United States District Court, D. Arizona
G. MURRAY SNOW, District Judge.
Pending before the Court are the Motion for Summary Judgment of J & J Sports Productions, Incorporated ("J & J Sports") (Doc. 27) and the Motion to Strike of Defendants Arthur D. Greathouse and Wildcat Enterprise, LLC. (Doc. 31.) For the following reasons, the Motion for Summary Judgment is denied and the Motion to Strike is granted in part and denied in part.
On May 7, 2011, an investigator employed by J & J Sports observed a boxing match being played on twelve televisions at the Silver Martini and Wine Bar ("Silver Martini") in Phoenix, Arizona. The boxing match, Manny Pacquiao vs. Shane Mosley WBO World Welterweight Championship Program, (the "Program") was telecast nationwide on closed-circuit television. J & J Sports held the exclusive commercial distribution rights to the broadcast and claims that Defendants intercepted the Program either from its cable or satellite transmissions. Mr. Greathouse and Wildcat have both admitted and denied having ownership of Silver Martini. However, they have consistently denied authorizing the showing of the Program and have provided a sworn affidavit to this effect.
J & J Sports now moves for summary judgment that Defendants intercepted and published the Program without its authorization, in violation of the Federal Communications Act of 1934, 47 U.S.C. § 605, and/or the Cable Act of 1992, 47 U.S.C. § 553.
I. Motion to Strike
Defendants move to strike J & J Sports' Motion for Summary Judgment because it is based, in large part, on the Defendants' purported failure to respond to a request for admissions during discovery. J & J Sports is correct in stating that a failure to respond to a request for an admission is deemed to be an admission. See Fed.R.Civ.P. 36; O'Campo v. Hardisty, 262 F.2d 621, 623 (9th Cir. 1958) ("Under Rule 36 of the Federal Rules of Civil Procedure the plaintiff, by her failure to answer the request for admissions as required by the rule, admitted the truth of all the matters contained in the request for admissions."). J & J Sports states that it sent requests for admissions to both Mr. Greathouse and to Wildcat, but that Wildcat did not respond. However, the record indicates otherwise. Both parties concede that Mr. Greathouse is a managing member of Wildcat and that he responded to the request for admission. Although part of the Defendants' response to J & J Sports' request for admission used the singular "Defendant, " Mr. Greathouse was clearly speaking on behalf of both Defendants. The Defendants' answer to the request was signed by both Defendants' attorneys and refers specifically to Wildcat. (Doc. 29, Ex. 2.) In addition, many of the documents submitted on behalf of Mr. Greathouse and Wildcat, including the briefings for the current Motions, have been filed jointly. Thus, Wildcat's purported failure to respond to J & J Sports' request was not an admission.
Although Wildcat's actions were not an admission, Defendants' request to strike the entire Motion for Summary Judgment is overbroad. J & J Sports bases its Motion not only on the purported admissions of Wildcat, but also on the sworn affidavit of its investigator. The portion of the Motion relying on the purported admissions will, therefore, be stricken and ignored, but the rest of the Motion will still be considered. See Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) ("It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.").
II. Summary Judgment
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates "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). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine factual issues "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (original emphasis omitted) (quoting Anderson, 477 U.S. at 250). When considering a motion for summary judgment, the nonmoving party's evidence is "to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
Section 605 prohibits interception of satellite television signals. DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). "[T]o be held liable for a violation of [47 U.S.C. § 605], a defendant must be shown to have (1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by the plaintiff." Nat'l Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981). Section 553 prohibits any person from intercepting, receiving, or assisting in the intercepting or receiving of any communications "offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." 47 U.S.C. § 553.
Because J & J Sports has alternately alleged that Defendants intercepted cable and satellite signals, both section 553 and 605 are potentially applicable. Courts presented with similar allegations have held section 605 controls because it "provides for greater damages and mandates attorney's fees." Kingvision Pay Per View, Ltd. v. Guzman, No. CV-07-0963-PHX-PGR, 2008 WL 1924988, at *1 (D. Ariz. Apr. 30, 2008); see also International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1009 (2nd Cir. 1993); Kingvision Pay-Per-View. Ltd. v. Backman, 102 F.Supp.2d 1196, 1197 (N.D. Cal. 2000). Thus, the Court's analysis will be limited to section 605.
Violation of section 605 is a strict liability offense. See 47 U.S.C. § 605; Don King Prods./Kingvision v. Lovato, No. C-95-2827 (TEH), 1996 WL 682006, at *3 (N.D. Cal. Nov. 15, 1996) ("The Cable Communications Act imposes strict liability under 47 U.S.C. §§ 553 and 605."). However, damages may be reduced substantially for violations that are not willful. See 47 U.S.C. § 605(c)(iii) ("[W]here the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250."). Interception and publication of programs may be proved by circumstantial evidence. Webb, 545 F.3d at 844 ...