United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO
J. Bryan United States District Judge.
MATTER comes before the Court on the Defendants' Motion
to Quash Plaintiff's Subpoena Duces Tecum to Dish
Network, LLC (Dkt. 24), the Plaintiff's Motion to Quash
Subpoena re: Kemppainen (Dkt. 27), the Plaintiff's motion
to strike (Dkt. 33), and Defendants' Motion for Summary
Judgment (Dkt. 19). The Court has considered the pleadings
filed regarding the motions and the remaining record.
case arises from the Defendants' alleged commercial
broadcast of a boxing match between Saul Alvarez and Liam
Smith, related sports commentary, and “under-card
bouts” on September 17, 2016. Dkt. 1. The Plaintiff
asserts that it had “exclusive nationwide commercial
distribution” rights to the program and that the
Defendants showed the program without permission.
La Poblanita, LLP d/b/a La Poblanita Mexican Restaurant
(“restaurant”) is owned by Defendants Marcelino
Zapata and his wife Loreno Salgado, who are its employees
along with their daughter, Defendant Karina Zapata. Dkt. 26,
1-2. The restaurant is located at 2624 6th Street,
Bremerton, Washington. Dkt. 26, at 1. The restaurant's
only source of television is through satellite provided by
DISH, Network, LLC (“DISH”). Dkt. 20, at 1-2. It
subscribes to the “Latino Plus” package which
includes many sports channels that broadcast exclusively in
Spanish. Id., at 2. The restaurant primarily
displays programming in Spanish. Id.
Plaintiff, J & J Sports Productions, Inc. (“J &
J”), is a closed circuit distributor of sports
programs. Dkt. 35, at 1. According to the president of J
& J, it “purchased and retained the exclusive
commercial exhibition (closed circuit) licensing rights to
the Saul Alvarez v. Liam Smith WBO World Super
Welterweight Championship Fight Program, ” which
included the main fight, “undercard” bouts,
(including the fight between Diego De La Hoya and Luis
Orlando), and sports commentary, all of which aired on
September 17, 2016 (“program”). Id., at
1-2. As evidence of the company's exclusive proprietary
rights to the program, J & J points to July 27, 2016
letter between J & J Sports and Golden Boy Promotions,
which was sent to the attention of Eric Gomez and Robert
Gasparri. Dkt. 35, at 17. The letter is entitled
“Closed Circuit Proposal for Saul Alvarez vs. Liam
Smith, ” and contains redactions, but included an offer
of how to split profits (less certain expenses). Id.
The letter included provision that “[p]iracy
[enforcement] rights will [be] granted for the United States
and Canada to J & J.” Id. It also included
a provision governing territory (the United States and
Canada) with a handwritten portion which indicated that
“Puerto Rico was not included.” Id. It
was signed by a J & J representative and Robert Gasparri,
COO, who handwrote “approved, ” and dated his
signature on July 27, 2016. Id.
J also submitted a contract dated September 16, 2016 between
Golden Boy Promotions, LLC, which was signed by J & J,
but not signed by Golden Boy Productions, LLC, giving J &
J the exclusive rights to the fight. Dkt. 35, at 9-16. This
document provided that it “shall not become effective
unless and until [Golden Boy Promotions, LLC] has accepted
and signed this Agreement and returned one copy to [J &
J].” Id., at 16. J & J's president
explains that while Golden Boy Productions, LLC did not sign
this contract between the parties, they both acted in
reliance on the contract- the Plaintiff did sublicense the
program throughout the United States - which J & J's
president asserts would not have been possible without Golden
Boy Productions, LLC's assent. Id., at 3.
Further, he contends that “it is the standard conduct
and practice” between these parties to handle
contractual matters in this manner. Id., at 3.
to the Plaintiff, to prevent unauthorized access, closed
circuit programs, like the program at issue here, are
electronically coded or the signal is
“scrambled.” Dkt. 35, at 5. There are several
methods that a signal pirate can unlawfully intercept such a
broadcast, including installing a devise on a cable t.v. line
or to a satellite receiver which “will allow for the
descrambled reception of a pay-per-view event, ” the
“purposeful misrepresentation” of a commercial
establishment as a residential property to allow for the
purchase of the program at the significantly reduced
residential rate, the use of illegal cable drop or splice
from an adjacent home to the commercial establishment, and/or
the use of other “illegal unencryption devices.”
Dkt. 35, at 4-5. The Plaintiff states that the Defendants
here were not authorized to show the program at the
day of the fight, private investigator Kenneth Kemppainen
asserts that from around 6:29 p.m. to 6:31 p.m., he visited
the restaurant. Dkt. 20, at 61. He states that he saw two
televisions in the restaurant. Id. A large flat
screen t.v. was on the left and a small flat screen t.v. was
on the right as he entered. Id. He states that there
were 12-15 other patrons in the restaurant for the few
minutes that he was there. Id., at 62. Kemppainen
As I entered the establishment the HBO-PPV Canelo vs. Smith
boxing event was in progress on the large flat screen TV. A
pre-view announcement of the upcoming main event bout between
CANELO vs. SMITH was airing. A new round between Diego De La
Hoya and Luis Orlando Del Valle was just about to begin. De
La Hoya was wearing black/white trunks with his last name
written on the front of the trunks[, ] while Del Valle was
wearing white/blue trunks, but his last name was written on
the back of his trunks. The HBO-PPV was broadcasting from
AT&T Stadium in Arlington, Texas. The fighters were
pretty much just sparring each other standing up during the
round when I left the establishment.
Dkt. 20, at 61. Kemppainen clarifies that
“Canelo” is a nickname for Saul Alverez and
maintains that he was referring to the Alverez v. Smith fight
when he stated that “[a] pre-view announcement of the
upcoming main event bout between CANELO vs. SMITH was
airing.” Dkt. 36, at 2. He goes on to describe the
restaurant as having a “brightly colored Mexican motif,
” including a “sombrero in one corner and paper
mache ‘piñata type' ornaments hanging from
the ceiling.” Dkt. 20, at 61.
took photographs of the restaurant which purport to show the
outside of the establishment. Dkt. 20, at 64-65. Kemppainen
also states that he took two videos during his investigation.
Dkt. 36, at 2. He asserts that the videos are complete and
have not been altered. Id. Kemppainen states that on
video “200rc pol 001.MOV” has a date and time
stamp of September 17, 2016 at 18:28 to 18:31. Id.
parties also submitted the videos by Kemppainen that
allegedly shows the program being showed at the restaurant.
The videos are of poor quality and it is difficult to
see the images or understand the sound.
Defendants maintain that they did not “purchase or
otherwise procure, the program through [the restaurant's]
television provider, DISH.” Dkt. 20, at 2. They point
to DISH bills, which show that they did not purchased the
program. Id., at 37-40. The Defendants assert that
they did not have more customers or an increase in profits
during when the fight aired compared with Saturdays before or
after the fight. Dkt. 20, at 2. They maintain that they did
not advertise that they were showing the fight. Id.
They point to a response to an inquiry on Facebook about
whether the restaurant would be showing the fight, the
Defendants said that they “doubt[ed] it.” Dkt.
20, at 59. They explained that they had the fight last year
due to several customers' requests, but because that
customer was the only one to request the program this year,
probably not. Dkt. 20, at 59. They indicated that if more
people requested that they show the fight, they may.
August 30, 2018, the Plaintiff filed this case, asserting
claims under the Communications Act (“CA”), 47
U.S.C. § 605, et. seq., and 47 U.S.C. § 553, and
for trespass to chattel. Dkt. 1. The Plaintiff seeks damages,
attorneys' fees, and costs. Id.
opinion will now address the pending motions to quash (Dkts.
24 and 27), motion to strike portions of the declaration of
Karina Zapata (Dkt. 33), and ...