United States District Court, W.D. Arkansas, Fayetteville Division
J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
MARCELA J. LARA a/k/a MARCELA J. ALVAREZ, ANTONIO LARA and LUIS ALVAREZ, each individually and d/b/a/ EL FAR WEST DISCOTHEQUE; and EL CLUB SONIDERO, INC., an unknown business entity d/b/a EL FAR WEST DISCOTHEQUE. DEFENDANTS
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
before the Court is Plaintiff's motion for summary
judgment (Doc. 21) and brief in support of its motion (Doc.
22). Defendants Luis Alvarez, Antonio Lara, and Marcela J.
Lara filed a response in opposition to the motion for summary
judgment on September 19, 2016 (Doc. 24). The Plaintiff filed
a reply on September 26, 2016 (Doc. 25). Defendants Marcela
J. Lara, Antonio Lara, and Luis Alvarez previously filed an
answer (Doc. 8) and motion to dismiss (Doc. 9) on December
14, 2015. Defendants' motion to dismiss is still pending.
Defendant El Club Sonidero, Inc., d/b/a El Far West
Discotheque (“the Club”) did not appear and the
clerk entered a notice of default on January 11, 2016 (Doc.
J & J Sports Productions, Inc. brought this action against
the aforementioned individuals-both as individuals and d/b/a
the Club-and against the Club itself, for knowingly and
willfully violating the Communications Act of 1934, as
amended, 47 U.S.C. §§ 553 and 605, and for engaging
in conversion. The event giving rise to this action occurred
on September 14, 2013, the day when Plaintiff alleges that
the Defendants unlawfully intercepted and exhibited the
“The One”: Floyd Mayweather, Jr. vs. Saul
Alvarez, WBC Light Middleweight Championship Fight Program
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999). In order for there to be a genuine
issue of material fact, the non-moving party must produce
evidence “such that a reasonable jury could return a
verdict for the nonmoving party.” Allison v.
Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir.
1994) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Only facts “that might affect
the outcome of the suit under the governing law” need
be considered. Anderson, 477 U.S. at 248.
“[T]he non-movant must make a sufficient showing on
every essential element of its claim on which it bears the
burden of proof.” P.H. v. Sch. Dist. of Kan. City,
Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation
omitted). Facts asserted by the nonmoving party “must
be properly supported by the record, ” in which case
those “facts and the inferences to be drawn from them
[are viewed] in the light most favorable to the nonmoving
party.” Id. at 656-57.
Court finds that default judgment should be entered against
the Club because there has been no appearance entered and no
defense presented on its behalf. To the extent that any of
the pro se filings before this Court purport to represent the
Club, those pro se filers cannot respond on behalf of a
corporation that can only be represented by licensed counsel.
Rowland v. California Men's Colony, 506 U.S. 194
(1993). Therefore, default judgment will be entered against
Defendant the Club.
Court finds that Defendants' motion to dismiss (Doc. 9)
should be granted with regard to Marcela J. Lara and denied
with regard to Luis Alvarez and Antonio Lara. In support of
the motion to dismiss, the Defendants present a United States
Bankruptcy Court order titled “Discharge of Debtor,
” which indicates that as of November 6, 2015, Marcela
J. Lara was “granted a discharge under section 727 of
title 11, United States Code (the Bankruptcy Code).”
This order from the Bankruptcy Court is sufficient proof to
dismiss Defendant Marcela J. Lara from this action. From this
motion however, it does not appear that Defendants Luis
Alvarez and Antonio Lara have filed bankruptcy, or should be
excused by Marcela J. Lara's filing. Based on the lack of
evidence and legal argument put forth in support of this
motion to dismiss, the Court finds no reason why Luis Alvarez
and Antonio Lara should be dismissed.
reviewing all of the evidence put forth by both parties
following Plaintiff's motion for summary judgment (Doc.
21), the Court denies Plaintiff's motion for summary
judgment and instead finds summary judgment is proper in
favor of Defendants Antonio Lara and Luis Alvarez. Because
default judgment will be entered against the Club, to the
extent that Plaintiff's motion for summary judgment was
asserted against the Club it will be denied as moot.
Plaintiff's complaint alleged that Luis Alvarez and
Antonio Lara “specifically directed the employees of
[the Club] to unlawfully intercept and broadcast [the
program]… or that the actions of the employees of [the
Club] are directly imputable to Defendants…by virtue
of their acknowledged responsibility for the actions of [the
Club].” (Doc. 1, ¶ 19). Further, Plaintiff points
to an “obvious and direct financial interest in the
activities of [the Club].” (Id., ¶ 20).
The Plaintiff further alleged that the Defendants had an
opportunity to supervise the activities at the Club.
is the issue of whether Antonio Lara and Luis Alvarez have
directly engaged in illegal conduct that would rise to the
level of a violation of 47 U.S.C. §§ 553 and 605 or
that would constitute conversion. Although the complaint
alleged that Antonio Lara and Luis Alvarez
“specifically directed the employees of the Club to
unlawfully intercept and broadcast [the Program], ”
there is no evidence in the record to support the allegation
that Antonio Lara and Luis Alvarez supervised or directed
this illegal activity. The affidavit of the private
investigator who witnessed the broadcasting of the Program at
the Club does not identify any person by name. (Doc. 21, Ex.
1). There is one close-up photograph of an individual
attached to this Exhibit, but the Plaintiff does not rely on
it or even identify who is in the photograph. The private
investigator's report lists six license plates of cars
that were present at the Club, but no evidence is presented
that links any of those license plates to Antonio Lara or
Luis Alvarez. Presence at the Club when the private
investigator was there would not be dispositive of course,
but this is merely one way that Plaintiff could have shown
personal involvement but failed to do so. Even taking
Plaintiff's statement of material facts in support of its
motion for summary judgment (Doc. 23) and assuming for a
moment that all of those facts are admitted, this still does
not present any factual evidence supporting a finding of
liability against Antonio Lara or Luis Alvarez. In light of
the absence of evidence against the direct liability of
Antonio Lara and Luis Alvarez, the Plaintiff is asking this
Court to hold these individuals liable for the conduct of a
courts have stated that the doctrine of piercing the
corporate veil is founded in equity and is applied when the
facts warrant its application to prevent injustice.”
Epps v. Stewart Info. Services Corp., 327 F.3d 642,
647 (8th Cir. 2003) (citing Humphries v. Bray, 611
S.W.2d 791, 793 (Ark. 1981). In Arkansas, “[p]iercing
the fiction of a corporate entity should be applied with
great caution.” Epps, 327 F.3d at 649 (citing
Banks v. Jones, 390 S.W.2d 108, 111 (Ark. 1965).
“It is only when the privilege of transacting business
in corporate form has been illegally abused to the injury of
a third person that the corporate entities should be
disregarded.” Epps, 327 F.3d at 649 (citing
Rounds & Porter Lumber Co. v. Burns, 225 S.W.2d 1, 2
states that “to the extent the Defendants may believe
that Arkansas corporate veil law applies herein, that is in
incorrect.” (Doc. 25, p. 4). In support of this
statement, Plaintiff cites to federal district court cases
from Florida and Louisiana. Joe Hand Promotions, Inc. v.
Hart, 2012 WL 1289731, *3 (S.D. Fla. April 16, 2012);
Zuffa, LLC v. Trappey, 2012 WL 1014690, *4, n.6
(W.D. La. March 22, 2012). Plaintiff cites additional
authority from courts all over the country. (Doc. 22, pp.
7-9). After reviewing these cases, this Court does not find
them helpful on the issue of Arkansas corporate veil law.
Moreover, the corporate facade is disregarded when the form
has been illegally abused. Black and White, Inc. v.
Love, 367 S.W.2d 427 (Ark. 1963). But Plaintiff has not
put forth any evidence, or even allegations, suggesting that
the Defendants have abused the corporate form. Furthermore,
Plaintiff has not presented any facts here to suggest that
piercing the corporate veil is necessary to prevent
injustice. Therefore, this Court declines to pierce the
corporate veil and does not hold Antonio Lara and Luis
Alvarez personally liable for the actions of the corporation
whose conduct gave rise to this lawsuit.
default judgment will be entered against the Club, the Court
must determine the appropriate amount of damages to award.
For the violation of § 605, the Court awards $1, 000 in
statutory damages to Plaintiff. A section of the
Plaintiff's brief in support of its motion for summary
judgment adequately explains the reason for these damages:
A party aggrieved under section 605 may, at its discretion,
recover either actual or statutory damages. 47 U.S.C. §
605(e)(3)(C). Plaintiff elects to recover statutory damages.
Plaintiff requests statutory damages pursuant to 47 U.S.C.
§ 605(e)(3)(C)(i)(II). The amount of statutory damages
to which Plaintiff is entitled for each violation of this
section shall be not less than $1, 000.00 nor more than $10,
(Doc. 22, p. 9). The Court defers to Plaintiff's election
to collect statutory damages, and finds that $1, 000 is an
appropriate amount to award in this case. Plaintiff has
further requested $30, 000 in enhanced statutory damages.
(Doc. 22, p. 9). In calculating damages, the Plaintiff argues
that “particularly important to the issue of enhanced
statutory damages, the establishment required a $5.00 cover
charge for entry.” (Doc. 22, p. 12). In support of this
argument, the Plaintiff cites to the report of the private
investigator. That report reveals that at its peak,
attendance reached 12 persons in the Club on the night in
question. This evidence does not support a claim for enhanced
damages. The Court finds that $1, 000 in statutory damages is
sufficient for the violation, and in addition to the
conversion damages discussed below, this award will
effectively deter both this particular defendant and other
similarly situated defendants in the future.
conversion, the Court awards $2, 200 in compensatory damages
to Plaintiff. “[T]he proper measure of damages [for a
conversion claim] is the fair market value of the property at
the time and place of conversion.” Durham v.
Smith, 374 S.W.3d 799, 805 (Ark. Ct. App. 2010).
However, “the circumstances of a case may require a
different standard, including a measure of the expenses
incurred as a result of the conversion.” McQuillan
v. Mercedes-Benz Credit Corp., 961 S.W.2d 729, 733 (Ark.
1998) (citing First Nat'l Bank of Brinkley, Ark. v.
Frey, 668 S.W.2d 533, 535 (Ark. 1984)). Relying on the
affidavit of Joseph M. Gagliardi, the President of J & J
Sports, Plaintiff asserts that the fair market value of the
Program is $6, 200 because that is the “commercial
sublicense fee” for the Club. (Doc. 21, Ex. 1, p. 3).
That affidavit references the “rate card” and
states that this is “based on the capacity of the
establishment.” (Id. citing Doc. 21, Ex. 2, p.
17). A review of that rate card shows that there is “A
NON-REFUNDABLE MINIMUM GUARANTEE OF $2, 200 Plus $20.00 Per
Person Above 100.” (Id.). Presumably the