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J & J Sports Productions Inc. v. Two of A Kind 2, LLC

United States District Court, E.D. Missouri, Eastern Division

November 16, 2016




         This matter is before the Court on Defendants' Motion for Summary Judgment, filed September 1, 2016. (ECF No. 14). The motion is fully briefed and ready for disposition.


         Plaintiff J & J Sports Productions, Inc. owned the nationwide television distribution rights to “Manny Pacquiao v. Timothy Bradley II, WBO Welterweight Championship”, a telecast which took place on April 12, 2014. (Compl., ¶ 9).[1] Plaintiff sold the right to exhibit the Program publically to various commercial establishments, including hotels, racetracks, casinos, bars, taverns, restaurants, and social clubs. (Id., ¶ 10). According to Plaintiff, Defendants Two of a Kind 2, LLC, and Jesse C. Washington (“Washington”) illegally intercepted the Program, and showed it to patrons at the Two Of A Kind 2 bar located at 6029 Natural Bridge Avenue, St. Louis, MO, 63120. (Id., ¶¶ 6, 12).

         With respect to Washington Plaintiff alleges, upon information and belief, that he “is/was [the] owner, and/or operator, and/or licensee, and/or permittee, and/or person in charge, and/or individual with dominion, oversight and management of the commercial establishment doing business as Two Of A Kind 2 Lounge.” (Compl., ¶ 7). Defendants counter with a sworn declaration from Washington, in which he attests that while he owned the property located at 6029 Natural Bridge Avenue, at all relevant times the property was leased to Mr. John Nails (“Nails”), the sole operator and manager of the Two Of A Kind 2 bar.[2] (Defendants' Motion for Summary Judgment, att. Exh. D, ¶¶ 3, 4). Washington further states that he had no involvement with or knowledge of the Program referenced in Plaintiff's Complaint, and that neither he nor anyone acting on his behalf was present at the Two Of A Kind 2 bar on April 12, 2014. (Id., ¶¶ 5, 9). Plaintiff has not presented any facts to contradict Washington's assertions, but has presented evidence tending to confirm that he was the owner of the premises, and the sole owner of the corporate Defendant, Two Of A Kind 2, LLC. (Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (“Plaintiff's Opp.”), P. 4 and att. Exh. C).

         Plaintiff filed the instant Complaint on November 25, 2015, asserting claims for violation of the Unauthorized Reception of Cable Services statute, 47 U.S.C. § 553[3] (Count I), violation of the Unauthorized Publication or Use of Communications statute, 47 U.S.C. § 605[4] (Count II), and state law conversion (Count III). (Id., ¶¶ 8-25). The Counts are all directed at the actions of “Defendants”, collectively.

         As stated above, Defendants filed the instant Motion for Summary Judgment on September 1, 2016, claiming (1) that Washington may not be held individually liable, and (2) that Two Of A Kind 2, LLC may not be held liable because there exists no evidence of unlawful interception of a radio or cable transmission. (ECF No. 14).


         The Court may grant a motion for summary judgment if, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law determines which facts are critical and which are irrelevant. Only disputes over facts that might affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

         A moving party always bears the burden of informing the Court of the basis of its motion. Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the “mere existence of some alleged factual dispute.” Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its pleadings. Anderson, 477 U.S. at 256.

         In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255. The Court's function is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Id. at 249.


         I. Individual Liability For Washington

         As noted above, Counts I and II of Plaintiff's Complaint allege that Washington is liable under 47 U.S.C. § 605, and 47 U.S.C. § 553, both of which prohibit cable piracy. Counts I and II do not distinguish between Washington's alleged actions and those of Two Of A Kind 2, LLC. (See Complaint, ¶¶ 12-16, 18-21 (making allegations only against the “Defendants”)). The Complaint ...

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