Entertainment by J & J Inc. v. Al-Waha Enterprises

• Decision Date: 25 July 2002
• Docket Number: Civil Action No. H-01-2514.
• Citation: 219 F.Supp.2d 769
• Parties: ENTERTAINMENT BY J & J, INC., Plaintiff, v. AL-WAHA ENTERPRISES, INC. a/k/a El-Mirage Mediterranean Cuisine d/b/a El-Mirage a/k/a El-Mirage Restaurant and Iyad Omar Khalil, Defendants.
• Court: U.S. District Court — Southern District of Texas

219 F.Supp.2d 769

ENTERTAINMENT BY J & J, INC., Plaintiff, v. AL-WAHA ENTERPRISES, INC. a/k/a El-Mirage Mediterranean Cuisine d/b/a El-Mirage a/k/a El-Mirage Restaurant and Iyad Omar Khalil, Defendants.

Civil Action No. H-01-2514.

United States District Court, S.D. Texas.

July 25, 2002.

Mark C. Watler, Ross Banks et al, Houston, TX, for Entertainment by J&J Inc.

Al-Waha Enterprises Inc., pro se.

John Vincent Burger, Burger Law Firm, Houston, TX, for Al-Waha Enterprises Inc., Iyad Omar Khalil.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the Court is Plaintiff Entertainment by J & J, Inc.'s ("EJJ") Motion for Summary Judgment (# 20). EJJ seeks summary judgment against Defendant Al-Waha Enterprises, Inc. a/k/a El-Mirage Mediterranean Cuisine d/b/a El-Mirage a/k/a El-Mirage Restaurant ("Al-Waha") on its claims under Section 705 of the Federal Communications Act of 1934, as amended, 47 U.S.C. §§ 553, 605 ("FCA"). Iyad Omar Khalil ("Khalil") has previously been dismissed as a defendant in this action without prejudice due to his pending, personal bankruptcy proceeding. Having reviewed the motion, the summary judgment evidence, the pleadings, and the applicable law, the court is of the opinion that summary judgment is warranted.

I. Background

Plaintiff EJJ is a corporation organized and existing under the laws of the State of California with its principal place of business located in San Jose, Santa Clara County, California. Defendant Al-Waha is a corporation incorporated in Texas, otherwise known as "El-Mirage Restaurant," which conducts business utilizing the assumed names "El-Mirage" and/or "El-Mirage Mediterranean Cuisine," located at 9350 Westheimer Road, Houston, Harris County, Texas. Khalil is an individual, residing in Houston, Harris County, Texas, who is an officer, incorporator, and director of Defendant Al-Waha.

On June 1, 1999, EJJ entered into a closed-circuit television license agreement ("the License Agreement") to exhibit the September 18, 1999, championship boxing match between Oscar De La Hoya and Felix Trinidad from the Mandalay Bay Resort & Casino in Las Vegas, Nevada, including undercard and preliminary bouts (collectively the "Event"), at locations throughout Texas, including theaters, arenas, bars, lounges, and restaurants. The Event was to be exhibited in commercial establishments only if the closed-circuit broadcast was contractually authorized by EJJ.

Pursuant to the License Agreement, EJJ marketed and distributed the closed-circuit rights to commercial establishments in exchange for a sublicense fee. The establishments were contractually required to charge their patrons an admission fee for attending the exhibition of the Event. The interstate satellite transmission of the Event was electronically coded or scrambled and was not intended for receipt by the general public. Commercial establishments were provided electronic decoding equipment and/or satellite coordinates necessary to receive the signal to broadcast the Event clearly.

The record reflects that Al-Waha did not contract with EJJ to obtain the rights to broadcast the Event, and on September 18, 1999, exhibited an unauthorized telecast of the Event at the premises of El-Mirage. On the night of the Event, a private investigator for EJJ, Christopher Jenkins ("Jenkins"), observed the Event being telecast to approximately seventy-five persons at the restaurant.

EJJ instituted this action on July 26, 2001, asserting that Al-Waha, through the commercial establishment, El-Mirage Restaurant, willfully and wrongfully intercepted and exhibited the Event, without authorization and without paying EJJ a sublicense fee, in violation of the FCA. On April 25, 2002, EJJ filed a Motion for Summary Judgment attaching uncontroverted affidavits establishing Al-Waha's violation of 47 U.S.C. §§ 553 and 605 and seeking the recovery of statutory damages in the amount of $25,000 to compensate for willful violation of the Act, attorney's fees of $4,000, and costs of court. On May 6, 2002, Khalil filed a Suggestion of Bankruptcy. Neither Khalil nor Al-Waha responded to Plaintiff's motion for summary judgment.

II. Analysis

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir.1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir.1997), cert. denied, 523 U.S. 1073, 118 S.Ct. 1514, 140 L.Ed.2d 667 (1998). A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party, however, need not negate the elements of the nonmovant's case. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994)).

Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir.1999), cert. denied, 528 U.S. 1160, 120 S.Ct. 1171, 145 L.Ed.2d 1080 (2000); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321-22; Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir.1993)); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097; Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321; Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997), cert. denied, 525 U.S. 1067, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999); Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir.1997), cert. denied, 525 U.S. 1103, 119 S.Ct. 868, 142 L.Ed.2d 770 (1999). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5, 111 S.Ct. 401, 112 L.Ed.2d 349 (1990); see Christopher Vill. Ltd. P'ship v. Retsinas, 190 F.3d 310, 314 (5th Cir.1999); Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998); Marshall, 134 F.3d at 321. The evidence is construed "in favor of the non-moving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999); accord Little, 37 F.3d at 1075 (citing Lujan v. National Wildlife Fed'n, 497 U.S 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Furthermore, "`only reasonable inferences can be drawn from the evidence in favor of the nonmoving party.'" Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (emphasis in original) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir.1989)). "If the [nonmoving party's] theory is . . . senseless, no reasonable jury could find in its favor, and summary judgment should be granted." Id. at 468-69, 112 S.Ct. 2072. The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Little, 37 F.3d at 1075; see Hart, 127 F.3d at 435; Wallace, 80 F.3d at 1047; Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which it bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the...