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J&J Sports Productions, Inc. v. Gonzalez

United States District Court, N.D. Illinois, Eastern Division

January 27, 2015



JOHN W. DARRAH, District Judge.

Plaintiff J&J Sports Productions, Inc. has brought this action against Defendants for Defendants' alleged wrongful interception and distribution of a televised boxing match. Plaintiff has now moved for summary judgment. For the reasons discussed below, Plaintiff's Motion [33] is denied.


Procedural History

On May 2, 2013, Plaintiff filed its Complaint, alleging the following three claims: violation of 47 U.S.C. § 605 (Count I); violation of 47 U.S.C. § 553 (Count II); and conversion (Count III). On November 4, 2013, Defendants filed an Answer. On January 21, 2014, Plaintiff served discovery requests upon defense counsel. Defendants did not respond to Plaintiff's requests and repeatedly failed to comply with this Court's Orders to produce discovery.

On November 6, 2014, based on Defendants' repeated discovery misconduct, this Court granted Plaintiff's Motion to Bar, barring Defendants from opposing Plaintiff's claims, deeming facts admitted, and finding Defendants in default, pursuant to Rule 37(b). The Court also granted Plaintiff's motion for an extension of time to file for summary judgment. On December 12, 2014, Plaintiff filed the instant Motion. Defendants have not filed a response.

Factual Background [1]

Plaintiff is a California corporation and distributor of televised sporting events. Plaintiff purchased the exclusive nationwide television distribution rights to the boxing match, Manny Pacquiao v. Shane Mosley, WBO World Welterweight Championship Fight Program, which took place on May 7, 2011 (the "Program"). (Pl.'s Rule 56 Statement of Material Facts ("SMF") ¶ 4.) Defendant Jose Gonzalez is an officer, director, shareholder and/or principal of Defendant Joey's Shrimp House, Inc. d/b/a Joey's Shrimp House, which is located at 1432 North Western Avenue, Chicago, Illinois ("Joey's Shrimp House"). (Def's Answer ¶ 8.) On May 7, 2011, Plaintiff's private investigator, Aaron Lockner, witnessed the Program being televised to patrons at Joey's Shrimp House. (SMF ¶¶ 5-6.) The price that Defendants would have had to pay for the right to televise the Program was $2, 200.00. ( Id. ¶ 8.) Defendant Gonzalez did not pay a licensing fee to Plaintiff for the rights to show the Program at Joey's Shrimp House. ( Id. ¶ 10.)


Summary judgment is proper "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). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying the evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If the moving party meets this burden, the nonmoving party cannot rest on conclusory pleadings but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986)).


Based on Defendants' default and failure to respond to Plaintiff's Motion, all allegations in the Complaint and the Statement of Material Facts are deemed admitted. See Black v. Lane, 22 F.3d 1395, 1397 n.4 (7th Cir. 1994); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

The issue that arises, then, is which statute applies to impose liability and calculate damages. In its Complaint, Plaintiff alleged that Defendants violated both §§ 553 and 605. In the relief requested in its Motion, Plaintiff seeks statutory damages under § 553 totaling $13, 800.00, plus attorneys' fees and costs. (Pl.'s Mot. at 4.) However, in the relief requested in its supporting Memorandum, Plaintiff argues that Defendants violated § 605 and seeks the same amount of statutory fees under § 605. (Pl.'s Mem. in Support of Mot. at 10). Furthermore, in both its Motion and its supporting brief, Plaintiff refers to both statutes. Plaintiff's confused approach to damages requires consideration of these two statutes.

Section 553(a)(1) prohibits "intercepting or receiving any communication services offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." 47 U.S.C. § 553(a)(1) (emphasis added). Section 605, in contrast, states, inter alia, that "[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, ...

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