J & J Sports Productions Inc. v. Ramirez

          OPINION AND ORDER

          KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         J & 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.

         The Program was telecast nationwide on Saturday, May 2, 2015 (Dkt. No. 15-2, ¶ 1).^[1] J & J Sports was granted the exclusive commercial distribution rights to the Program (Id., ¶ 2).^[2] J & J Sports' distribution rights encompassed all undercard events as well as the main events and all color commentary (Id.).^[3] 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).

         The MNK defendants intercepted, received, published, and/or exhibited the Program at the commercial establishment doing business as the Event Center (Id., ¶ 9).^[4] 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).^[5] The Program was observed being displayed at the Event Center by investigator David Hall (Id., ¶ 14).^[6] 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).^[7]

         The MNK 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 contract.” (Id.).

         II. Request To Exclude Documents From Consideration

         J & 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 & 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.).

         Under 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 omitted).

         According 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 & 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.

         III. Summary ...