United States District Court, D. Arizona
Hand Promotions Incorporated, Plaintiff, represented by
Thomas P. Riley, Law Offices of Thomas P Riley PC.
Shelley L Spain, Defendant, represented by Matthew Allen
Pare, Law Office of Matthew Pare.
L Spain, Defendant, represented by Matthew Allen Pare, Law
Office of Matthew Pare.
Capoeira Arizona LLC, Defendant, represented by Matthew Allen
Pare, Law Office of Matthew Pare.
STEPHEN M. McNAMEE, Senior District Judge.
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. (Doc. 24) The Court will grant the
Axe Capoeira ("Axe") is a small local martial arts
and dance studio located in Tempe, Arizona. (Doc. 30-2 at
Â¶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. (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 Â¶3.) Axe did not
advertise that the Program was being shown that evening. (Id.
at Â¶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 Â¶6.)
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.
Â§Â§ 553 and 605. (Doc. 1.)
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.
STANDARD OF REVIEW
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.
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 ...