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

Filing 401

ORDER. The report and recommendation (Doc. 394) is affirmed and adopted and incorporated by reference into this Order for all purposes, including appellate review. "Defendants' Motion to Alter or Amend the Judgment" (Doc. 377) is denied. See Order for details. Signed by Judge Thomas P. Barber on 1/4/2024. (EKB)

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

Case No. 8:16-cv-2549-TPB-CPT

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

/

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the report and recommendation of United
States Magistrate Judge Christopher P. Tuite entered on August 31, 2023. (Doc. 394).
Judge Tuite recommended denying Defendants Gaby Fraifer, Tele-Center, Inc. (TCI),
and Planet Telecom, Inc.’s (PTI) motion pursuant to Federal Rules of Civil Procedure
52 and 59 to alter or amend the judgment entered against them on Plaintiff DISH
Network L.L.C.’s (DISH) copyright claim. (Doc. 377). Defendants filed objections to
the report and recommendation (Doc. 399) and Plaintiff filed a response (Doc. 400).
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 199
(4th Cir. 1983); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). A district
court must “make a de novo determination of those portions of the [report and

Page 1 of 3

recommendation] to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). When no
objection is filed, a court reviews the report and recommendation for clear error.
Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006); Nettles v. Wainwright,
677 F.2d 404, 409 (5th Cir. 1982).
Upon due consideration of the record, including Judge Tuite’s report and
recommendation, the Court adopts the report and recommendation in its entirety.
The Court agrees with Judge Tuite’s well-reasoned factual findings and conclusions,
and the objections do not provide any basis for overruling the report and
recommendation. Defendants seek yet again to reverse this Court’s determination of
DISH’s copyright ownership – a very technical and factually detailed issue decided
nearly four years ago on summary judgment, which the Court declined to revisit when
denying Defendants’ last post-trial motion to reconsider. Defendants’ objection also
essentially asks the Court to reconsider evidence provided by DISH’s expert witness,
but Defendants do nothing more than reargue their previously filed, and denied,
Daubert motion. As previously noted, this Court found Defendants’ trial testimony
lacked credibility and was, at best, misleading. (Doc. 337). In their objections, filed by
counsel retained after Defendants lost at trial, Defendants propose entirely new
theories as to why their infringement was not willful – theories that are inconsistent
with Defendants’ evidence at trial.
Consequently, Defendants Gaby Fraifer, Tele-Center, Inc. (TCI), and Planet
Telecom, Inc.’s (PTI) motion pursuant to Federal Rules of Civil Procedure 52 and 59 to
alter or amend the judgment entered against them on Plaintiff DISH Network L.L.C.’s
(DISH) copyright claim (Doc. 377) is denied.
Page 2 of 3

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Judge Tuite’s report and recommendation (Doc. 394) is AFFIRMED and
ADOPTED and INCORPORATED BY REFERENCE into this Order for all
purposes, including appellate review.

(2)

“Defendants’ Motion to Alter or Amend the Judgment” (Doc. 377) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 4th day of

January, 2024.

TOM BARBER
UNITED STATES DISTRICT JUDGE

Page 3 of 3