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J&J Sports Productions, Inc. v. Beer 4 U, Inc.

United States District Court, D. Maryland

November 8, 2019

J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
BEER 4 U, INC. and SENA HYON KIM, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.

         Plaintiff J&J Sports Productions, Inc. ("J&J") alleges that Defendants Beer 4 U, Inc. and Sena Hyon Kim illegally exhibited a closed-circuit broadcast of a boxing match to which J&J owned the exclusive nationwide commercial distribution rights. J&J has asserted claims for violations of the Communications Act of 1934 ("the Communications Act"), 47 U.S.C. § 605 (2012), and the Cable Television Consumer Protection and Competition Act of 1992 ("the Cable Act"), 47 U.S.C. § 553. Pending before the Court is J&J's Motion for Summary Judgment on liability. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion will be GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         J&J distributes sports and entertainment programming through closed-circuit television. It owned the exclusive commercial exhibition licensing rights to the nationwide broadcast of the September 12, 2015 welterweight championship fight between Floyd May weather, Jr. and Andre Berto, as well as select undercard bouts, including the match between Badou Jack and George Groves (collectively, "the Fight").

         On September 12, 2015, the night of the Fight, two investigators engaged by J&J visited Defendants' commercial establishment, Beer 4 U Sports Bar ("the Sports Bar") on Crain Highway in Waldorf, Maryland. The first investigator, James Osgood, went to the Sports Bar at 9:10 p.m. He paid no cover charge for entry and ordered a drink from the bar. Osgood observed five televisions and a projection screen. According to Osgood, the Jack-Groves undercard boxing match was being shown on the screens. He counted the number of patrons inside the bar three times between his arrival and his departure at 9:20 p.m. He counted 32 patrons each time. Osgood estimated that the Sports Bar's maximum capacity was approximately 150 people.

         The second investigator, Melinda Johnson, arrived at the Sports Bar at 9:21 p.m. on the night of the Fight. She paid a $10.00 cover charge to enter the Sports Bar and observed nine televisions inside "showing a mix of ESPN, FX, and nothing." Joint Record ("J.R.") 16, ECF No. 44. She also saw a "Viewsonic projector displaying the boxing pay-per-view on the wall behind the stage." Id. Specifically, Johnson observed the Jack-Georges undercard fight projected onto the wall. She "noticed that the picture was lagging as if streaming from the Internet." Id. Johnson also counted the number of patrons inside the Sports Bar between her arrival and her departure from the bar at 9:55 p.m. On those occasions, she counted 39, 40, and 40 patrons, respectively. According to a posted Fire Marshal sign, Johnson saw that the Sports Bar's maximum capacity was 241 people.

         Defendant Sena Hyon Kim is the owner, a director, a shareholder, and the resident agent of Beer 4 U, Inc. ("the Corporation"), the corporate entity that owns the Sports Bar. Kim is also the manager of the Sports Bar and makes substantially all managerial decisions for it. The Sports Bar's bartenders act as her agents. She has a financial interest in the Sports Bar's activities.

         Kim admits that Defendants did not pay a commercial licensing fee to J&J or otherwise secure its permission to broadcast the Fight at the Sports Bar. She acknowledges that on the night of the Fight, "portions or moments from" the Fight "were exhibited ... in the performance area" of the Sports Bar. J.R. 39. Although Kim was present inside the Sports Bar on the night of the Fight, she denies any prior or first-hand knowledge of the Fight's broadcast inside the Sports Bar. According to Kim, the Fight was displayed by a third party without Defendants' knowledge or input. Rather, Kim asserts that she had specifically informed the Sports Bar's employees that no pay-per-view events were to be shown there, and that the Sports Bar did not advertise that the Fight would be broadcast that night.

         Bobby Davis, the leader of a band that performed at the Sports Bar on the night of the Fight, has acknowledged that before Kim told him that the Fight could not be shown at the Sports Bar, a promoter had prepared flyers advertising that Davis's band would be performing at the Sports Bar on "Fight Night." J.R. 64. According to Davis, on the night of the Fight, a man he did not recognize came into the bar with a laptop. While Kim was tending bar in a different room, the man tried to pull up a boxing match on his computer and on a projector in the bar "but his screen kept freezing." J.R. 65. Having failed, the man left with his computer a few minutes later. Davis asserts that no boxing matches were actually shown at the Sports Bar that night.

         In its Complaint, J&J alleges that, by exhibiting the Fight without purchasing a commercial license, Defendants violated the Communications Act and the Cable Act. J&J seeks statutory damages, attorney's fees, and costs.

         DISCUSSION

         In its Motion, J&J seeks summary judgment under Federal Rule of Civil Procedure 56 on liability only. J&J argues that the undisputed facts establish that Defendants are liable under the Communications Act or the Cable Act.

         I. Legal Standard

         Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the moving party demonstrates 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986). The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc.,346 F.3d 514, 522 (4th Cir. 2003). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at ...


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