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Joe Hand Promotions Inc. v. Donaldson

United States District Court, D. Arizona

June 15, 2016

Joe Hand Promotions Incorporated, Plaintiff,
v.
Lisa Marie Donaldson, et al., Defendants.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff’s Motion for Summary Judgment (the “Motion”) (Doc. 28), to which Defendants, who are pro se, have failed to file any response in opposition. Having considered the Motion in light of the relevant record, the Court finds that there is no genuine dispute as to material fact and that Plaintiff is entitled to the entry of judgment in its favor as a matter of law pursuant to Fed.R.Civ.P. 56.

         I. BACKGROUND

         For purposes of the Court’s resolution of the pending Motion, the Court considers the relevant facts and background, viewed in Defendant’s favor, [1] to be as follows.[2]

         This action arises from the alleged unlawful interception and broadcast of the Ultimate Fighting Championship 165: Jon Jones v. Alexander Gustafsson (hereinafter “the Program”) at Crossroads Bar & Grill on September 21, 2013. (Doc. 29 at 2). Joe Hand Promotions Inc. (hereinafter “Plaintiff”) is a business that distributes the rights to pay-per-view events to commercial entities for a fee. (Doc. 28-4 at 1-2). Plaintiff purports to have been granted the exclusive commercial distribution rights to the Program. (Doc. 29 at 2). The Program was telecast nationwide via closed-circuit television and included “the main event between Jones and Gustafsson, as well as all undercard bouts and commentary encompassed in the television broadcast of the event.” (Id. at 1).

         On September 21, 2013, the Program was exhibited on televisions at Crossroads Bar & Grill, a commercial establishment located at 5030 W. McDowell Road, #39, Phoenix, Arizona 85035. (Doc. 29 at 2) (Doc. 28-2 at 2). Plaintiff did not authorize Crossroads Bar & Grill to broadcast any portion of the Program. (Doc. 29 at 3). Defendant Lisa Marie Donaldson, the general partner and manager of Crossroads B & G Family Limited Partnership, d/b/a Crossroads Bar & Grill on September 21, 2013, was also not authorized to exhibit the Program. (Id. at 2-3). Defendant Lisa Marie Donaldson was inside Crossroads Bar & Grill at the time of the broadcast of the Program. (Id. at 3). Defendants were aware that a commercial sub-licensing fee had to be paid to Plaintiff to lawfully broadcast the Program at Crossroads Bar & Grill, but Defendants did not obtain such a license. (Id.)

         On September 15, 2014, Plaintiff filed a Complaint against James R. Lumley, individually and as an officer of Crossroads Bar & Grill, and against Crossroads B & G Limited Partnership, d/b/a Crossroads Bar & Grill. (Doc. 1). On January 8, 2015, Plaintiff filed an Amended Complaint against Lisa Marie Donaldson individually and as an officer of Crossroads Bar & Grill, and against Crossroads B & G Limited Partnership, d/b/a Crossroads Bar & Grill. (Doc. 10). Plaintiff’s Amended Complaint alleges claims under Title 47 U.S.C. § 605 (2014) and Title 47 U.S.C. § 553 (2014). (Id.). The Amended Complaint further maintains that Plaintiff is entitled to statutory damages in the amount of $110, 000 as to each Defendant as a result of Defendants’ violation of § 605, or statutory damages in the amount of $60, 000 as a result of Defendants’ violation of § 553. (Id. at 8). Finally, the Complaint alleges that the unlawful exhibition of the Program by Defendants was done willfully and for purposes of commercial advantage and/or private financial gain. (Id. at 5).

         Plaintiff served Defendants with the summons and the Complaint. (Doc. 2). Lisa Marie Donaldson, pro se, filed an answer (Doc. 14) on March 18, 2015. In her answer, Lisa Marie Donaldson admitted that the Program “was purchased and showed at 5030 W. McDowell, #39 Ph[oeni]x, AZ 85035, ” the address of Crossroads Bar & Grill (Id.). However, Defendant asserted that Plaintiff is not entitled to judgment because the Program was only “viewed by the staff and friends, ” and “there was no monetary gain.” (Id.)

         Though Defendant Lisa Marie Donaldson filed an answer to the Complaint, the Court notes that she thereafter failed to appear for the Rule 16 Scheduling Conference held on May 6, 2015. (Doc. 21). Plaintiff served its requests for admissions on Defendants on July 30, 2015, but Defendants never responded to them; one set of the admissions requests was directed to Defendant Lisa Marie Donaldson and one set was directed to Defendant Crossroads B & G Limited Partnership. (Doc. 28-3 at 8-36). Plaintiff filed its Motion for Summary Judgment (Doc. 28) on January 8, 2016, but Defendants have also failed to respond to this Motion.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate when “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). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, ” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Id. at 56(c)(1)(A-B). Accordingly, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The moving party initially has the burden to show that material facts are not genuinely disputed. Id. at 323. Once the moving party meets this burden, the nonmoving party must then establish the existence of material fact by presenting evidence showing that there is a genuine issue for a fact-finder to resolve at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)). A dispute about a material fact is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant’s bare assertions, standing alone, or “the mere existence of some alleged factual dispute between the parties” is insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-248. Further, because “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, . . . [t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor” at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159 (1970)); Harris v. Itzhaki, 183 F.3d 1043, 1051 (9th Cir. 1999) (“Issues of credibility, including questions of intent, should be left to the jury.”) (internal citations omitted).

         III. DISCUSSION

         Plaintiff’s Amended Complaint alleges two counts: 1) violation of 47 U.S.C. § 605; and 2) violation of 47 U.S.C. § 553. (Doc. 10). However, the Plaintiff is only seeking summary judgment damages under 47 U.S.C. § 605, as well as an award of costs and reasonable attorneys’ fees.[3] (Doc. 28-1 at 20).

         Defendants’ Failure to Respond to the Motion

         Where the non-movant fails to respond to the movant’s Motion for Summary Judgment, the Court is not required to grant the Motion, even in light of Local Rules of Civil Procedure providing “that the Court may deem a party’s failure to respond [. . .] as consent to the granting of the motion.” Finkle v. Ryan, CV-14-01343-PHX-DGC, 2016 WL 1241878, at *3 (D. Ariz. Mar. 30, 2016) (finding that plaintiff’s failure to respond to defendants’ motion for summary judgment did not warrant granting the motion despite Local Rule of Civil Procedure 7.2(i)). The Ninth Circuit has clarified that such local rules cannot provide a valid basis for granting a motion for summary judgment where the motion is unopposed, as Federal Rule of Civil Procedure 56 “authorizes the court to consider a fact as undisputed, ” but does not allow the court to grant summary judgment by default. Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (finding that Western District of Washington Local Rule 7(b)(2) conflicts with Federal Rule of Civil Procedure 56 and “cannot provide a valid basis for granting a motion for summary judgment”). Accordingly, the Court will address the moving party’s motion, in such a case, on the merits. Finkle, 2016 WL 1241878, at *3.

         Here, Defendants have failed to respond to Plaintiff’s Motion or file a brief in opposition to the Motion for Summary Judgment. Regardless of this fact, the Court may not grant summary judgment by default against Defendants. Rather, the Court may only grant a Motion for Summary Judgment if “there is no genuine issue as to any ...


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