JAMES A. TEILBORG, Senior 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.
For purposes of the Court's resolution of the pending Motion, the Court considers the relevant facts and background, viewed in Defendant's favor,
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.
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).
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.
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 material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Plaintiff alleges that it is entitled to summary judgment because "Defendants [have] failed to respond to [the] Request for Admissions and, therefore, Defendants have admitted liability herein." (Doc. 28-1 at 10) As a result, Plaintiff contends that Defendants' admissions, inter alia, establish that "there is no genuine issue of material fact regarding whether Defendants unlawfully intercepted and broadcast[ed] the program at their commercial establishment." (Doc. 28-1 at 7-10). This Court agrees, as each of the relevant facts necessary to establish Defendants' liability under 47 U.S.C. § 605 have been conclusively established as a result of Defendants' failure to respond to the requests for admissions. See Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) ("Unanswered requests for admissions may be relied on as the basis for granting summary judgment."); Layton v. Int'l Ass'n of Machinists & Aerospace Workers, 285 F. App'x 340, 341 (9th Cir. 2008) (holding that "[t]he district court did not err when it deemed facts admitted because of [plaintiff-appellant's] failure to timely respond to requests for admission" as a basis for entry of summary judgment in favor of defendant-appellee).
Pursuant to Federal Rule of Civil Procedure 36, a matter is deemed admitted unless "the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Fed. R. Civ. P. 36(a)(3). Plaintiff served Requests for Admissions on each Defendant on July 30, 2015, but, as of the current date, Defendants have not responded to Plaintiff's Requests for Admissions. (Doc. 28-1 at 10). Accordingly, because Defendants have failed to respond within the statutorily required time frame, Plaintiff's Requests for Admissions are deemed admitted. Fed. R. Civ. P. 36(a)(3).
While it is undisputed that the Program was shown at Crossroads Bar & Grill on September 21, 2013 (Doc. 29 at 2) (Doc. 14 at 1), Defendant Lisa Marie Donaldson indicated in her answer that "the fight was purchased," it was "viewed by the staff and friends, [and] there was no monetary gain." (Doc. 14 at 1). Though these statements by Defendant directly contradict Plaintiff's allegations that Defendants unlawfully displayed the Program "willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain," (Doc. 10 at 5) the Court notes that "[e]vidence inconsistent with a Rule 36 admission is properly excluded." 999 v. C.I.T. Corp., 776 F.2d 866, 869-70 (9th Cir. 1985) (citing Fed. R. Civ. P. 36(b) advisory committee note (1970)). See also GTE Directories Corp. v. McCartney, 11 F. App'x 735, 737 (9th Cir. 2001) (holding that it is appropriate to grant summary judgment where defendant non-moving party's submission of admissible evidence allegedly contradicts the deemed admissions and where defendant non-moving party has failed to withdraw these admissions under Rule 36(b)). Here, Defendants have failed to file a Rule 36(b) motion to withdraw admissions. Accordingly, this Court finds that it is appropriate to grant summary judgment even though Defendant Lisa Marie Donaldson's statements in her answer directly contradict the deemed admissions.
Unless one of the exceptions described in subsection (b) apply
47 U.S.C. § 605(a).
Though Section 605(a) of Title 47 of the United States Code does not explicitly reference satellite communications, satellite television signals are among the communications protected by this statute. Directv, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008); See also Kingvision Pay Per View, Ltd. v. Guzman, No. CV-07-0963-PHX-PGR, 2008 WL 1924988, at *1 (D. Ariz. Apr. 30, 2008) ("The position taken by a majority of courts is that signals broadcast through the air via radio and satellite are generally within the purview of § 605, including programming transmitted via satellite to cable operators for their transmission to cable subscribers."). Further, due to the secretive nature of signal piracy ventures, 47 U.S.C. § 605(a) "does not require direct evidence to support a factual finding," as "[c]ircumstantial evidence may be sufficiently persuasive" to prove unlawful interception. Directv, Inc. v. Webb, 545 F.3d at 844. Finally, 47 U.S.C. § 605 also provides that "any person with proprietary rights in the intercepted communication by wire or radio" may file a "civil action in a United States district court." 47 U.S.C. § 605(d)(6), (e)(3)(A).
Here, Plaintiff's claim in the Amended Complaint under 47 U.S.C. § 605 alleges that Defendants "did unlawfully intercept, receive, publish, divulge, and/or exhibit the Program at the time of its transmission" at Crossroads Bar & Grill, and that they did so "[w]ith full knowledge that the Program was not to be intercepted, received, published, divulged, and/or exhibited by commercial entities unauthorized to do so." (Doc. 10 at 5). This Complaint also alleges that this unauthorized exhibition of the Program "by each of the Defendants was done willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain." (Id.).
Defendants' here have failed to respond to the plaintiff's Motion for Summary Judgment as well as the requests for admissions. Accordingly, this Court agrees with Plaintiff that Defendants have admitted, inter alia, each of the necessary facts required to find Defendants liable under 47 U.S.C. § 605 by failing to respond to Plaintiff's requests for admissions. See Fed. R. Civ. P. 36(a)(3). Specifically, Defendants have admitted each of the following, as discussed in Plaintiff's Brief in Support of Motion for Summary Judgment:
(Doc. 28-1 at 10-11).
These facts admitted by Defendants conclusively prove each of Plaintiff's allegations in its Complaint and establish that Defendants unlawfully intercepted and profited from the illegal broadcasting of the Program at Crossroads Bar & Grill. Further, Plaintiff has established that it holds the proprietary rights to the intercepted Program. (Doc. 28-4 at 9-34). Accordingly, Defendants are liable under 47 U.S.C. § 605 and Plaintiff is entitled to an award of damages. Further, Defendants have not responded and have not established the existence of any disputed fact. As a result, Plaintiff is entitled to summary judgment on its claim under § 605.
Under Title 47 of the United States Code Section 605, the Court may award statutory damages to the aggrieved party "for each violation [ . . . ] involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just." 47 U.S.C. § 605(e)(3)(C)(i)(II). The aggrieved party is the party holding any "proprietary rights in the intercepted communication." 47 U.S.C. § 605(d)(6). Section 605 also permits an additional award of enhanced damages where "the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. § 605(e)(3)(C)(ii). The Court has discretion to award these enhanced damages in an amount of up to $100,000. Id.
Here, Plaintiff seeks a total award of damages in the amount of $30,000. (Doc. 28-1 at 15). Specifically, Plaintiff requests $10,000 in statutory damages and $20,000 in enhanced statutory damages.
Though there is no specific, established formula for calculating either statutory or enhanced damages under 47 U.S.C. § 605, courts within this district commonly consider "factors such as the maximum capacity of the commercial establishment, the total number of patrons present at the time of the unauthorized showing, and the amount defendant would have paid if it had purchased the rights to show the broadcast" in awarding statutory damages. J & J Sports Productions, Inc. v. Vargas, CV-11-02229-PHX-JAT, 2013 WL 1249206, at *3 (D. Ariz. Mar. 27, 2013) (awarding $4,000 in statutory damages and $10,000 in enhanced damages where defendants acted willfully and illegally displayed a program to 125-130 patrons in an establishment with a capacity of 150). In awarding enhanced damages, courts may "consider `prior infringements, substantial unlawful monetary gains, significant actual damages to the plaintiff, the defendant's advertising of the broadcast, and the defendant's charging a cover charge or premiums for food and drinks during the broadcast.'" Joe Hand Promotions, Inc. v. Pinkhasov, CV-11-02437-PHX-FJM, 2012 WL 3641451, at *1 (D. Ariz. Aug. 24, 2012) (awarding $10,000 in statutory damages and $5,000 in enhanced damages where defendant charged a cover fee while illegally displaying a program in a business with a maximum capacity of 1,000 and where between 18-26 patrons were present) (quoting Kingvision Pay-Per-View, Ltd. v. Guzman, CV-07-0963-PHX-PGR, 2008 WL 1924988, at *3 (D. Ariz. Apr. 20, 2008)) (awarding statutory damages in the amount of $1,000 and enhanced damages in the amount of $3,000 where 10 patrons were present and where defendant advertised the illegally shown program, but where there was no cover charge or allegations of prior infringement).
Plaintiff is also correct that deterrence is one of the objectives considered in awarding both statutory and enhanced damages in claims brought under 47 U.S.C. § 605. Pinkhasov, 2012 WL 3641451, at *1. (awarding statutory damages after considering "the goal of deterring cable piracy"); See also Joe Hand Promotions, Inc. v. Coen, CV-11-2531-PHX-JAT, 2012 WL 2919710, at *2 (D. Ariz. July 17, 2012) (holding that "enhanced damages are desirable in many cases because of their tendency to deter future violations").
Here, Plaintiff's investigator, Amanda Hidalgo, stated in her affidavit that Crossroads Bar & Grill has a maximum capacity of approximately 70 people and that 16 individuals were present within the Bar during her investigation. (Doc. 28-2 at 2-3). Plaintiff's investigator also indicated that she saw the Program playing on four of the six televisions within the establishment. Id. Although Plaintiff's investigator does not mention that the program was advertised in any manner or whether patrons of Crossroads Bar & Grill had to pay a cover charge and/or premiums, Defendants have admitted that they advertised the program and charged a cover charge through their failure to respond to the requests for admissions. (Doc. 28-3 at 8-36). Further, Plaintiff has submitted evidence indicating that it would have cost Defendants $850.00 to legally exhibit the Program within Crossroads Bar & Grill by purchasing the sublicense fee from Plaintiff. (Doc. 28-4 at 3, 36). However, there is no specific evidence of a premium being charged for food or drinks. Additionally, Plaintiff indicates in its Brief in Support of its Motion for Summary Judgment that this is the third allegation of piracy it has made against Defendants, noting that two additional cases against Defendants are pending but have yet to be adjudicated. (Doc. 28-1 at 18).
Based on the evidence presented, the Court concludes that a statutory damages award pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II) in the amount of $3,000 is just. Further, because the evidence indicates that Defendants' violation was willful and for purposes of both commercial and personal gain, the Court also awards an enhanced damages award pursuant to § 605(e)(3)(C)(ii) in the amount of $5,000.
Plaintiff requests in its Complaint and in its Brief in Support of Motion for Summary Judgment that it be permitted to file its request for attorneys' fees and costs. (Doc. 28-1 at 20). Under 47 U.S.C. § 605, the Court "shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff is directed to comply with LRCiv 54.1 and LRCiv 54.2 in applying for its costs and fees. See AZ R USDCT LRCiv 54.1-.2.
Therefore,
