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J&J Sports Production, Inc. v. Gonzalez

United States District Court, Third Circuit

November 14, 2013

J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
LORENZO GONZALEZ et al., Defendants.

MEMORANDUM

GENE E.K. PRATTER, UNITED STATES DISTRICT JUDGE

J&J Sports Productions, Inc. (“J&J Sports”) sued Lorenzo Gonzalez, individually and in his capacity as the Stork Hotel, aka Hotel La Ciguena, as well as the hotel (collectively, “the Defendants”), for violation of 47 U.S.C. §§ 553 or 605, which prohibit, respectively, unauthorized interception of cable or satellite transmissions. J&J Sports alleges that it had exclusive nationwide commercial distribution rights to two different boxing matches, which it broadcast through sublicensees, and that the Defendants unlawfully intercepted these programs—i.e., did not pay for a proper license to exhibit them—in violation of one of the two foregoing statutes. J&J Sports also alleges that the Defendants did so willfully. (The statutes provide for increased monetary damages for willful violation. See 47 U.S.C. § 553(c)(3)(B) (“In any case in which the court finds that the violation was committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory under subparagraph (A), by an amount of not more than $50, 000.”); id. § 605(e)(3)(C)(ii) (“In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100, 000 for each violation of subsection (a) of this section.”).) J&J Sports sets forth its First Amended Complaint (Docket No. 19) in three counts: violation of 47 U.S.C. § 553 (interception by cable) (Count I); violation of 47 U.S.C. § 605 (interception by satellite) (Count II); and conversion (Count III).

In their Answer (Docket No. 20), the Defendants denied interception of the programs.

But, “[b]y way of further answer, ” Defendants averred in two paragraphs that

Plaintiff is barred under law from seeking damages under both Section 605 and Section 553. By way of further answer, the damages that the Plaintiff is seeking are excessive and the Plaintiff, as an entity, and his counsel has been criticized for doing this. See J&J[] Sports Production[s], Inc. v. Moody, [No. 08-5225, ] 2009 WL 1515749 (ED. Pa. 2009 [May 28, 2009]).

Answer ¶¶ 25, 30 (Docket No. 4). In another paragraph, responding to J&J’s allegation that

[t]he aforesaid acts of the Defendants were willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports Productions, Inc., by depriving Plaintiff of the commercial license fee to which Plaintiff was rightfully entitled to receive from them, and in doing so, the Defendants subjected the Plaintiff to severe economic distress and great financial loss,

Compl. ¶ 33, the Defendants denied the allegation and stated, “By way further answer, the answering Defendants operate a relatively small ‘mom and pop’ restaurant/bar in the City of Reading and the legal defenses incurred are a ‘severe economic distress and great financial loss to them, ’” Answer ¶ 33. In closing, the Defendants raised three affirmative defenses: (1) laches; (2) an argument that the Defendants were not “put on notice of Plaintiff’s purported property rights in said ‘Program, ’” such that any interception, if it occurred, “was done innocently and with justification”; and (3) any interception, if it occurred, “was done so with what Answering Defendants believed was a valid license.”

J&J Sports moved to strike paragraphs 25, 30, 33, and all three of Defendants’ affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), which provides, in full:

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Fed. R. Civ. P. 12(f). Motions to strike are, as J&J Sports concedes, “somewhat disfavored.” Mot. Strike at 5; see generally 5C Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1382 (3d ed. 2013). But they are also a matter over which “[t]he district court possesses considerable discretion.” Wright & Miller § 1382, supra; see also Snare & Triest Co. v. Friedman, 169 F. 1, 6 (3d Cir. 1909) (“[T]he granting of the motion to strike out was a matter within the discretion of the court below.”); Zaloga v. Provident Life & Acc. Ins. Co. of Am., 671 F.Supp.2d 623, 633 (M.D. Pa. 2009) (“A decision to grant or deny a motion to strike a pleading is vested in the trial court’s discretion.”). And here, well within that discretion, the Court will strike certain of the statements discussed below because they are immaterial and impertinent, as well as one of the Defendants’ affirmative defenses as insufficient as a matter of law.

J&J Sports argues, first, that the allegations in paragraphs 25 and 30 of the Defendants’ Answer are immaterial, impertinent, and scandalous because they “do not pertain to the issues in question and that have no purpose other than to cast a derogatory light on Plaintiff and its counsel.” Mot. Strike at 4 (Docket No. 21). As J&J Sports correctly argues, while a plaintiff may not ultimately recover under both 47 U.S.C. § 553 and § 605 because the two causes of action are mutually exclusive, see TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 207 (3d Cir. 2001), “[a]t the motion to dismiss stage, where the plaintiff is permitted to plead alternative theories of liability, [plaintiff’s] Complaint can state causes of action under both §§ 553 and 605.” Joe Hand Promotions, Inc. v. Yakubets, No. 12-4583, 2013 WL 5224123, at *2 (E.D. Pa. Sept. 17, 2013); see 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. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”). Defendants’ contention is thus immaterial and its statement respecting J&J’s counsel impertinent and, as J&J argues, ...


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