Commercial Litigation and Arbitration

Claim Supported Only by Conclusory Assertions Inadequate to Prevent Entry of Summary Judgment

Jaso v. Coca Cola Co., 2013 U.S. App. LEXIS 16026 (5th Cir. Aug. 2, 2013):

Appellant Omar Jaso appeals from the district court's summary judgment in favor of the defendants on his complaint for alleged copyright infringement, RICO violations, and Lanham Act violations. Jaso contends that he holds a Mexican copyright in a song entitled "El Juego," and that in 1994 the Appellees (collectively "Coca Cola defendants") began unlawfully using a derivative work entitled "Always Coca-Cola" in an advertising campaign. Jaso brought an unsuccessful criminal complaint against Coca Cola in Mexico in the 1990s before filing the instant suit in 2010. Because of the lengthy passage of time since the Coca Cola defendants allegedly began using Jaso's song, the district court dismissed the complaint as barred by limitations. We reversed in part because some claims in a proposed amended complaint were not barred, at least on their face, and we remanded for the district court to allow Jaso to file his amended complaint. See Jaso v. The Coca Cola Co., 435 F. App'x 346 (5th Cir. 2011) ("Jaso I"). The district court again dismissed the complaint on remand. Reviewing the record de novo, see, e.g., Tekelec, Inc. v. Verint Sys., Inc., 708 F.3d 658, 662 (5th Cir. 2013), we AFFIRM for the following reasons.***

Jaso's claim under RICO also lacks merit. As stated in the amended complaint, Jaso essentially claims that the Coca Cola defendants engaged in a pattern of racketeering activity by threatening to murder him and his family if he continued to seek legal remedies against them, by making false statements to the United States copyright office, and by using, distributing, and broadcasting the Always song in their commercial advertising. Jaso's claim is supported primarily by conclusory assertions, which may not prevent summary judgment. See Little, 37 F.3d at 1075. Moreover, a civil RICO claim must be brought within four years after it accrues. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 107 S. Ct. 2759, 2767 (1987). As noted by the district court, Jaso admitted that the alleged threats occurred in 2000 and the alleged false statements occurred in 1994. With respect to the advertising, Jaso's complaint relied on invoices also from 1994. We further note that there was some evidence in the record suggesting that the defendants stopped using the Always song in 2000, at least in television advertising. Yet, Jaso provided no evidence that the defendants, rather than third-parties, distributed or authorized the distribution of the allegedly offending song at a later time.

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