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J & J Sports Productions, Inc. v. Argueta

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

November 30, 2016

J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
v.
SILVIA ARGUETA, individually and d/b/a La Sirenita Restaurant a/k/a La Sirena DEFENDANT/ THIRD-PARTY PLAINTIFF
v.
DISH NETWORK, L.L.C. THIRD-PARTY DEFENDANT

          OPINION AND ORDER

          P. K. HOLMES, III CHIEF U.S. DISTRICT JUDGE.

         Currently before the Court are Defendant / Third-Party Plaintiff Silvia Argueta's first motion for partial summary judgment (Doc. 12), second motion for partial summary judgment (Doc. 15), and third motion for partial summary judgment (Doc. 18); Plaintiff J & J Sports Productions, Inc.'s (“J & J”) motion to strike paragraph 27 of Argueta's third-party complaint (Doc. 43); Third-Party Defendant Dish Network, L.L.C.'s (“Dish”) motion to dismiss (Doc. 46); and the parties' responses and supporting documents. The Court will address each motion in turn.

         I. Background

         This is one of a number of recent lawsuits filed in this district by J & J, a rights holder for major boxing matches. J & J alleges that on September 14, 2013, Argueta personally or specifically directed employees of her restaurant to unlawfully intercept and broadcast “‘The One' Floyd Mayweather, Jr. v. Saul Alvarez WBC Light Middleweight Championship Fight Program.” J & J was the exclusive commercial domestic distributor of the televised fight. J & J filed suit against Argueta for the alleged unlawful dissemination of the fight under (1) the Federal Communications Act of 1934, 47 U.S.C. § 605, et seq.; (2) the Cable Communications Policy Act of 1984, 47 U.S.C. § 553 et seq.; and (3) conversion under Arkansas law. Because Argueta purchased its television services from Dish, based on the same nucleus of facts, Argueta filed a third-party complaint against Dish for negligence, deceit, and violations of the Arkansas Deceptive Trade Practices Act.

         II. Analysis

         A. Argueta's First Motion for Partial Summary Judgment

         Argueta's reply states that this motion “was filed in error and [Argueta] move[s] to withdraw it.” (Doc. 32, p. 2). Thus, the Court will terminate this motion.

         B. Argueta's Second Motion for Partial Summary Judgment

         In her second motion for partial summary judgment, Argueta argues that 47 U.S.C. §§ 553 and 605-the statutes J & J alleges Argueta violated in Counts One and Two of J & J's complaint- are mutually exclusive, and because Argueta acknowledges that § 605 is applicable, Count Two alleging the violation of § 553 should be stricken from J & J's complaint. (Doc. 15). The Court will not strike the claim, but can grant Argueta summary judgment on the claim and dismiss it. J & J acknowledges that while the Eighth Circuit has not ruled on the matter, “the prevailing trend, including among the district courts in the Eighth Circuit, is to apply 47 U.S.C. § 605 to satellite violations” and find the statutes to be mutually exclusive.[1] (Doc. 33, p. 3).

         Section 553 provides that “[n]o person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. § 553 (emphasis added). Section 605 states that “[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.” 47 U.S.C. § 605 (emphasis added). The Court agrees that the language of these two statutes makes it clear that they are mutually exclusive, with § 553 applying only to cable systems, and § 605 applying only to satellite or radio transmission, and not to cable transmission.

         J & J is permitted to plead two alternative theories of liability, as it has done here. See Fed. R. Civ. P. 8(a)(3) (“A pleading that states a claim for relief must contain… a demand for the relief sought, which may include relief in the alternative or different types of relief.”); Fed.R.Civ.P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”); Fed.R.Civ.P. 18 (“A party asserting a claim… may join, as independent or alternative claims, as many claims as it has against an opposing party.”).

         However, J & J is only allowed to recover under one of these mutually exclusive statutes. J & J requested in its response that the Court defer judgment on its claim alleging a violation of § 553 until after discovery. (Doc. 33, p. 3).[2] The time for discovery has since passed, [3] and J & J has not filed a supplement to its response identifying which statute it believes applies in the present case. “If a party fails… to properly address another party's assertion of facts as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.” Fed.R.Civ.P. 56(e). J & J filed its response on January 20, 2016, and the discovery deadline was November 8, 2016. Its opportunity to properly address Argueta's motion has spanned more than 10 months. The Court thus deems Argueta's assertion that § 605 is applicable to be undisputed, and will grant Argueta's motion for partial summary judgment such that J & J's claim alleging a violation of § 553 will be dismissed without prejudice.

         C. Argueta's Third Motion for Partial Summary Judgment

         In her third motion for partial summary judgment, Argueta contends that as a matter of law if a “violation of the Telecommunications Act of 1934 is alleged, that is the exclusive remedy of the party and state law claims must be dismissed.” (Doc. 18, ¶ 4). The Court will not dismiss J & J's conversion claim simply because violations of § 553 and § 605 are alleged. However, as a matter of law, the Court finds that J & J cannot recover damages under both the Telecommunications Act of 1934 and a state law conversion claim. See Joe Hand Promotions, Inc. v. Peterson, 2014 WL 824119, at *5 (D. Neb. Mar. 3, 2014) (“If Joe Hand recovers under one of those theories, its state law conversion claim is not viable.”) (citations omitted); J & J Sports Prods., Inc. v. Brewster "2" Cafe, LLC, 2014 WL 4956501, at *7 (E.D. Ark. Oct. 2, 2014) (“Although there is some authority to the contrary, the Court agrees with those courts holding that recovery under both § 553 and a state law conversion claim would result in an impermissible double recovery for the same ...


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