United States District Court, E.D. Louisiana
J&J SPORTS PRODUCTIONS, INC.
OUT IN THE COLD, INC. D.B.A. PETE'S OUT IN THE COLD
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is the plaintiff's motion for summary judgment.
For the reasons that follow, the motion is GRANTED.
lawsuit arises out of the interception and broadcast of a
pay-per-view boxing fight at a neighborhood bar in New
Sports Productions, Inc. is a closed-circuit distributor of
sports and entertainment programming. In that capacity,
J&J purchased and retained the exclusive commercial
exhibition rights to “The Fight of the
Century” (Manny Pacquiao vs. Floyd Mayweather,
Jr.), which was broadcast on May 2, 2015. J&J also
marketed and granted broadcast rights in the program to a
variety of commercial establishments, in exchange for the
payment of a sublicense fee.
the Cold, Inc., doing business as Pete's Out in the Cold,
is a Louisiana corporation owned and operated by Kevin Lee
and Gary Herty. Pete's Out in the Cold, in turn, operates
a bar located at 701 6th Street, New Orleans,
Louisiana 70115. On May 2, 2015, a private investigator
working for J&J visited Pete's at approximately 9:45
p.m. The investigator observed that one of three televisions
in the establishment was turned on and tuned into the fight.
He observed a scene with “Leo Santa Cruz in blue trunks
and Jose Cayetano in black and red trunks at 1:08 remaining
in the 9th round.” The investigator also
conducted three separate headcounts which demonstrated the
presence of about 18 patrons in the bar. It is undisputed
that Pete's was not granted a license to receive the
television signal for the program.
April 28, 2018, J&J sued Pete's Out in the Cold,
Kevin Lee, and Gary Herty, alleging that the defendants
unlawfully broadcast the Pacquiao-Mayweather fight without
obtaining J&J's permission or paying J&J the
requisite sublicense fee. Because J&J was unable to serve
the company's owners, defendants Lee and Herty were
dismissed without prejudice on September 12, 2018. J&J
now moves for summary judgment on the issues of liability and
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No. genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine dispute of
fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion. See id. In this
regard, the non-moving party must do more than simply deny
the allegations raised by the moving party. See Donaghey
v. Ocean Drilling & Exploration Co., 974 F.2d 646,
649 (5th Cir. 1992). Rather, he must come forward with
competent evidence, such as affidavits or depositions, to
buttress his claims. Id. Hearsay evidence and
unsworn documents that cannot be presented in a form that
would be admissible in evidence at trial do not qualify as
competent opposing evidence. Martin v. John W. Stone Oil
Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987);
nonmoving party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Hathaway v. Bazany,
507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks
and citation omitted). Ultimately, “[i]f the evidence
is merely colorable . . . or is not significantly probative,
” summary judgment is appropriate. Anderson,
477 U.S. at 249 (citations omitted); King v. Dogan,
31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated
documents are improper as summary judgment evidence.”).
judgment is also proper if the party opposing the motion
fails to establish an essential element of his case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most
favorable to the non-moving party. Scott v. Harris,
550 U.S. 372, 378 (2007). Although the Court must
“resolve factual controversies in favor of the
nonmoving party, ” it must do so “only where
there is an actual controversy, that is, when both parties
have submitted ...