Dish Network L.L.C. v. Fraifer et al

Filing 267

ORDER: "Defendants' Motion to Certify Decision for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and to Stay Proceedings Pending Appeal" (Doc. 261) is denied. See Order for details. Signed by Judge Thomas P. Barber on 7/1/2020. (ZRN)

Case 8:16-cv-02549-TPB-CPT Document 267 Filed 07/01/20 Page 1 of 5 PageID 10762

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DISH NETWORK L.L.C.,
Plaintiff/Counter-Defendant,
v.

Case No. 8:16-cv-2549-T-60-CPT

GABY FRAIFER, TELE-CENTER,
INC., and PLANET TELECOM, INC.,
individually and together d/b/a
UlaiTV, PlanetiTB, and AhlaiTV,
Defendants/Counter-Plaintiffs.

/

ORDER DENYING “DEFENDANTS’ MOTION TO CERTIFY DECISION FOR
INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. § 1292(B)
AND TO STAY PROCEEDINGS PENDING APPEAL”
This matter is before the Court on “Defendants’ Motion to Certify Decision for
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and to Stay Proceedings
Pending Appeal,” filed on April 29, 2020. (Doc. 261). Plaintiff DISH Network,
L.L.C. responded in opposition on May 12, 2020. (Doc. 263). Upon review of the
motion, response, court file, and record, the Court finds as follows:
Background
Plaintiff DISH Network, L.L.C. (“DISH”) initiated this action in August 2016,
alleging that Defendants infringed on DISH’s copyright by capturing broadcasts of
television channels exclusively licensed to DISH and retransmitted them over the
internet to customers in the United States. (Doc. 62). Defendants filed
counterclaims for conversion, trespass, and breach of contract. (Docs. 77-79; 104).

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However, the Court dismissed with prejudice the conversion and trespass claims.
(Doc. 115).
The parties filed cross motions for summary judgment as to DISH’s copyright
infringement claim. (Docs. 146; 217). DISH also moved for summary judgment on
Defendants’ breach of contract counterclaim. (Doc. 146). Each party responded in
opposition to the other’s summary judgment motion. (Docs. 151; 224). Additionally,
Defendants filed a reply to DISH’s response in opposition to their summary
judgment motion, and DISH filed a sur-reply. (Docs. 228; 237).
In his report and recommendation, United States Magistrate Judge
Christopher P. Tuite recommended that the Court grant in part DISH’s motion for
summary judgment and enter partial summary judgment in Plaintiff’s favor on the
issue of ownership of valid copyrights and on Defendants’ amended counterclaim.
Judge Tuite further recommended that the Court deny Defendants’ amended
motion for summary judgment. Plaintiff and Defendants objected to Judge Tuite’s
report and recommendation. (Docs. 250; 253-255). The Court overruled the
objections and adopted Judge Tuite’s report and recommendation. (Doc. 257).
Defendants now request that the Court certify its decision adopting the report and
recommendation for interlocutory appeal and stay the proceedings pending such
appeal. (Doc. 261).

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Legal Standard
Interlocutory appeals under 28 U.S.C. § 1292(b) are designed specifically to
resolve “abstract legal issues or issues of pure law.” PFM Air, Inc. v. Dr. Ing. hc. F.
Porsche A.G., 751 F. Supp. 2d 1264, 1269 (M.D. Fla. 2010) (internal quotations
omitted). Granting a motion to certify a question for interlocutory appeal is “an
exceptional remedy, and the party moving for certification bears the heavy burden
of demonstrating that immediate appellate review is appropriate.” Hamrick v.
Partsfleet, LLC, No. 6:19-cv-137-Orl-78DCI, 2019 WL 6317255, at *2 (M.D. Fla. Oct.
10, 2019) (quoting Local Access, LLC v. Peerless Network, Inc., No. 6:14-cv-399-Orl40TBS, 2016 WL 6990734, at *1 (M.D. Fla. Nov. 29, 2016)); see also Grey Oaks
Country Club, Inc. v. Zurich Am. Ins. Co., No. 2:18-cv-639-FtM-99NPM, 2019 WL
4594591, at *3 (M.D. Fla. Sept. 23, 2019) (explaining that interlocutory review is a
“rare exception” that should only be granted in the most “exceptional cases”).
When considering whether to certify a question for interlocutory appeal, a
court must consider whether “(1) the order involves a controlling question of law; (2)
there is substantial ground for difference of opinion; and (3) an immediate appeal
would materially advance the ultimate termination of the litigation.” Knepfle v. JTech Corp., No. 8:18-cv-543-T-60CPT, 2020 WL 1974225, at *1 (M.D. Fla. Apr. 24,
2020) (quoting Hunter v. Chrysler Canada, Inc., No. 6:09-cv-1050-Orl-35GJK, 2010
WL 11507702, at *1 (M.D. Fla. Aug. 4, 2010)). The party seeking the appeal bears
the burden to establish that it has met all three elements. Gurzi v. Penn Credit,
Corp., 6:19-cv-823-Orl-31EJK, 2020 WL 3288016, at *1 (M.D. Fla. June 18, 2020).

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If all three elements are not established, the Court must deny the motion. See, e.g.,
id. (explaining that the district court need consider the other two elements where it
was apparent that the movant had failed to establish just one of them).
Analysis
Defendants request that the Court certify eleven questions for interlocutory
review under 28 U.S.C. § 1292(b). However, Defendants have not provided full §
1292(b) arguments on each of these issues, leaving the Court to speculate and
extrapolate as to their potential arguments for each individual question.
Upon review, the Court finds that the issues presented by Defendants fail to
satisfy the standard under § 1292(b). First, this case – which involves claims of
copyright infringement and breach of contract – is not “exceptional.” Further,
Defendants have not established that: (1) each of these eleven issues involve
controlling questions of pure law; (2) there is substantial ground for difference of
opinion as to the issues; and (3) an immediate appeal would materially advance the
termination of the litigation. In fact, “potential reversal of the Court’s Summary
Judgment Order would not significantly limit the scope of future discovery, motion
practice, and trial activities … nor would it serve to avoid a trial or otherwise
substantially shorten the litigation … To the contrary, it would do just the
opposite.” DeBose v. Univ. of S. Fla. Bd. of Tr., 8:15-cv-2787-EAK-AEP, 2018 WL
8919876, at *7 (M.D. Fla. Mar. 23, 2018) (Kovachevich, J.) (internal citations and
quotations omitted). Accordingly, the motion is denied.

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It is therefore
ORDERED, ADJUDGED, and DECREED:
1. “Defendants’ Motion to Certify Decision for Interlocutory Appeal Pursuant
to 28 U.S.C. § 1292(b) and to Stay Proceedings Pending Appeal” (Doc. 261)
is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 1st day of
July, 2020.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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