United States District Court, W.D. Arkansas, Fayetteville Division
J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
SILVIA ARGUETA, individually and d/b/a La Sirenita Restaurant a/k/a La Sirena DEFENDANT/ THIRD-PARTY PLAINTIFF
DISH NETWORK, L.L.C. THIRD-PARTY DEFENDANT
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
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
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.
Argueta's First Motion for Partial Summary
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.
Argueta's Second Motion for Partial Summary
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. (Doc. 33, p. 3).
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
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
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.
The time for discovery has since passed,  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.
Argueta's Third Motion for Partial Summary
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 ...