United States District Court, W.D. Arkansas, Fayetteville Division
J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
EDWARD VEGA, individually and d/b/a SPRINGDALE CIVIC CENTER DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
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.
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.
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).
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).
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
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
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.
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 ...