United States District Court, N.D. Oklahoma
1. J & J SPORTS PRODUCTIONS, INC., Plaintiff,
1. JOSE ALVERTO CAMACHO, individually and d/b/a LAS TORTAS; 2. MARIE ARELLANO, individually and d/b/a LAS TORTAS; 3. ALBERTO ROSALES, individually and d/b/a LAS TORTAS; 4. LAS TORTAS R, LLC, d/b/a LAS TORTAS, Defendants.
OPINION AND ORDER
E. DOWDELL UNITED SJATES DISTRICT JUDGE.
before the Court are Plaintiff's Motion for Summary
Judgment (Doc. 28) against Defendant Alberto Rosales,
individually and d/b/a Las Tortas (“Mr. Rosales”)
and Plaintiff's Motion for Default Judgment (Doc. 26)
against Defendants Jose Alverto Camacho, individually and
d/b/a Las Tortas (“Mr. Camacho”), and Las Tortas
R, LLC, d/b/a Las Tortas (“Las Tortas”).
brought this action on April 7, 2017, alleging that the
defendants unlawfully intercepted and exhibited
“The Fight of the Century”: Floyd Mayweather,
Jr. v. Manny Pacquiao WBC World Welterweight Championship
Fight Program (“the Program”) on May 2,
2015, at the defendants' establishment known as Las
Tortas. (Doc. 2). On June 19, 2017, Ms. Shannon McMurray
filed an Answer (Doc. 9) on behalf of Ms. Arellano and Mr.
Rosales, though the docket mistakenly showed her as
representing all four defendants. On July 3, 2017, plaintiff
filed an Amended Complaint (Doc. 14) with leave of the Court.
None of the defendants filed an answer to the Amended
September 27, 2017, Ms. McMurray moved to withdraw from
representing Las Tortas, Mr. Camacho, and Ms. Arellano. (Doc.
18). In her motion, Ms. McMurray explained that she had
discovered the error regarding her entry of appearance and
had unsuccessfully attempted to contact Ms. Arellano and Mr.
Camacho. The Court granted Ms. McMurray's motion to
withdraw and directed Ms. Arellano, Mr. Camacho, and Las
Tortas to either cause new counsel to enter an appearance on
their behalf within 30 days or, as to Ms. Arellano and Mr.
Camacho, file a notice with the Court of their intention to
proceed pro se. (Doc. 19). None of these three defendants
responded in any way to the Court's order.
December 6, 2017, plaintiff's counsel informed the Court
that plaintiff was voluntarily dismissing its claims against
Ms. Arellano. (Doc. 20). Subsequently, plaintiff moved for
and obtained an entry of default against both Mr. Camacho and
Las Tortas. (Doc. 21-25). Plaintiff has now moved for default
judgment against Mr. Camacho and Las Tortas and for summary
judgment against Mr. Rosales, who is represented by Ms.
The Summary Judgment Motion
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “By its very
terms, [the Rule 56] standard provides that the mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48 (emphasis in original).
“[S]ummary judgment will not lie if the dispute about a
material fact is ‘genuine, ' that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248.
The courts thus determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52.
The non-movant's evidence is taken as true, and all
justifiable and reasonable inferences are to be drawn in the
non-movant's favor. Id. at 255.
August 2, 2017, Plaintiff's counsel served Defendant
Rosales, via certified mail, with Plaintiff's First
Requests for Admission. (Doc. 29-3 at 2 [Weintraub Aff. at
¶ 3]). Pursuant to Fed.R.Civ.P. 36(a)(3), a party
to whom requests for admission are directed must provide
answers or objections within 30 days after being served, or
the matter is deemed admitted. When Mr. Rosales failed to
provide responses to the plaintiff's requests for
admission within 30 days, plaintiff's counsel contacted
Ms. McMurray, counsel for Mr. Rosales. (Id. at 37).
On September 20, 2017, Ms. McMurray wrote back, stating that
her paralegal did not forward the requests to Mr. Rosales and
that she would “get with Alberto [Rosales] and work
through his discovery.” (Id.). Plaintiff's
counsel then asked Ms. McMurray to send the responses for Mr.
Rosales “asap.” (Id. at 36). A month
later, on October 23, 2017, plaintiff's counsel again
contacted Ms. McMurray, this time stating that he would
proceed with a motion for summary judgment unless he received
Mr. Rosales's responses by the end of the week.
(Id.). Plaintiff's counsel asserts that no
responses were received to the requests of admission as of
the date of his filing of the summary judgment motion on
January 12, 2018. (Id. at 2 [Weintraub Aff. at
Rosales's response brief to the summary judgment motion
makes no reference to the requests for admission or the
failure to provide a timely answer to those requests;
however, the brief does set forth a Statement of Disputed
Issues and Facts (“SODF”) that appears to track
those requests. (See Doc. 30 at 5-7). The SODF
claims, inter alia, that Mr. Rosales paid for the
Program as a home subscriber for personal use and that the
only people at the establishment with Mr. Rosales during the
Program were two of his family members. According to the
SODF, Mr. Rosales was unaware a licensing fee may have been
required, he did not advertise that the Program would be
shown at the establishment, and he did not require anyone to
pay a cover charge or fee. The SODF that does not cite to any
supporting evidence; in fact, the only evidence submitted
with the response brief was the plaintiff's
investigator's affidavit (Doc. 30-1).
alleges that the defendants' actions were in violation of
47 U.S.C. § 605, which sets forth the following
No 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. No. person not being
entitled thereto shall receive or assist in receiving any
interstate or foreign communication by radio and use such
communication (or any information therein contained) for his
own benefit or for the benefit of another not entitled
thereto. No. person having received any intercepted radio
communication or having become acquainted with the contents,
substance, purport, effect, or meaning of such communication
(or any part thereof) knowing that such communication was
intercepted, shall divulge or publish the existence,
contents, substance, purport, ...