United States District Court, D. Arizona
Russel Holland United States District Judge
for Summary Judgment; Motion to Join Indispensable
Party Plaintiff moves for summary
judgment. This motion is opposed and defendants
cross-move for summary judgment. Defendants' cross-motion
is opposed. Defendants also move to join an
indispensable party. This motion is opposed. Oral argument was
not requested on any of the pending motions and is not deemed
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.
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
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” (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. . . .”
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.” The Program was
broadcasted at the Taco Mich. and Bar in Spanish, not
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
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.
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).
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).
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. 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.
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
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 ...