DirectTV, LLC v. Shirah et al

Filing 77

ORDER denying 43 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 9/22/14. (bcw)

U.S.c
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEOR1*S 7 22 Ui
SAVANNAH DIVISION

)

DIRECTV, LLC,

so. DST.

3:C

UF GA.

Plaintiff,
CASE NO. CV413-110

V.

HERMAN R. SHIRAH, JR., a/k/a
Rudy Shirah, individually,
and as an officer, director,
shareholder and/or principal
of Panacea of the Islands,
Inc., d/b/a The Islander; and
PANACEA OF THE ISLANDS, INC.,
d/b/a The Islander,
Defendants.

ORDER

Before the Court is Defendants' Motion for Summary
Judgment. (Doc. 43.) Plaintiff has filed a response in
opposition (Doc. 49), to which Defendants have filed a
reply (Doc. 53). For the reasons that follow, Defendants'
Motion for Summary Judgment is DENIED.
BACKGROUND

Plaintiff provides interstate broadcast satellite
programming services on a subscription basis to both
residential and commercial customers.' (Doc. 1 at 2.) On

1

For the purposes of this motion for summary judgment, the
Court construes the facts in the light most favorable to
the nonmoving party.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 577-78 (1986) .
Because

or about September 27, 2012, Plaintiff's agent discovered
that Defendants were exhibiting Plaintiff's programming at
their commercial establishment—The Islander—located at 221
Johnny Mercer Blvd., Savannah, Georgia. (Doc. 49 at 3.)
Defendants' admit that their establishment was open to the
public for business on the day in question. (Doc. 43 at 56.) The programming was being delivered to the
establishment pursuant to an account established in 2002 by
Defendants' former agent, Gale Woodard. (Doc. 49 at 3.)
While Defendants claim that Ms. Woodard opened a
"commercial account" for the service, Plaintiff's account
records indicate that the account was residential in
nature. (Doc. 49, Attach. 1 ¶ 2.) Plaintiff's records and
billing system also list the account as registered to
Defendant Shirah individually at his home address.
49 at 6.)

(Doc.

Plaintiff's records further indicate that it

shipped the equipment customers use to receive its
programming to Defendant Shirah at this same address.
(Doc. 49, Attach. 1 ¶ 8.) The actual installation of
equipment was carried out by third-party retailer Circuit

the Court only addresses Defendants' motion, all facts are
construed in the light most favorable to Plaintiff.
2

City, although no documentation has been presented as to
where installation took place .2 (Doc. 49 at 4.)
Neither party has presented a signed written contract
governing Defendants' account. Rather, Plaintiff states
that its business practice is to send its subscribers
"customer agreements" on a yearly basis that outline the
terms of the parties' agreements. (Doc. 49 at 5.) By
accepting Plaintiff's services, subscribers are deemed to
accept the terms contained within these customer
agreements. (Id.) The customer agreement governing
Defendants' account describes it as residential and states
that Defendants may not exhibit the programming "in areas
open to the public or in commercial establishments." (Doc.
49, Ex. C ¶ 1(i) .) Defendants dispute ever receiving the
customer agreement. (Doc. 53 at 10.)
Plaintiff discontinued service to Defendants on
November 13, 2012, following its discovery of Defendants'
public display of its programming in their commercial
establishment. (Id. at 5.) On April 30, 2013, Plaintiff
filed this action alleging conversion, violations of the
Federal Communications Act ("FCA") and the Electronic
2

On January 15, 2009, Circuit City Stores, Inc. announced
its liquidation in bankruptcy, ceasing operations entirely
on March 8, 2009. History of Circuit City, http://
http: //www.nydailynews.com/news/money/histOry-circuit-cityarticle-l.368853 (last visited Sep. 2, 2014)
3

Communications Privacy Act ("ECPA"), and seeking punitive
damages and injunctive relief. (Doc. 1.) On November 13,
2013, Defendants moved for summary judgment arguing that
Plaintiff is unable to show a material issue of fact with
regard to their potential liability because Plaintiff
cannot prove the account was for residential service only.
(Doc. 43) Prior to addressing Defendants' motion, this
Court dismissed count three of Plaintiff's complaint
alleging civil conversion, finding that Plaintiff had
failed to state a claim upon which relief could be granted.
(Doc. 61.) Accordingly, only Plaintiff's claims based on
violations of the FCA and ECPA are at issue for purposes of
Defendants' motion for summary judgment.
ANALYSIS

I.

STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56(a),

"[a] party may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on
which summary judgment is sought." Such a motion must 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." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to assess
the proof in order to see whether there is a genuine need

IR

for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56
advisory committee notes)
Summary judgment is appropriate when the nonmovant
"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).

The substantive law governing the action

determines whether an element is essential. ]JeLong Equip.
Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th
Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion and
identifying those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence
of a genuine issue of material fact.
Celotex, 477 U.S. at 323.

The burden then shifts to the

nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)

5

The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 58788. However, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the
material facts." Id. at 586. A mere "scintilla" of
evidence, or simply conclusory allegations, will not
suffice.

See, e.g., Tidwell v. Carter Prods., 135 F.3d

1422, 1425 (11th Cir. 1998) .

Nevertheless, where a

reasonable fact finder may "draw more than one inference
from the facts, and that inference creates a genuine issue
of material fact, then the Court should refuse to grant
summary judgment." Barfield v. Brierton, 883 F.2d 923, 933
(11th Cir. 1989)
II. DEFENDANTS' ACCOUNT STATUS AND POTENTIAL LIABILITY
While Defendants admit to displaying the programming
in their restaurant, they argue that Plaintiff has not
produced sufficient evidence to establish that they held a
residential account as opposed to a commercial account. 3

While it is not entirely clear, Defendants also at times
appear to argue that no contract exists at all between the
parties. While Defendants first claim that their agent Ms.
Woodard opened a commercial account with Plaintiff (Doc. 43
at 3), they later state that Plaintiff has failed to show
that Defendants consented to an account of any type (Doc.
53 at 2). However, Defendants admit to having paid for and
received satellite service for over ten years. (Id. at 1.)

Specifically, Defendants contend that Plaintiff's inability
to produce signed documentation establishing Defendants'
acceptance of a residential account should prove fatal to
its claims. (Doc. 43 at 4.) According to Defendants, this
lack of evidence precludes any liability they may have to
Plaintiff. (Id. at 1.)
However, the Court finds Defendants' argument without
merit. Under Georgia law, a party's conduct may bind him
to the terms of a contract, even if he does not sign the
agreement.

See Comvest, L.L.C. v. Corp. Secs. Grp. Inc.,

234 Ga. App. 277, 280, 507 S.E.2d 21, 24-25 (1998) .

Here,

Defendants admit to using and paying for satellite service
for ten years. (Doc. 43 at 5.) Accordingly, the fact that
Plaintiff has not put forward a signed contract for
residential service is not necessarily determinative in
this case. Rather, the Court will review all the evidence
put forward by Plaintiff to determine whether there exists
a genuine issue of material fact regarding Defendants'
account status.
Because

Defendants

admit

to

displaying

the

programming, the only question before the Court is whether

Accordingly, the Court finds the question—to the extent
that there is one—of whether any contract exists not an
issue that may be resolved at summary judgment.
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they were not authorized to do so. 4 In support of their
position that Defendants were authorized only to exhibit
the programming in a residential setting, Plaintiff points
to its internal records indicating the account as
residential, previous bills that illustrate Defendants were
charged only the residential rate, and copies of its
customer agreements that state the account is for
residential purposes only. Defendants produce a myriad of
arguments attempting to portray the evidence as either
invalid or otherwise. For the following reasons, however,
the Court finds Defendants' arguments unpersuasive.

As stated earlier, Plaintiff has alleged violations of
both the FCA, 47 U.S.C. § 605(a) and the ECPA, 18 U.S.C.
Defendants have not identified specifically
§ 2511(1) (a) .
against which claims it seeks summary judgment.
The
Eleventh Circuit has held that a defendant violates
§ 605(a) when it pays only the residential fee for
satellite programming yet displays it in a commercial
establishment. J & J Sports Prods., Inc. v. Taqueria
Jalisco, Inc., 491 Fed. App'x 962, 962 (11th Cir. 2012)
Such is the case regardless of a defendant's willfulness or
good faith.
Kingvision Pay Per View, Ltd. V. Williams, 1
F. Supp. 2d 1481, 1484 (S.D. Ga. 1998) .
It is less clear,
however, whether such a display would qualify as an
"interception" for purposes of § 2511 should Defendants
prove that the alleged wrongful commercial display was
unintentional. See, e.g., DirecTV, LLC v. Perugini, 2014
WL 2812123 at *5 (M.D. Penn. June 20, 2014) (unpublished)
(inadvertent use of residential signal for commercial
purposes insufficient to maintain civil action under §
2511) . Because Defendant brings no argument on this
matter, however, the Court need not address this issue at
the present time.

[;]

Defendants first argue that the Court should discount
Plaintiff's internal records because they are maintained on
a computer and thus "can be altered at any time by
[Plaintiff], which has sole possession and control over
this data." (Doc. 43 at 10.) Defendants do not contend,
however, that the data was actually altered in any way, but
rather that the possibility it could be altered illustrates
a lack of trustworthiness. (Doc. 53 at 9.) The Court
finds this a bizarre argument, and Defendants have
unsurprisingly failed to offer any legal support for their
theory. Much of the discovery process, upon which our
legal system relies, would be a futile waste of time if
courts were to dismiss as untrustworthy all evidence
initially held in another party's sole possession. Absent
some evidence that the records actually have been
fraudulently altered, the Court can discern no reason to
disregard their potential probative value. Any
determination as to the credibility of the evidence, and
the weight it should be given, is ultimately left for the
jury. See United States v. Billue, 994 F.2d 1562, 1565
(11th Cir. 1993)
Defendants' billing statements from Plaintiff also
describe the account as residential and Defendants were
charged the residential rate for the duration of their

service.

(Doc. 49 at 8.) However, Defendants dismiss this

billing notation as a mistake on Plaintiff's part.

(Doc.

53 at 9.) However, there is no evidence before the Court
that the description actually was in error, and Plaintiff
maintains the statement is accurate. For the same reasons
that the Court will not disregard Plaintiff's internal
records, it will also not discount the billing statements
as evidence that Defendants' account was residential.
Defendants' mere belief that the billing statements are
mistaken is insufficient to grant summary judgment.
Defendants next argue that Plaintiff has failed to
show that Defendants ever received or observed the customer
agreements whose terms describe the account as residential.
(Doc. 53 at 7-8.) Plaintiff, however, argues that it has
continually sent Defendants new copies of the customer
agreement each year for ten years, as well as provided the
terms clearly on its website. (Doc. 49 at 3.) In response
to Plaintiff's statement that it mailed these customer
agreements to Defendants, Defendants simply state that they
never received or observed them. (Doc. 53 at 10.) Such a
statement, however, is insufficient to prevail at summary
judgment. See Barnett v. Okeechobee Hosp., 283 F.3d 1232,
1239 (11th Cir. 2002) ("[T]he common law has long
recognized a rebuttable presumption that an item properly

10

mailed was received by the addressee.") . Accordingly, when
viewing the evidence in the light most favorable to
Plaintiff, the Court cannot conclude as a matter of law
that Defendants did not agree to the terms in question.
Defendants have offered no compelling argument why the
Court should not consider any of the evidence produced by
Plaintiff. Further, the Court does not find that the
evidence presented amounts to a mere "scintilla" as
Defendants describe it. (Doc. 43 at 13.) To the contrary,
the Court finds the evidence creates a genuine question of
material fact with regard to Defendants' account status and
consequent potential liability. Accordingly, Defendants'
motion must be denied.
CONCLUSION

For the foregoing reasons, Defendants' Motion for
Summary Judgment (Doc. 43)

is DENIED.

Plaintiff's claims

may proceed to trial.
SO ORDERED this

2A2
7

day of September 2014.

WILLIAM T. MOORE, JR
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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