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G & G Closed Circuit Events, LLC v. Arvizu

United States District Court, D. Arizona

October 1, 2019

G & G Closed Circuit Events, LLC, Plaintiff,
v.
Francisca Gonzalez Arvizu, et al., Defendants.

          ORDER

          H. Russel Holland United States District Judge

         Cross-motions for Summary Judgment; Motion to Join Indispensable Party Plaintiff moves for summary judgment.[1] This motion is opposed and defendants cross-move for summary judgment.[2] Defendants' cross-motion is opposed.[3] Defendants also move to join an indispensable party.[4] This motion is opposed.[5] Oral argument was not requested on any of the pending motions and is not deemed necessary.

         Facts

         Plaintiff is G & G Closed Circuit Events, LLC. Defendants are Francisca Gonzalez Arvizu, aka Francisca A. Gonzalez Arvizu, aka Angelica Gonzalez; and Taco Mich. & Bar 2 LLC.

         Taco Mich. & Bar 2 LLC is the owner of Taco Mich. & Bar in Glendale, Arizona. Gonzalez Arvizu is the sole member of the LLC and the registered agent for the LCC. She is also listed as the licensee/agent on the liquor license for Taco Mich. & Bar while the LLC is the owner of the license.[6]

         Plaintiff obtained from Golden Boy Promotions LLC “the exclusive license to exhibit [the] live English language telecast . . . of” the Alvarez/Chavez bout on May 6, 2017 as well as the “accompanying undercard matches”[7] (referred to as “the Program” herein). Plaintiff's exclusive license for the Program did not “include the right to exhibit the Event in any language other than English. . . .”[8]

         On May 6, 2017, the Program was shown at the Taco Mich. and Bar. Defendants did not obtain a sublicense from plaintiff. Rather, Gonzalez Arvizu avers that “the LLC has a subscription with Sky Televison, which provided the Program on a delayed transmission from Mexico.”[9] The Program was broadcasted at the Taco Mich. and Bar in Spanish, not English.[10]

         Plaintiff commenced this action on May 4, 2018. In its complaint, plaintiff asserts two claims: 1) a claim alleging that defendants violated 47 U.S.C. § 605 and 2) a claim alleging that defendants violated 47 U.S.C. § 553. There is a split of authority as to whether a single act of interception can violate both § 605 and § 553, and in its motion for summary judgment, plaintiff appears to indicate that it is abandoning its § 553 claim.[11]

         Plaintiff now moves for summary judgment on its § 605 claim and defendants cross-move for summary judgment dismissing this claim. Defendants also move to join Golden Boy Promotions LLC as an indispensable party.

         Discussion

         Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on the moving party to show that there is an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are also to be drawn in its favor. Id. at 255. “‘[T]he court's ultimate inquiry is to determine whether the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.'” Arandell Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623, 628-29 (9th Cir. 2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987)). When, as here, the “parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits.” Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citation omitted).

         “Section 605(a) of the Communications Act prohibits the unauthorized receipt and use of radio communications for one's ‘own benefit or for the benefit of another not entitled thereto.'” DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008) (quoting 47 U.S.C. § 605(a)). “[T]he ‘communications' protected by § 605(a) include satellite television signals.” Id. “Any person aggrieved by a violation of subsection (a) . . . may bring a civil action in a United States district court. . . .” 47 U.S.C. § 605(e)(3)(A). “‘[A]ny person aggrieved'” includes “any person with proprietary rights in the intercepted communication. . . .” 47 U.S.C. § 605(d)(6).

         As an initial matter, defendants argue that plaintiff is not an “aggrieved person” and thus does not have standing to bring a § 605 claim against defendants. This argument is based on the fact plaintiff's contract with Golden Boy Promotions only gave plaintiff “the exclusive license to exhibit [the] live English language telecast . . . of” the Program.[12] It is undisputed that the Program was broadcasted at the Taco Mich. and Bar in Spanish, not English. Thus, defendants argue that plaintiff lacks standing to bring a § 605 claim.

         Plaintiff argues that it does have standing to bring a § 605 claim against defendants because its license with Golden Boy Promotions gives it enforcement rights, regardless of in what language the Program was broadcasted. Plaintiff's licensing agreement with Golden Boy Promotions contains an “anti-piracy” clause that provides:

You and your sublicensees shall use their reasonable best efforts to employ adequate security systems and other measures to prevent theft, pirating, copying, duplication or unauthorized exhibition or transmission of the Event. You and your sublicenses shall promptly advise Promoter of any piracy (i.e., unauthorized use or proposed use) of the telecast in the Territory. Promoter and Licensee, acting jointly, shall have the right to commence or settle any claim or litigation arising out of the alleged piracy, use or proposed use of the telecast in the Territory. Promoter and Licensee shall notify each other in writing and shall consult with each other and mutually agree before commencing or settling any such claim or litigation in the Territory. Any damages, whether statutory, compensatory, punitive or otherwise, which Promoter or Licensee may recover from the theft, piracy, copying, duplication, unauthorized exhibition or transmission of the Event in the Territory, after payment of reasonable legal fees and disbursements, shall constitute gross revenues from the Event, to be shared by, and distributed to, Promoter and Licensee as provided in Paragraph 1 of this Agreement. Licensee shall advance all required legal fees and disbursements, subject to recoupment from any application recovery, and shall report all expenses, settlements and recoveries to Promoter on a quarterly basis. Your sublicensees shall have no right to commence or settle any claim or litigation arising out of the alleged piracy of the telecast hereunder without the prior written consent of Promoter.[13]

         For purposes of the licensing agreement “telecast” means the “live English language telecast”; the Event means “the captioned Bout and accompanying undercard matches[;]” and the Territory ...


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