ROBERT E. WIER, Magistrate Judge.
Plaintiff J & J Sports Productions, Inc. (J & J Sports) moved for summary judgment on all claims against Defendant Tonita Restaurant, LLC, an unknown business entity d/b/a Tonita Restaurant a/k/a Club Nocturno Tonitas Bar/Grill/Nightclub (Tonita).
On November 12, 2011, Manny Pacquiao fought Juan Manuel Marquez for the World Boxing Organization Welterweight Championship.
A court "shall grant summary judgment if 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 reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . 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., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
With no Defendant response or filing, the Court, as it earlier notified Defendant it would, "consider[s Tonita] to have no factual or legal basis for opposing the relief sought by Plaintiff." DE #37 (Order). J & J Sports proves its entitlement to relief regarding the federal statute, but not conversion.
47 U.S.C. § 605(a).
"Any person aggrieved by any violation of subsection (a) of this section . . . may bring a civil action in a United States district court[.]" 47 U.S.C. § 605(e)(3)(A). Section (d)(6) defines "any person aggrieved". J & J Sports plainly falls under the definition here. See Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 912-13 (6th Cir. 2001) ("By adding satellite communications under the protection of § 605 . . . Congress sought to make clear that those with `proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming,' 47 U.S.C. § 605(d)(6), have standing to sue.").
J & J Sports proves through its unopposed motion that Tonita violated § 605(a). The unopposed evidence shows that Tonita, without authorization, intercepted the Program and/or received, divulged, and published its contents to another person by displaying the Program at Tonita Restaurant on November 12, 2011, without authorization or a license while individuals were present. See, e.g., DE #36-3 (Keebortz Affidavit), at 3 (averring that, at 9:48 p.m. on November 12, 2011, Investigator Keebortz entered Club Nocturno Tonitas Bar/Grill/Nightclub on Winchester Road in Lexington and observed that the establishment "was displaying" the program). The investigator counted approximately 15 people inside the establishment and 3 televisions/viewing monitors. Id. He noted that he heard Juan Carlos Burgos announced as a winner of an undercard bout. Id. Joseph M. Gagliardi, J & J Sports's President, confirmed via affidavit that Tonita never "lawfully license[d] the Program from J & J Sports Productions, Inc." DE #36-4, at ¶ 7. At a minimum, this violates sentence one of § 605(a). Eliadis, 253 F.3d at 915-17. Further, Defendant admitted, through unanswered requests for admissions, that it intercepted the broadcast of the Event, broadcast the Event, and did not obtain a license to broadcast the Event. DE #46-1. Tonita is thus liable to J & J Sports on Count I of the Complaint. The Court
The Court "may award damages as described in subparagraph (C)[.]" 47 U.S.C. § 605(e)(3)(B)(ii). The aggrieved party may elect either to recover actual or statutory damages. Id. § 605(e)(3)(C)(i). J & J Sports chose statutory damages. DE #36-1, at 10. Thus, "the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section 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). Further, "[i]n any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a) of this section." Id. § 605(e)(3)(C)(ii). Additionally, "[i]n any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250." Id. § 605(e)(3)(C)(iii). "Plaintiff requests $6,600 in statutory damages and $19,800 in enhanced statutory damages [under (e)(3)(C)(ii)], for a total award under Section 605 of $26,400." DE #36-1, at 10.
Defendant does not oppose Plaintiff's damage valuation.
"The Supreme Court has defined `willful' in the context of civil statutes as conduct showing `disregard for the governing statute and an indifference to its requirements.' Transworld Airlines, Inc. v. Thurston, 105 S.Ct. 613, 624 (1985). . . . Other district courts have ruled that a court may draw an inference of willfulness from a defendant's failure to appear and defend an action in which the plaintiff demands increased statutory damages based on allegations of willful conduct. Time Warner Cable of N.Y.C. v. Olmo, 977 F.Supp. 585, 589 (E.D.N.Y. 1997); Fallaci v. The New Gazette Literary Corp., 568 F.Supp. 1172, 1173 (S.D.N.Y. 1983)." Easterling, 2009 WL 1767579, at *6 n.2 (internal quotation marks and paragraph breaks removed; citations altered). The Court, utilizing the appropriate "inference of willfulness from a defendant's failure to appear and defend an action," and based on the tendered unopposed evidence (including the unanswered requests for admissions), finds the (e)(3)(C)(ii) predicates satisfied. Ultimately, the Sixth Circuit gives district courts great discretion to calculate § 605 damages. Eliadis, 253 F.3d at 918 ("Although the district court did not specify precisely how it arrived at the final figure of $4,500, we conclude that the proof supports the damage calculation, that the amount is well within the statutory range, and that the award is not clearly erroneous.").
The unpaid licensing fee here, per the proffered schedule, is $2,200.
J & J Sports also seeks recovery under a Kentucky state-law conversion theory. "Conversion is an intentional tort that involves the wrongful exercise of dominion and control over the property of another." Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. Ct. App. 2014). "In Kentucky, a claim of conversion consists of the following elements:
Ky. Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 n.12 (Ky. 2005).
J & J Sports's entire discussion of its conversion claim is the following: "Plaintiff had the exclusive commercial distribution rights over the Program, and, as such, Defendants' interception and broadcast of the Program without Plaintiff's authority, as established above, is a conversion." DE #36-1, at 9.
Kentucky courts do not appear to have addressed whether conversion applies to intangible property, like the satellite signals or television broadcast at issue here. Most states, however, have rejected or at least qualified intangible conversion, as do most states in the Sixth Circuit. See Stratienko v. Cordis Corp., 429 F.3d 592, 602-03 (6th Cir. 2005) (acknowledging Tennessee's determination that "only a minority of courts recognizes conversion of intangible property"); Wells v. Chattanooga Bakery, Inc., 448 S.W.3d 381, 392 (Tenn. Ct. App. 2014) ("[A]n action for the conversion of intangible personal property is not recognized in Tennessee."); Sarver v. Detroit Edison Co., 571 N.W.2d 759, 586 (Mich. Ct. App. 1997) (only extending conversion to "the kind of intangible rights which are customarily merged in, or identified with, some document or other tangible property");
In similar circumstances, the Sixth Circuit has previously affirmed dismissal and "decline[d] to extend Tennessee's law of conversion." Intera Co., Ltd. v. Dow Corning Corp., 19 F.3d 19, at *4 (6th Cir. 1994) (table). Even if the Court considered J & J Sports's conversion claim legally proper under Kentucky law, Plaintiff has not proven an entitlement to relief. Specifically, J & J Sports put forward no proof, at a minimum, that Defendant "exercised dominion over the property in a manner which denied the plaintiff's rights to use and enjoy the property[,]" that Defendant's "act was the legal cause of the plaintiff's loss of the property[,]" or that J & J Sports "made some demand for the property's return which the defendant refused" or "los[t]" the property. Thus, regardless of Kentucky's posture as to intangible conversion (i.e., even if the Commonwealth recognizes such a theory), Plaintiff fails to put forward sufficient proof to supports its claim for summary judgment on state-law conversion. The Court thus
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). The Court has determined that J & J Sports is an aggrieved party, and it has prevailed on the statutory claim in this case. Therefore, per the statute, Plaintiff is entitled to an award of full costs, including reasonable attorney fees. J & J Sports
On the terms and for the reasons stated, the Court
The Clerk shall serve this Order on Defendant Tonita Restaurant, LLC, at the address listed in DE #32, at 2.
Defendant's failure to engage in the litigation is significant. For instance, its failure to answer or object to requests for admission within 30 days results in the matters being admitted and "conclusively established." Fed. R. Civ. P. 36(a)(3), (b); see Ky. Petroleum Operating Ltd. v. Golden, No. 12-164-ART, 2015 WL 927358, at *3 & *3 n.2 (E.D. Ky. Mar. 4, 2015) (relying on the facts of unanswered requests for admission and enforcing the rule). "Unanswered requests for admissions may be relied on as the basis for granting summary judgment." Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007). By failing to respond, Defendant admitted that, inter alia, it intercepted the broadcast of the Event, broadcast the Event, advertised that the Event would be telecast, required a cover charge, and did not obtain a license to broadcast the Event. DE #46-1 (Unanswered Requests for Admissions). Additionally, if a party "fails to properly address another party's assertion of fact . . . the court may . . . consider the fact undisputed for purposes of the motion[.]" Fed. R. Civ. P. 56(e)(2).
A court may grant "summary judgment sua sponte . . . so long as the losing party has notice and an opportunity to respond[,]" which is satisfied when the losing party "presented the claim to the district court" and "had considerable opportunity to address" the claim, as J & J Sports did here. Global Petromarine v. G.T. Sales & Mfg., Inc., 577 F.3d 839, 844 (8th Cir. 2009); see also United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955-56 (9th Cir. 2008).
