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Joe Hand Promotions Inc v. Matijevich

United States District Court, N.D. Indiana, Hammond Division

March 22, 2017

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
ROBERT J. MATIJEVICH, individually and d/b/a L.F. NORTONS, and UDL, LLC, d/b/a L.F. NORTONS. Defendants.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment [DE 24], filed by Plaintiff on July 25, 2016, and on Defendants' Cross Motion for Summary Judgment [DE 26], filed on August 1, 2016.[1] Plaintiff filed a response to Defendants' Cross Motion for Summary Judgment on August 17, 2016. The parties did not file any other responses or replies, and the time to do so has passed.

         I. Procedural Background

         Plaintiff filed its Complaint on March 11, 2015, alleging that Defendants unlawfully published a TV program to which Plaintiff had exclusive commercial distribution rights. On July 8, 2016, by written consent of the parties, this case was reassigned to the undersigned United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         II. Summary Judgment Standard

         ` The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “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). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, 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) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is appropriate - in fact, is mandated - where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted). To demonstrate a genuine issue of fact, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, ” but must “come 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)).

         In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986); Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Liberty Lobby, 477 U.S. at 249-50.

         III. Facts

         The parties do not dispute the following facts. Plaintiff owned the exclusive commercial distribution rights to a TV broadcast of Ultimate Fighting Championship 158: Georges St. Pierre v. Nick Diaz, a series of mixed-martial-arts fights on March 16, 2013. Plaintiff sold licenses to various commercial establishments, such as bars and restaurants, so that they could show UFC 158 publically.

         Defendant UDL, LLC, and its officer, Defendant Robert J. Matijevich, own and operate L.F. Nortons, a bar in Lake Station, Indiana. On March 16, 2013, Peter Skoubas, an L.F. Nortons patron, brought his personal DIRECTV satellite box into the bar and asked that it be hooked up to the bar's TVs. Mr. Skoubas had paid to watch UFC 158 on pay-per-view through his DIRECTV box. Bar staff plugged the box into the LF Nortons TV system, and at least one TV displayed UFC 158 while several people were in the bar. None of Defendants nor Mr. Skoubas purchased a license from Plaintiff to show UFC 158 in a commercial setting.

         IV. Analysis

         For Defendants' showing of UFC 158, Plaintiff asserts three claims: violation of 47 U.S.C. § 605 (unauthorized publication or use of communications), violation of § 47 U.S.C. 553 (unauthorized reception of cable service), and conversion. Plaintiff did not move for summary judgment on the conversion claim, so the Court likewise does not address that claim. A. Sections 605 & 553 Sections 605 and 553 independently criminalize unlawful interceptions of cable programming. Both sections provide a civil right of action to any “person aggrieved by” the unlawful interceptions. 47 U.S.C. §§ 605(e)(3), 553(c).

         A threshold question, though, is whether Plaintiff may pursue relief under both sections. Plaintiff argues that there is a “split of authority among the district courts as to whether an interception may violate both 47 U.S.C. § 605 and 47 U.S.C. § 553.” Def. Mot. at 5 [DE 25]. However, “Congress intended for § 605 to apply to the unlawful interception of cable programming transmitted through the air, while it intended for § 553 to apply to the unlawful interception of cable programming while it is actually being transmitted over a cable system.” United States v. Norris, 88 F.3d 462, 469 (7th Cir. 1996).

         Whether Defendants are liable under either § 605 or § 553, then, depends on how UFC 158 was transmitted - through the air or by cable. Although the parties provide no argument one way or the other, Mr. Skoubas's affidavit says that he purchased the pay-per-view rights to UFC 158 “through [his] satellite provider Direct TV” and that he took his “satellite box with [him] to LF Nortons” on March 16 to watch the fights. Defendants do not dispute these facts. Accordingly, § 605 ...


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