patrons to watch the program, did not increase food or beverage pricing, and did not advertise that they would air the program. Rec. Doc. 25 at 11. Defendants also maintain that the number of patrons on that night was typical for a Saturday night. Id.
On April 30, 2014, plaintiff brought this action against defendants, claiming that defendants violated 47 U.S.C. §605 and 47 U.S.C. §553 by airing the program without obtaining the requisite sub-license. Rec. Doc. 1 at 2.
II. Standard of Review
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [discovery], together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the initial burden is met, the nonmoving party must "designate specific facts showing there is a genuine issue for trial" using evidence cognizable under Rule 56. Id. at 324, 106 S.Ct. at 2253. When reviewing a motion for summary judgment, a court must view the evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Daniels v. City of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment does not allow a court to resolve credibility issues or weigh evidence. Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
a. Defendants' Motion for Summary Judgment
1. Applicability of §605 and §553
Defendants argue that as an initial matter, the Court must dismiss either plaintiff's claim under 47 U.S.C. §605 or its claim under 47 U.S.C. §553 because the claims are mutually exclusive. Defendants cite to J & J Sports Prods. v. Coyne, 857 F.Supp.2d 909, 914 (N.D. Cal. 2012) as authority that an action may be brought under only one of these two sections. Rec. Doc. 25 at 5. However, this case actually remarks that there is a lack of consensus among district courts as to whether a single act may trigger liability under both provisions. Id. Nonetheless, even when a defendant is found liable under both provisions, courts have held that recovery is not cumulative. See, e.g., Joe Hand Promotions, Inc. v. Lee, CIV.A. H-11-2904, 2012 WL 1909348, at *3 (S.D. Tex. May 24, 2012).
The Court finds that the claim under §553 must be dismissed as that section does not regulate transmissions via satellite. §605 covers transmissions "by wire or radio" and provides that:
no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or ...