Joe Hand Promotions Inc v. Watley et al
Filing
21
ORDER denying 10 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 07/02/2013.(aaf)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
Joe Hand Promotions, Inc.,
*
Plaintiff,
*
vs.
*
CASE NO. 4:12-cv-129 (CDL)
Martha D. Watley and The Dawg *
House,
*
Defendants.
*
O R D E R
Plaintiff Joe Hand Promotions,
Incorporated (“Joe Hand”)
filed this action against Defendants Martha Watley (“Watley”)
and
The
Dawg
unauthorized
Silva
vs.
House
seeking
broadcast of
Okami
(“the
damages
for
their
alleged
Ultimate Fighting Championship 134:
Championship”)
in
violation
of
the
Communications Act of 1934 (“the Communications Act”), 47 U.S.C.
§
605, and the Cable and Television Consumer Protection and
Competition Act of 1992, 47 U.S.C. § 553.
before
the
Court
is
Joe
Hand’s
Motion
for
Presently pending
Partial
Summary
Judgment against Defendants as to their liability and statutory
damages
under
§
605
(ECF No. 10).
The Court finds
that a
genuine factual dispute exists as to Watley’s liability, and
therefore, summary judgment is not appropriate as to the claim
against her.
The Court also finds that Joe Hand has failed to
establish that “The Dawg House” is a legal entity capable of
being sued, and therefore, summary judgment is likewise denied
as to Joe Hand’s claims against “The Dawg House.”
Accordingly,
Joe Hand’s motion is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
DISCUSSION
Joe Hand seeks partial summary judgment as to both Watley
and “The Dawg House.”
The Court addresses Joe Hand’s motion as
to each Defendant in turn.
Joe Hand apparently has no idea whether “The Dawg House” is
a
legal
entity
capable
of
being
sued.
It
alleges
in
its
Complaint that it may be a corporation, a partnership, or a sole
proprietorship.
Compl.
¶¶
9-12,
2
ECF
No.
1.
Apparently,
subsequent discovery provided no clarification as to its legal
status.
Based on the present record, which must be construed in
favor of Defendants, it appears that “The Dawg House” is a trade
name, either for Dee’s Dawgs LLC, which is not a party, or for
Watley.
See Watley Aff. Ex. C, Certificate of Registration, ECF
No.
at
15
9.
In
any
event,
Joe
Hand
certainly
has
not
established that “The Dawg House” is a separate legal entity
capable of being sued, and therefore,
Joe Hand’s
motion for
summary judgment against “The Dawg House” is denied.
The next question is whether Watley is personally liable
for the airing of the broadcast that occurred at the business
known
as
“The
Dawg
House.”
According
to
Watley,
“The
Dawg
House” is owned and operated by Dee’s Dawgs LLC, which Watley
registered with the Secretary of State.
is
paid
SunTrust
for
through
Bank.
a
Watley
Dee’s
is
interest in The Dawg House.
Dawgs
the
All day-to-day business
LLC
only
checking
person
account
with
a
at
financial
The Dawg House liquor license was
in Watley’s name at all relevant times.
2011 License to Sell
Alcoholic Beverages, ECF No. 13-8 at 7.
Joe
Hand
marketing
events.
exhibition
and
is
a
promotional
licensing
company
commercial
in
the
exhibitions
business
of
of
prizefight
Joe Hand owned the exclusive rights to license the
of
the
Championship
to
commercial
Distributorship Agreement ¶ 2, ECF No. 13-4.
3
establishments.
Joe Hand licensed
the Championship at rates based on venue capacity: $900 for 0 to
50 patrons; $1,100 for 51 to 100; and, $1,200 for 101 to 150
patrons.
Championship Rate Card, ECF No. 10-2.
Neither Watley nor The Dawg House ordered the Championship
from
Joe
Hand
authorize
The
Championship.
for
broadcast.
Dawg
House
Joe
or
Hand
did
Watley
not
to
license
broadcast
or
the
Nevertheless, the Championship was broadcast at
The Dawg House when it aired on August 27, 2011.
The Dawg House
used Watley’s residential satellite television account to order
and obtain the Championship to broadcast at the bar.
Statement (Aug. 31, 2011), ECF No. 13-8 at 16.
DIRECTV
Watley contends
that she did not personally order the Championship, and she was
not at The Dawg House on the night of the broadcast.
Watley
alleges that bar manager Frank Camacho, who was responsible for
all daily business at The Dawg House during the relevant time
and
who
is
now
deceased,
ordered
residential satellite account.
Forty-five
patrons
were
the
Championship
on
her
Watley Aff. ¶¶ 8-10, ECF No. 15.
present
when
broadcast on one large television.
the
Championship
was
One of Joe Hand’s auditors
witnessed the unauthorized broadcast.
In its Partial Motion for Summary Judgment, Joe Hand seeks
summary judgment on liability for Defendants’ alleged violation
of 47 U.S.C. § 605, an award of statutory damages to Joe Hand
for
that
violation,
and
a
permanent
4
injunction
to
enjoin
Defendants
from
future
violations
of
the
Communications
Act.
Joe Hand requests that the Court leave the issue of enhanced
damages for trial.
Section 605 of the Communications Act provides as follows:
No person not being authorized by the sender shall
intercept any radio communication and divulge or
publish the existence, contents, substance, purport,
effect, or meaning of such intercepted communication
to any person. No person not being entitled thereto
shall receive or assist in receiving any interstate or
foreign
communication
by
radio
and
use
such
communication (or any information therein contained)
for his own benefit or for the benefit of another not
entitled thereto. No person having received any
intercepted radio communication or having become
acquainted with the contents, substance, purport,
effect, or meaning of such communication (or any part
thereof)
knowing
that
such
communication
was
intercepted, shall divulge or publish the existence,
contents, substance, purport, effect, or meaning of
such communication (or any part thereof) or use such
communication (or any information therein contained)
for his own benefit or for the benefit of another not
entitled thereto.
47 U.S.C. § 605(a).
This section “prohibits the unauthorized
third party reception of satellite transmissions intended for
fee-paying subscribers.”
Showtime/The Movie Channel, Inc. v.
Covered Bridge Condo. Ass’n, 881 F.2d 983, 988 (11th Cir. 1989),
vacated
on
other
grounds
by
895
F.2d
711
(11th
Cir.
1990).
Liability under § 605 “does not require a knowing violation.”
Kingvision Pay Per View, Ltd. v. Williams, 1 F. Supp. 2d 1481,
1484 (S.D. Ga. 1998).
To establish a violation of § 605, a
plaintiff “must establish that (1) the Defendants intercepted
5
the program, (2) Defendants did not pay for the right to receive
the transmission, and (3) Defendants displayed the program to
patrons of their commercial establishment.”
Zuffa, LLC v. Al-
Shaikh, No. 10-00085-KD-C, 2011 WL 1539878, at *4 (S.D. Ala.
Apr. 21, 2011) (citing J & J Sports Prods., Inc. v. Just Fam,
LLC, No. 1:09-cv-03072-JOF, 2010 WL 2640078, at *2 (N.D. Ga.
June 28, 2010)).
The
record
establishes
that
(1)
someone
associated
with
“The Dawg House” intercepted the Championship, (2) that no one
paid for the right to receive the transmission at “The Dawg
House,” and (3) that the Championship was displayed at “The Dawg
House” to 45 of its patrons.
These undisputed facts show that
someone associated with “The Dawg House” likely violated § 605
and may be liable to Plaintiff.
See, e.g., Joe Hand Promotions,
Inc. v. McBroom, No. 5:09-cv-276(CAR), 2009 WL 5031580, at *3
(M.D. Ga. Dec. 15, 2009) (concluding that defendant’s liability
for violation of § 605 was established because the undisputed
evidence
showed
defendants
intercepted
the
satellite
transmission of a boxing match without paying for the right to
receive the transmission and then broadcast the match to the
restaurant
patrons);
(finding
that
displayed
a
the
boxing
Kingvision,
undisputed
match
to
1
F.
facts
its
Supp.
showed
patrons
2d
the
without
at
1484-85
defendant
contractual
authorization from plaintiff and, thus, violated § 605).
6
But,
Joe Hand also has the burden of identifying the violator of the
statute.
As
explained
previously,
Joe
Hand
has
failed
to
establish that “The Dawg House” is liable as a matter of law.
Joe Hand also seeks to hold Watley individually liable.
To
hold Watley vicariously liable in her “individual capacity and
as officer, director, shareholder, and/or principal” of The Dawg
House
(or
whatever
legal
entity
actually
controls
“The
Dawg
House”) under § 605, Joe Hand must show that Watley had a “right
and ability to supervise the violations, and that [s]he had a
strong
financial
interest
in
such
activities.”
Joe
Hand
Promotions, Inc. v. Blanchard, No. 409CV100, 2010 WL 1838067, at
*3 (S.D. Ga. May 3, 2010) (internal quotation marks omitted);
McBroom,
omitted).
2009
WL
5031580,
at
*4
(internal
quotation
marks
Watley was not present at The Dawg House on the day
the Championship was wrongfully intercepted and broadcast to the
bar’s patrons.
Watley Aff. ¶ 7.
Further, she contends that the
bar manager Frank Camacho was in charge of the daily business
and ordered the Championship.
Id. ¶¶ 9-10.
Accordingly, the
Court finds that a genuine factual dispute exists as to whether
Watley had supervisory control over the decision to intercept
and
show
the
Championship
at
“The
Dawg
House,”
judgment is not appropriate as to Watley’s liability.
7
and
summary
CONCLUSION
For
the
foregoing
reasons,
the
Court
denies
Joe
Hand’s
Motion for Partial Summary Judgment (ECF No. 10).
IT IS SO ORDERED, this 2nd day of July, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
8
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