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J&J Sports Productions, Inc. v. Out in Cold, Inc.

United States District Court, E.D. Louisiana

February 19, 2019


         SECTION “F”



         Before the Court is the plaintiff's motion for summary judgment. For the reasons that follow, the motion is GRANTED.


         This lawsuit arises out of the interception and broadcast of a pay-per-view boxing fight at a neighborhood bar in New Orleans, Louisiana.

         J&J 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.

         Out in 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.[1] It is undisputed that Pete's was not granted a license to receive the television signal for the program.[2]

         On 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 damages.


         Federal 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).

         The 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); Fed.R.Civ.P. 56(c)(2).

         “[T]he 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.”).

         Summary 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 ...

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