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J & J Sports Productions, Inc. v. La Poblanita LLP

United States District Court, W.D. Washington, Tacoma

May 6, 2019

LA POBLANITA LLP, a Washington limited liability partnership, d/b/a La Poblanita Mexican Restaurant; MARCELINO ZAPATA, a/k/a Marcelino Zapata-Perez, a/k/a Marcelino Perez, and the marital community of Marcelino Zapata and Loreno Salgado, husband and wife, Defendants.


          Robert J. Bryan United States District Judge.

         THIS 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.

         This 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. Id.

         I. FACTS

         Defendant 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.

         The 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 & 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.

         According 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 restaurant. Id.

         On 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 asserts that:

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.

         Kemppainen 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.

         The 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.

         The 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. Id.

         On 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.

         This 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 ...

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