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J & J Sports Productions, Inc. v. Vega

United States District Court, W.D. Arkansas, Fayetteville Division

August 2, 2016

J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
v.
EDWARD VEGA, individually and d/b/a SPRINGDALE CIVIC CENTER DEFENDANT

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Currently before the Court are Defendant Edward Vega’s Motion to Amend Answer (Doc. 34) and Plaintiff J & J Sports Productions, Inc.’s (“J&J”) Opposition (Doc. 35). For the reasons given below, Mr. Vega’s Motion is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         J&J alleges in its Complaint (Doc. 1) that Mr. Vega knowingly intercepted and published without authorization a televised fight between Floyd Mayweather, Jr. and Saul Alvarez to which J&J had exclusive nationwide commercial distribution rights. Id. at ¶ 14. The Complaint asserts three counts against Mr. Vega: violation of 47 U.S.C. § 605, violation of 47 U.S.C. § 553, and a state-law claim for conversion. Mr. Vega filed his Answer (Doc. 10) to the Complaint on December 7, 2015, his Amended Answer (Doc. 15) on January 6, 2016, and his Second Amended Answer (Doc. 29) on March 2, 2016. He now seeks leave to file a proposed Third Amended Answer (Doc. 34-2), in order to plead several new affirmative defenses. Specifically, his proposed Third Amended Answer puts forward four affirmative defenses: (1) that Mr. Vega is not the proper defendant, but rather that the Springdale Civic Center (“SCC”) is; (2) that the SCC was authorized to receive the signal for the fight program; (3) that the fight program was received via an internet signal rather than a satellite television or cable television signal; and (4) that the fight program’s display at the SCC was time-delayed rather than intercepted. The first of these four affirmative defenses was asserted in the Second Amended Answer, see Doc. 29, ¶ 33, but the latter three appear to be newly proposed. J&J opposes Mr. Vega’s Motion, which has been fully briefed and is now ripe for decision.

         II. LEGAL STANDARD

         Since Mr. Vega has already amended his responsive pleading before, he may do so again “only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). Here, as noted above, J&J does not consent to the proposed amendment. Therefore, Mr. Vega’s proposed Third Amended Answer may be filed only with the court’s leave, which should be “freely give[n] . . . when justice so requires.” Id. However, “[a] district court may appropriately deny leave to amend where there are compelling reasons such as undue delay, bad-faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment.” Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (internal quotation marks omitted). Generally, though, delay is insufficient to justify denying leave, absent prejudice to the opposing party. See Id. As for futility, “a motion to amend should be denied on the merits only if it asserts clearly frivolous claims or defenses, ” and “[l]ikelihood of success on the new claim or defenses is not a consideration for denying leave to amend unless the claim is clearly frivolous.” Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 906 (8th Cir. 1999).

         A party opposing amendment on the grounds of prejudice or futility bears the burden of demonstrating unfair prejudice or establishing futility. Concrete Washout Sys., Inc. v. Double D Hook-N-Go Containers, Inc., 2009 WL 2840515, at *2, *3 (D. Neb. Aug. 28, 2009) (citing Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396 (E.D.N.Y. 1998)). Ultimately, the decision whether to grant leave to amend a pleading “is left to the sound discretion of the district court, ” and will be overruled on appeal only if such discretion is abused. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998).

         III. DISCUSSION

         J&J opposes Mr. Vega’s Motion on the grounds that it is brought after undue delay, that granting it would prejudice J&J, and that Mr. Vega’s newly-proposed affirmative defenses would be futile. The Court notes, as an initial matter, that J&J only makes these arguments with any specificity as to two of Mr. Vega’s proposed defenses: the third affirmative defense that the fight program was received via an internet signal rather than a satellite television or cable television signal, and the fourth affirmative defense that the fight program’s display at the SCC was time-delayed rather than intercepted. See Doc. 35, p. 9 & n.7. J&J argues that since Mr. Vega’s Motion did not advance any specific arguments in support of the first and second proposed affirmative defenses, Mr. Vega should not be permitted to file them. But this misstates the burden, which is J&J’s-not Mr. Vega’s. See Section II supra. Since J&J has made no attempt at meeting its burden with regard to Mr. Vega’s first two proposed affirmative defenses, Mr. Vega’s Motion will be granted as to those two defenses, and Mr. Vega will be permitted to plead them.

         Turning to J&J’s arguments against Mr. Vega’s third and fourth affirmative defenses, J&J’s only argument for a finding of prejudice is that if either of these proposed affirmative defenses is meritorious, then “it would essentially leave [J&J] without a remedy.” (Doc. 35). But of course the very nature of any meritorious defense is to preclude relief, at least to some extent. The proper question here is not whether prejudice exists, but whether such prejudice is “undue.” See Bell, 160 F.3d at 454. Currently, the discovery deadline is three-and-a-half months away, the dispositive motions deadline is four months away, and the trial is eight-and-a-half months away. See Doc. 27, pp. 1-3. To whatever extent Mr. Vega’s proposed amendments may require additional discovery or legal research by J&J, there is ample time remaining for such efforts.

         Therefore, the Court finds that permitting Mr. Vega to plead his proposed third and fourth affirmative defenses would not unduly prejudice J&J. And as noted above in Section II of this Order, undue delay is an insufficient basis for denying leave in the absence of any undue prejudice. The Court turns, then, to J&J’s sole remaining argument-that Mr. Vega’s proposed third and fourth affirmative defenses are futile. For analytical ease, the Court will deal first with Mr. Vega’s proposed fourth affirmative defense, and then with his third.

         Mr. Vega’s proposed fourth affirmative defense states:

The subject TV program was displayed at a time delay at the subject establishment. Thus, there was no interception and no signal piracy violation. Furthermore, the plaintiff does not have standing because it was not a simultaneous (live) exhibition and the plaintiff’s licensing rights only apply to live exhibitions.

See Doc. 34-2, p. 4. This defense appears actually to be two defenses, then: that there was no interception, and that ...


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