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J&J Sports Productions Inc. v. La Pica #3 LLC

United States District Court, E.D. Wisconsin

April 7, 2016

LA PICA #3 LLC and WILLIAM RIVERA, Defendants.



Plaintiff J&J Sports Productions, Inc. (“J&J”) alleges that the defendants, La Pica #3, LLC (“La Pica”) and William Rivera, showed the May 4, 2013 (“Fight Night”) Floyd Mayweather, Jr. v. Roberto Guerrero WBC Welterweight Championship Fight (the “Fight”) without the proper commercial licensing agreement. (See Docket #1). As such, J&J alleges violations 47 U.S.C. §§ 553 and 605. (Docket #1 ¶¶ 11-26).

On January 15, 2016, the defendants moved for summary judgment. (Docket #14). On February 17, 2016, J&J filed its opposition (Docket #16), and on March 2, 2016, the defendants filed a reply (Docket #22). On March 7, 2016, J&J filed a motion for leave to file a surreply (Docket #23), along with the surreply as an attachment (Docket #23-1). Because the defendants’ reply brief raised new issues related to the timeliness of the opposition, the Court will grant J&J’s motion to file a surreply. The motions are now fully briefed and ready for disposition. As discussed below, the Court finds material issues of fact exist to preclude summary judgment and, thus, the Court will deny the defendants’ motion for summary judgment.

As a preliminary matter, however, the Court must first discuss the parties’ arguments related to the timeliness of certain filings pertaining to summary judgment. First, J&J argues that the Court should not consider the motion for summary judgment because the defendants filed their statement of facts untimely. Second, the defendants argue that J&J’s opposition was untimely. The Court need not dwell on these issues, however, because it denies summary judgment on the merits and finds that no prejudice arose even if the submissions were untimely. As such, and in accordance with the Seventh Circuit’s well-established policy favoring the resolution of cases on the merits, see Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007); Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004), the Court will disregard the parties’ arguments related to the timeliness of the briefing.


J&J was granted exclusive commercial distribution rights to the Fight. (PPFF ¶ 1). As such, commercial establishments that sought to show the fight had to pay J&J a licensing fee, which varied by the size of the establishment. (PPFF ¶ 7).

La Pica is a bar located in Milwaukee, Wisconsin. (DPFF ¶ 1). The Fight was shown in La Pica pursuant to the request of a customer who brought in a digital TV box.[2] (DPFF ¶ 3). The defendants never paid a licensing fee to J&J to watch the fight (PPFF ¶ 5). The defendants instead maintain that the Fight was purchased through an unnamed television provider’s pay-per-view service (DPFF ¶ 5). A five dollar cover charge was in effect on Fight Night. The defendants allege that this was the standard cover for a Saturday night, and was not a special charge to view the Fight. (DPFF ¶ 10). Mr. Rivera is the registered agent for La Pica, a part-owner, and the manager of the bar. (DPFF ¶ 2; PPFF ¶¶ 2- 3). Mr. Rivera was present at La Pica on Fight Night, (PPFF ¶ 3), however, he maintains that he did not specifically authorize showing the Fight, (DPFF ¶ 8).

J&J’s complaint alleges violations of 47 U.S.C. §§ 553 and 605. J&J’s complaint presents alternative theories of liability depending on whether the defendants intercepted the signal via satellite or cable. (See Docket #1 ¶¶ 11-26). Section 553 governs the interception of cable television programming traveling over a cable network and gives the Court discretion to award between $250.00 and $10, 000.00 in statutory damages for “all violations.” 47 U.S.C. § 553; United States v. Norris, 88 F.3d 462, 468-69 (7th Cir. 1996). It also allows the maximum statutory award to be increased by up to $50, 000.00 if a violation was committed willfully for commercial advantage. 47 U.S.C. § 553(c)(3)(B).

Section 605 governs the interception of programming as it travels through the air, i.e., by satellite, and allows for statutory damages ranging from $1, 000.00 to $10, 000.00 for “each violation.” 47 U.S.C. § 605. The maximum penalty increases to $100, 000.00 per violation if the violations were committed willfully for commercial advantage. 47 U.S.C. § 605(e)(3)(c)(ii).


“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: “(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

On summary judgment, courts must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014). Additionally, “[o]n summary judgment a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). “Summary judgment is not appropriate ‘if the ...

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