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Joe Hand Promotions Inc. v. Spain

United States District Court, D. Arizona

August 4, 2016

Joe Hand Promotions Incorporated, Plaintiff,
Shelley L Spain, et al., Defendants.


          Honorable Stephen M. McNamee Senior United States District Judge

         Pending before the Court is Defendants’ Motion for Summary Judgement. (Doc. 30.) Plaintiff has responded and the motion is fully briefed. (Docs. 32, 33.) Pursuant to the Case Management Order, the scope of the motion for summary judgement is limited to the issue of the Internet defense.[1] (Doc. 24) The Court will grant the Motion.


         Defendant Axe Capoeira (“Axe”) is a small local martial arts and dance studio located in Tempe, Arizona. (Doc. 30-2 at ¶2.) At the time of the events giving rise to this lawsuit, Axe was owned by Axe Capoeira Arizona, LLC, a company in which Defendant Julius L. Spain had an ownership interest.[3] (Id.) On February 1, 2014 Axe exhibited Ultimate Fighting Championship 169: Renan Barao v. Urijah Faber (“the Program”) via the Internet using an Xbox device. (Id. at ¶3.) Axe did not advertise that the Program was being shown that evening. (Id. at ¶6.) “It was . . . shown at a social gathering that was taking place at the establishment outside the normal operating hours. There were students present at the time and kids.” (Id.) An investigator sent by the Plaintiff observed 22 people at the gathering. (Doc. 32-2.) There was no cover charged to access Axe during the showing and the gathering did not generate revenue. (Doc. 30-2 at ¶6.)

         Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”), pursuant to a contract with Zuffa, LLC d/b/a Ultimate Fighting Championship (“UFC”), had exclusive nationwide commercial closed circuit television distribution rights to the Program. (Doc. 32-4 at 10.) According to the contract, UFC retained its absolute rights to show the Program to “residences, hotel rooms, dormitories, military base residential living, and all similar locations, via any and all means and modes of pay-per-view television, Internet, wireless, broadband, and all other means or modes now known or hereafter developed.” (Id. at 11) Defendants purchased the Program from the website UFC.TV for $48.72. (Doc. 32 at 4.) Plaintiff brought this lawsuit asserting Axe’s display of the Program was unlawful under 47 U.S.C. §§ 553 and 605. (Doc. 1.)[4]

         A Rule 16 Case Management Conference took place on August 13, 2015 before Judge David G. Campbell. (Doc. 23.) Thereafter, the Court issued a Case Management Order that directed the Parties to conduct discovery and file a motion for summary judgement on the narrow issue of whether Defendants’ streaming of the program over the Internet constitutes a valid defense to Plaintiff’s claims (i.e. the Internet defense). (Doc. 24.) The order stated that if the case should survive summary judgement on the Internet defense, a second case management hearing would take place to discuss the next steps of discovery. (Id.) Subsequently, the matter was reassigned to this Court.


         A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Jesinger, 24 F.3d at 1130.

         A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 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.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment need not produce evidence “in a form that would be admissible at trial in order to avoid summary judgment.” Id. at 324. However, the nonmovant “may not rest upon the mere allegations or denials of [the party’s] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

         III. ANALYSIS

         47 U.S.C. § 553(a)(1), governing the unauthorized reception of cable services states:

No person shall intercept or receive or assist in intercepting or receiving any communications services offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.

(emphasis added).

         47 U.S.C. § 605, governing the unauthorized publication or use of ...

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