United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTIONS
FOR SUMMARY JUDGMENT
DEBRA McVICKER LYNCH, Magistrate Judge.
Plaintiff J & J Sports Productions, Inc. (J & J Sports) brought this action against defendants Carranza, Inc. d/b/a Los Chilaquiles ("Los Chilaquiles") and its principal and sole shareholder, Loyda Carranza, alleging the defendants' illegal exhibition of a pay-per-view boxing match at Los Chilaquiles, a restaurant owned and operated by Carranza, Inc. J & J Sports seeks summary judgment against both Los Chilaquiles and Loyda Carranza. (Dkt. 25) In response, the defendants filed their own motion for summary judgment (Dkt. 29) in which they (1) concede Los Chilaquiles is liable, (2) request a judgment that Loyda Carranza is not liable, and (3) contend that only minimal damages should be awarded.
The evidentiary materials submitted by the parties establish the following undisputed facts.
J & J Sports owns the exclusive commercial distribution rights to Star Power: Floyd Maywether, Jr. v. Victor Ortiz Championship Fight Program (the "Program"). The Program was broadcast nationwide on Saturday, September 17, 2011. (Gagliardi Aff., Dkt. 25-1, ¶ 3)
On September 17, the Program was exhibited at Los Chilaquiles after hours to a crowd of 37 or 38 people after the restaurant had closed. (Davis Aff., Dkt. 27-1, p. 2) Mr. Carranza is an officer and sole shareholder of Carranza, Inc. (Los Chilaquiles). Mr. Carranza had the right and ability to supervise the activities of Los Chilaquiles on the night of the fight. ( See Dkt. 28-1.) Mr. Carranza did not pay a commercial licensing fee to the plaintiff, nor did he otherwise have permission to broadcast the Program at his commercial establishment. The commercial licensing fee to broadcast the Program for an establishment the size of Los Chilaquiles was $2, 200. (Gagliardi Aff., Dkt. 25-1, ¶¶ 7-8)
According to Mr. Carranza's affidavit, the restaurant closed at 9:00 p.m. on the evening the Program aired. The sign and registers were turned off, and no money exchanged hands after 9:00 p.m. Mr. Carranza had agreed to host a birthday party at Los Chilaquiles after hours for his nephew and a friend. They invited more friends to watch the fight at the restaurant after closing. (Carranza Aff., Dkt. 29, ¶¶ 3-8) The Program was purchased through Mr. Carranza's residential satellite (Directv) account and his nephew brought a receiver to the restaurant to view the fight. ( See Dkt. 28-1, p. 5; 28-2, p. 8.) There was no advertising to the public that the Program would be shown at the restaurant.
At 11:55 p.m., an investigator hired by the plaintiff, Teresa Davis, entered Los Chilaquiles and observed the Program being shown. She counted the number of patrons inside the restaurant at 37 or 38. (Davis Aff., Dkt. 27-1, p. 2) She was not charged a cover fee to enter.
Mr. Carranza claims that Ms. Davis was the only person in the restaurant during the fight unknown to himself, Carlos, or his friends. Ms. Davis was told that the gathering was a private event, but she insisted on staying for a while. Ms. Davis attempted to order a drink but was told that no money was being accepted for food or drinks. After her insistence to purchase a drink, she was given a free one. She was eventually asked to leave and did so. Her visit lasted between fifteen and twenty minutes. Mr. Carranza had never shown a fight in the restaurant before this occasion and has not shown a fight since. (Carranza Aff., Dkt. 29, ¶¶ 10-11)
As a result of the alleged piracy, J & J Sports filed a complaint against the defendants, claiming violations under the Cable Communications Policy Act (CCPA), particularly of 47 U.S.C. § 605 and § 553, as well as a state law claim of conversion. Plaintiff asks for maximum statutory damages, enhanced damages, and attorney's fees and costs.
The defendants admit the liability of Los Chilaquiles for the violation of section 605, but they deny that Mr. Carranza can be held individually liable under the statute. Defendants further contend that J & J Sports is entitled only to minimum damages because Los Chilaquiles's violation of section 605 was not committed willfully for financial gain.
A. Conversion Claim
As a preliminary matter, the court notes that J & J Sports's complaint includes a tort claim for conversion, and it seeks a final judgment for damages in connection with its summary judgment motion. ( See Proposed Judgment, Dkt. 25-2.) But its motion and brief do not mention this claim, so it "fails absent a developed analysis of the conversion issue." J & J Sports Productions, Inc. v. Zarco, 2013 WL 4829222 at *4 (S.D. Ind. Sept. 9, 2013) (citing Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 ...