United States District Court, E.D. Arkansas, Western Division
J & J SPORTS PRODUCTIONS, INC. PLAINTIFF
MIGUEL A. RAMIREZ, et al. DEFENDANTS
OPINION AND ORDER
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
the Court is motion for summary judgment filed by plaintiff J
& J Sports Productions, Inc. (“J & J
Sports”) (Dkt. No. 15). In the complaint, J & J
Sports alleges that defendants Miguel A. Ramirez and MNK Inc.
d/b/a MNK Arkangel Event Center (collectively the “MNK
defendants”) willfully violated the Communications Act
of 1934, as amended, 47 U.S.C. §§ 605, et
seq., and the Cable & Television Consumer Protection
and Competition Act of 1992, as amended, 47 U.S.C.
§§ 553, et seq. (Dkt. No. 1).
Specifically, J & J Sports alleges that the MNK
defendants unlawfully intercepted, received, published,
divulged, displayed, and/or exhibited a sports program,
“The Fight of the Century, ” Floyd Mayweather,
Jr. v. Manny Pacquiao Championship Fight Program (the
“Program”), to which J & J Sports was granted
the exclusive commercial distribution rights (Id.,
¶¶ 11, 16). J & J Sports moves for summary
judgment on its claim under the Communications Act (Dkt. No.
15, at 15). The MNK defendants have responded to the motion,
and J & J Sports replied (Dkt. Nos. 21, 25). For the
following reasons, the Court denies J & J Sports'
motion for summary judgment.
J Sports filed a statement of material facts in support of
motion for summary judgment (Dkt. No. 15-2). The MNK
defendants filed a response to J & J Sports' material
facts in support of motion for summary judgment (Dkt. No.
23). In the MNK defendants' response, they deny several
of the facts stated by J & J Sports without providing a
record cite upon which to base their denial (Id.,
¶¶ 1, 2, 9, 13, 14, 17). Pursuant to Local Rule
56.1 of the Local Rules of the United States District Court
for the Eastern and Western Districts of Arkansas, all
material facts set forth in the statement filed by the moving
party shall be deemed admitted unless controverted by the
statement filed by the non-moving party. Further, failure to
support or address properly the moving party's assertion
of fact can result in the fact being considered as undisputed
for purposes of the motion. Fed.R.Civ.P. 56(e)(2). Unless
otherwise noted, the following facts are taken from J & J
Sports' statement of material facts in support of motion
for summary judgment.
Program was telecast nationwide on Saturday, May 2, 2015
(Dkt. No. 15-2, ¶ 1). J & J Sports was granted the
exclusive commercial distribution rights to the Program
(Id., ¶ 2). J & J Sports' distribution
rights encompassed all undercard events as well as the main
events and all color commentary (Id.). At all relevant
times, MNK Inc. owned and operated the commercial
establishment doing business as MNK Arkangel Event Center
(“Event Center”), operating at 7020 Colonel Glenn
Road, Little Rock, Arkansas 72204 (Id., ¶ 3).
At all times relevant hereto, Mr. Ramirez was the President
and Registered Agent of MNK Inc. (Id., ¶ 4).
Mr. Ramirez is an officer of MNK Inc. and specifically
identified on the Arkansas Secretary of State Fictious Name
Entity Information Sheet issued for MNK Inc. (Id.,
¶ 5). At all relevant times, Mr. Ramirez was an owner
and manager of the establishment and an officer of the entity
owning the establishment (Id., ¶ 6). Mr.
Ramirez was inside the establishment on the day and night of
the Program (Id., ¶ 7). He had a 100 percent
ownership interest in MNK Inc. and the establishment on May
2, 2015 (Id., ¶ 8).
defendants intercepted, received, published, and/or exhibited
the Program at the commercial establishment doing business as
the Event Center (Id., ¶ 9). According to the
affidavit of Joseph M. Gagliardi, President of J & J
Sports Productions, Inc., “[a]t no time did J & J .
. . sublicense the Program to Defendant Miguel A. Ramirez,
individually and d/b/a MNK Arkangel Event Center and/or MNK
Inc., . . . or their establishment . . . .” (Dkt. No.
15-4, ¶ 2). According to Mr. Gagliardi, the Program
“was observed as being unlawfully exhibited by the
establishment doing business as MNK Arkangel Event Center. At
no time did MNK Arkangel Event Center ever lawfully license
the Program from J & J Sports Productions, Inc. for such
a purpose.” (Id., ¶ 7). The Program was
shown at the Event Center, and patrons of the establishment
were informed that it would be shown (Dkt. No. 15-2, ¶
12). The commercial fee to broadcast the Program for an
establishment the size of the Event Center was $6, 000.00
(Id., ¶ 13). The Program was observed being
displayed at the Event Center by investigator David Hall
(Id., ¶ 14). On May 2, 2015, the Event Center had
satellite television service (Id., ¶ 15). The
Event Center advertised that the Program would be shown on
social media outlets (Id., ¶ 16). The Event
Center required a $35.00 cover charge for entry
(Id., ¶ 17).
defendants attached to their response a copy of an Arkangel
Event Center Rental Contract signed by Gregorio Romero on
April 6, 2015, for an event that took place on May 2, 2015
(Dkt. No. 22-1). They also attached to their response a copy
of a receipt for $2, 600.00 for services provided (Dkt. No.
22-2). The receipt states, “This is for the cost of the
rental agreement of the event center for May 2, 2015 from
10pm-2am rented by Mr. Gregorio Romero. This is for both the
security deposit and the rental fee of the facility per the
Request To Exclude Documents From Consideration
J Sports objects to two documents that the MNK defendants
attached to their response to the motion for summary judgment
(Dkt. No. 25-1, at 1). Specifically, J & J Sports argues
that the Arkangel Event Center Rental Contract and a receipt
from a rental agreement between Mr. Ramirez and Mr. Romero to
rent the Event Center from 10:00 p.m. to 2:00 a.m. on May 2,
2015, should be excluded (the “Documents”) (Dkt.
Nos. 22, Exs. 1, 2; 23, Exs. 1, 2).
J Sports argues that the Documents should be excluded because
it received a copy of the Documents for the first time on
June 4, 2018 (Dkt. No. 25-1, at 1). J & J Sports further
argues that it agreed to a continuance for the MNK defendants
to respond to the motion for summary judgment but did not
waive any objection to the admissibility of previously
undisclosed information (Id., at 2). J & J
Sports contends that the Documents fall under the information
required to be identified under Federal Rule of Civil
Procedure 26(e)(1)(A)(ii) because the Documents support the
MNK defendant's argument that they are not liable for the
acts of Mr. Romero (Id.).
the Federal Rules of Civil Procedure, each party must
“supplement or correct its disclosure or response . . .
in a timely manner . . . if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process . . . .”
Fed.R.Civ.P. 26(e)(1)(A). In the event a party fails to
supplement its discovery responses, “the party is not
allowed to use that information . . . unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). In determining whether a Rule 26 violation is
“justified or harmless, ” the Court is directed
to consider: “(1) the prejudice or surprise to the
party against whom the testimony is offered; (2) the ability
of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4)
the moving party's bad faith or willfulness.”
Rodrick v. Wal-Mart Stores E., L.P., 666 F.3d 1093,
1096 (8th Cir. 2012) (internal citations and quotations
to the interrogatory responses from MNK defendants that J
& J Sports attached to its motion for summary judgment,
the MNK defendants listed “$2, 000.00 rental fee plus a
$250.00 security deposit” as the only source of income
or revenue derived on Saturday, May 2, 2015, and Sunday, May
2, 2015 (Dkt. No. 15-3, Ex. 3, at 2). The MNK defendants also
stated that “Mr. Gregorio Romero rented the facility
for May 2, 2015, ” when instructed to identify any
person who was a licensee of the Event Center on May 2, 2015
(Id.). Based on the record before the Court, at this
time, the Court concludes that J & J Sports was not
surprised or prejudiced by the MNK defendants attaching the
Documents to their response to the motion for summary
judgment because J & J Sports was made aware of the
rental agreement and the identity of Mr. Romero when the
interrogatories were completed on December 20, 2017. For the
second factor, based on the record evidence before the Court
and the parties' arguments to date regarding this
evidence, it does not appear that the MNK defendants need an
opportunity to cure any prejudice purportedly resulting from
the disclosure of these Documents because, on the record
before it, the Court concludes that J & J Sports was not
prejudiced by the Documents. For the final two factors, the
introduction of the Documents did not cause any disruption
because J & J Sports was or should have been already on
notice about the information in the Documents and because
there is no record evidence before the Court that the MNK
defendants acted in bad faith or with willfulness. For these
reasons, at this time and on the record before it, the Court
concludes that the MNK defendants did not violate Rule 26
with this disclosure, and the Court will not exclude the
Documents under Rule 37(c)(1).
J Sports also argues that the Documents should be excluded on
the grounds of lack of authenticity and hearsay. It is well
settled that a party may not defeat a motion for summary
judgment by relying solely on inadmissible hearsay. See,
e.g., BancorpSouth Bank v. Hazelwood Logistics Ctr.,
LLC, 706 F.3d 888, 900 (8th Cir. 2013); Guest v.
Shell, No. 4:12CV00336 JLH, 2013 WL 1089039, at *4 (E.D.
Ark. Mar. 14, 2013). However, the standard is not whether the
evidence at the summary judgment stage would be admissible at
trial-it is whether it could be presented at trial
in an admissible form. Gannon Int'l, Ltd. v.
Blocker, 684 F.3d 785, 793 (8th Cir. 2012). Rule 56 of
the Federal Rules of Civil Procedure permits a party to
object to evidence cited by the other party at the summary
judgment stage and requires the Court to make a determination
regarding whether the evidence could be presented at trial in
an admissible form. See Fed. R. Civ. P. 56(c)(2).
The Court finds that these Documents could be properly
authenticated, among other ways, with a supporting affidavit
or testimony. Further, through supporting affidavits or
testimony, the MNK defendants could establish that these
Documents meet the requirements of records of a regularly
conducted activity and, therefore, are an exception to
hearsay. See Fed. R. Evid. 803(6). The Court will
consider these Documents at the summary judgment stage.