DirectTV, LLC v. Shirah et al

Filing 78

ORDER granting 63 Motion for Summary Judgment; denying 68 Motion to Strike Affidavit re 66 Affidavit; granting 69 Motion to Amend re 67 Objection. The parties shall have thirty days from the date of this order to file briefs regarding the appropriate damages, costs and attorney's fees in this case. Signed by Judge William T. Moore, Jr on 3/24/2015. (loh)

Cc
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

)

DIRECTV, LLC,

P 1: 17

so. wsr. OF

Plaintiff,
V

CASE NO. CV413-110

.

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 Plaintiff's Motion for Summary
Judgment. (Doc. 63.) Defendants have filed a response in
opposition. (Doc. 71.) In addition, Defendants have filed a
Motion to Strike' (Doc. 68) an affidavit offered in support
of Plaintiff's Motion for Summary Judgment. Plaintiff has
filed a response to the Motion to Strike (Doc. 70), to
which Defendants have filed a reply (Doc. 73) . For the
reasons that follow, Defendants' Motion to Strike is
DENIED.

1

Plaintiff's Motion for Summary Judgment is GRANTED.

Defendants have also filed a Motion to Amend (Doc.69)
seeking to correct typos in their prior Motion to Strike.
After careful consideration, Defendants' Motion to Amend is
GRANTED.

GA

The parties shall have

thirty days

from the date of this

order to file briefs regarding the appropriate damages,
costs and attorney's fees regarding Plaintiff's Federal
Communications Act claim. Because Plaintiff's Electronic
Communications Privacy Act claim was not addressed by
Plaintiff's Motion for Summary Judgment, this case will
proceed to trial on that claim.
BACKGROUND

Plaintiff provides interstate broadcast satellite
programming services on a subscription basis to both
residential and commercial customers. 2 (Doc. 1 at 2.) On or
about September 27, 2012, Defendants were exhibiting
Plaintiff's programming at their commercial establishment—
The Islander—located at 221 Johnny Mercer Blvd., Savannah,
Georgia. (Doc. 63, Attach. 10 at 191 2, 8.) Defendants admit
that their establishment was open to the public for
2

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
the Court only addresses Plaintiff's motion, all facts are
construed in the light most favorable to Defendants.
However, Defendants' statement of material facts fail to
respond to each individual statement from Plaintiff's
statement of material facts. Accordingly, the uncontested
facts contained in Plaintiff's statement of material facts
are deemed admitted. See S.D.L.R. 56.1 ("All material facts
set forth in the statement [of material facts] required to
be served by the moving party will be deemed to be admitted
unless controverted by a statement served by the opposing
party.")
2

business on the day in question. (Id. at ¶ 10.) The public
display of Plaintiff's programming at the establishment was
witnessed by Plaintiff's agent, Jeffrey Dail. (Id. at
¶I 11-12.) The programming was being delivered to the
establishment pursuant to an account established in 2002 by
Defendants' former agent, Gale Woodard. (Doc. 71 at 3.)
The initial sale of Plaintiff's programming service to
Defendants and the installation of the equipment necessary
to receive the programming was carried out by third-party
retailer Circuit City. (Doc. 71 at 3-4.) However, neither
party has produced any evidence documenting the specifics
of that initial transaction. 3 (Doc. 71 at 4.) Defendants
maintain that Ms. Woodard opened a "commercial account" for
the programming service. (Doc. 71, Attach. 1 at 3.)
However, Plaintiff states that no such commercial account
exists. (Doc. 66 ¶ 13.) Rather, Plaintiff's records and
billing system list a residential account registered to
Defendant Shirah individually at his home address. (Id.
¶ 14.) Defendants state that the designation of the account

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: //www. nydailynews .com/news/money/history-circuit-cityarticle-1.368853 (last visited Mar. 16, 2015). In addition,
Defendants' agent Ms. Woodard has since passed away. (Doc.
71 at 5.)
3

as residential result of a clerical error by Plaintiff.
(Doc. 71 at 5.)
Neither party has presented a signed written contract
governing Defendants' account. Rather, Plaintiff states
that by accepting Plaintiff's services, its subscribers are
deemed to have accepted its terms of service. (Doc. 71 at
4.) The customer agreement Plaintiff argues pertains to
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. 71 at 3.)
Plaintiff discontinued service to Defendants on
November 13, 2012, following its discovery of Defendants'
public display of its programming in their commercial
establishment. (Doc. 66 at 10.) On April 30, 2013,
Plaintiff filed this action alleging conversion, violations
of the Federal Communications Act ("FCA") and the
Electronic Communications Privacy Act ("ECPA"), and seeking
punitive damages and injunctive relief. (Doc. 1.)
Plaintiff's claim for civil conversion was dismissed by
order of this Court on March 12, 2014. (Doc. 61.) On
September 22, 2014, the Court denied Defendants' Motion for

4

Summary Judgment with regard to Plaintiff's FCA and ECPA
claims. (Doc. 77.)
Plaintiff has now moved for summary judgment, arguing
that no material issue of fact exists regarding Defendants'
liability under the FCA. (Doc. 63.) Plaintiff has not moved
for summary judgment with regard to its claim under the
ECPA. In support of its motion, Plaintiff has filed an
affidavit by its vice-president of Risk Management, Kent
Mader. (Doc. 66.) Defendants have filed a response in
opposition. (Doc. 71.) In addition, Defendants have filed a
Motion to Strike Mr. Nader's affidavit (Doc. 68), to which
Plaintiff has filed a response (Doc. 70) . Finally,
Defendants have also filed a reply in support of their
Motion to Strike. (Doc. 73.)
ANALYSIS

I.

THE MOTION TO STRIKE
As an initial matter, the Court addresses Defendants'

Motion to Strike

.

4

(Doc. 68.) In their motion, Defendants

include a myriad of arguments why Mr. Nader's affidavit
should not be considered by the Court, none of which have
merit. The Court will not waste time dealing with each of

Defendants have also filed an objection to the affidavit.
(Doc. 67.) Defendants repeat their objections in their
Notion to Strike. (Doc. 68, Attach. 1.) Accordingly, the
Court's analysis applies equally to both filings.
5

Defendants'
paragraphs,

individual

objections

to

the

various

but will instead respond generally to

Defendants' concerns.
First, Defendants make the broad assertion that the
affidavit should be struck entirely because it is not made
upon personal knowledge of the affiant, fails to set out
facts that would be admissible in evidence, and fails to
demonstrate the affiant's competency to testify on the
matters stated. 5 (Doc. 68 at 1.) However, it appears plainly
evident that Mr. Mader's testimony is based on his personal
knowledge of Plaintiff's business operations and his review
of Plaintiff's internal account documents. In addition, the
Court finds Mr. Mader is competent to testify concerning
the content of these documents given Mr. Mader's position
as the Plaintiff's vice-president of risk management.
Lastly, the Court finds no reason to question the
admissibility of the evidence underlying Mr. Mader's
Defendants also argue that the documents attached to Mr.
Mader's affidavit should be struck because they are not
sworn, certified copies as required by Fed. R. Civ. P.
56(e). However, such a requirement is no longer necessary.
See Fed. R. Civ. P. 56 advisory committee notes to
subdivision (c) ('The requirement that a sworn or certified
copy of a paper referred to in an affidavit or declaration
be attached to the affidavit or declaration is omitted as
unnecessary given the requirement in subdivision (c) (1) (A)
that a statement or dispute of fact be supported by
materials in the record.") . The documents attached to the
affidavit are part of the record in this case. Accordingly,
this issue is moot.

affidavit. Defendants' arguments concerning hearsay, as
discussed below, are without merit and have no impact on
the admissibility of Mr. Nader's statements.
Next, Defendants object specifically to nine of the
sixteen paragraphs for lack of relevancy. (Doc. 68, Attach.
1 at 2-4.) The paragraphs in question provide a general
overview of Plaintiff's business and internal procedures.
The Court agrees that Mr. Nader's statements are of little
interest in this case, although they do appear to give some
foundational context to Mr. Nader's more pertinent
testimony concerning facts relevant to this action. In any
case, the Court finds striking these statements, even if
they are of minimal probative value, would be a waste of
time. See, e.g., Kirk v. Met. Life. Ins. Co., 331 F. Supp.
1361, 1362 (M. D. Fla. 2003) ("Motions to strike on the
grounds of insufficiency, immateriality, irrelevancy and
redundancy are not favored, often being considered 'time
wasters,' and will usually be denied unless the allegations
have no possible relation to the controversy and may cause
prejudice to one of the parties." (quoting Poston v. Am.
President Lines, Ltd., 452 F. Supp. 568, 570 (S.D. Fla.
1978))) . Due to their innocuous nature, the Court will not
bother to strike these paragraphs for lack of relevancy.

7

Defendants also object to some statements by Mr. Nader
on grounds that they contain inadmissible hearsay. (Doc.
68, Attach. 1 at 2-4.) Hearsay is a statement, other than
one made by the declarant, offered in evidence to prove the
truth of the matter asserted. Fed. R. Evid. 801(c)
Contrary to Defendants' arguments, only one of Mr. Nader's
statements appears to implicate the statement of another
person in any way. In paragraph 12 of his affidavit, Mr.
Nader states that Plaintiff's agent, Jeffrey Dail, observed
Plaintiff's programming being displayed at Defendants'
commercial establishment. (Doc. 66 at 6.) While this
paragraph is based on the statements of Mr. Dail, rendering
it hearsay, the Court notes that Mr. Dail's own affidavit
and statements on this incident are already part of the
record in this case .

6

(Doc. 66 at 12-13.) As a result, the

Court sees no reason to strike this statement. See Ross v.
Cop. of Mercer Univ., 506 F. Supp. 2d 1325, 1335 (M.D. Ga.
2007) (finding hearsay statements admissible because
information contained elsewhere throughout record) . None of
the other statements in question include statements by

6

As further confirmation that Defendants' efforts to strike
the statement is a waste of time, the Court notes that
Defendants do not even contest the fact that they exhibited
Plaintiff's programming. (Doc. 63, Attach. 10 at ¶ 8.)
[3

anyone other than Mr. Mader. Accordingly, there are no
hearsay issues in this case.
Finally, both parties accuse the other of proceeding
in bad faith. Defendants argue that Plaintiff submitted the
affidavit in bad faith or solely for delay in violation of
Fed. R. Civ. P. 56(h), entitling Defendants to reasonable
expenses incurred as a result of responding to the
affidavit. (Doc. 68 at 1.) In response, Plaintiff urges the
Court to award it attorney's fees pursuant to 28 U.S.C.
§ 1927, arguing that Defendants' motion is frivolous and
has caused "unreasonable and vexatious multiplication of
the proceedings." (Doc. 70 at 6.) The Court finds both
arguments without merit. While Defendants' Motion to Strike
must be denied, the Court declines to award any party
attorney's fees in connection with either the motion or the
underlying affidavit.
II. SUMMARY JUDGMENT 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
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. DeLong 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)

10

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 587-88.
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)
III. PRECLUSIVE DEFENSES
Defendants make two arguments unrelated to the merits
of Plaintiff's Motion for Summary Judgment that they
nevertheless believe should be dispositive here. First,
Defendants argue that because Circuit City installed the
equipment at Defendants' commercial location over ten years
ago, Plaintiff should have known of the location of the
equipment long before this suit was brought. (Doc. 71 at
18.) Because this case was not brought within two year S7

There is some argument to be made that Georgia's mirror to
the FCA is substantially similar to the federal law and
11

from the date of that installation, Defendants argue that
Plaintiff's claims should be barred by the statute of
limitations. Id.
The Court disagrees. The statute of limitations for an
FCA claim begins to accrue upon the date a plaintiff
discovered or should have discovered the violation for
which it brings suit. See In re Cases Filed by DirectTv,
Inc., 344 F. Supp. 2d 647, 662 (D. Ariz. 2004). The
discrete violation upon which Plaintiff bases its suit
occurred on September 27, 2012. (Doc. 63, Attach. 10 at
9191 2, 8.) This suit was filed on April 30, 2013. (Doc. 1.)
Accordingly, Plaintiff brought its claims well within the
statute of limitations and its summary judgment arguments
remain viable.
Citing the same reasoning, Defendants also contend
that any prospective equitable relief the Court might award
is barred by the doctrine of laches. (Doc. 71 at 19.) As
Plaintiff appears to seek only damages, having already
discontinued service to Defendants, the issue appears moot.
In any case, to the extent that equitable relief might
somehow be appropriate in this case, the Court finds that
thus four-year statute of limitations should apply in this
case. See, e.g., DirecTV, Inc. v. Wright, 350 F. Supp. 2d
1048, 1055 (N.D. Ga. 2004) . However, because the Court
finds that Plaintiff's claims would not be barred under
either standard, the issue is moot.
12

such claims would not be precluded for the same reasons as
stated above. Plaintiff bases its suit on a single
violation occurring less than one year before this case was
filed, and thus no unreasonable delay or prejudice to
Defendants has occurred.
IV. PLAINTIFF'S FCA CLAIM
As stated earlier, Plaintiff only moves for summary
judgment with regard to its FCA claim. 8 Specifically,
Plaintiff alleges that Defendants violated 47 U.S.C. § 605
which states that
[n]o 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
8

The Court stated its doubts regarding Plaintiff's ECPA
claim in its order denying Defendants' earlier Motion for
Summary Judgment. (Doc. 77 at 8 n. 4.) Specifically, the
Court noted that an ECPA claim under 18 U.S.C. § 2511
carries an intent requirement unlike violations of 47
U.S.C. § 605(a). However, Plaintiff has not moved for
summary judgment regarding its ECPA claim, and thus the
Court will not revisit this issue here.
13

thereof) or use such communication (or any
information therein contained) for his own
benefit or for the benefit of another not
entitled thereto.
The Eleventh Circuit has held that a defendant violates
§ 605(a) when he or she 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
misunderstanding or good faith. Kingvision Pay Per View,
Ltd. V. Williams, 1 F. Supp. 2d 1481, 1484 (S.D. Ga. 1998).
Despite Defendants' contentions to the contrary, the
issue in this case is actually quite simple. All parties
agree that Plaintiff's programming was displayed within
Defendants' commercial establishment. (Doc. 63, Attach. 1
at 14-15.) Because Defendants admit to displaying the
programming, the only question before the Court is whether
they were authorized to do so. While Defendants maintain
they held a valid commercial account for the programming,
Plaintiff states than no such commercial account exists and
the programming was being delivered pursuant to a
residential account registered to Defendant Shirah.
Defendants' primary argument on this score is that
Plaintiff has not produced sufficient evidence to establish

14

that the account was in fact residential, insisting that
Plaintiff's documentation and the affidavits of Mr. Dail
and Mr. Mader cannot support summary judgment in
Plaintiff's favor. 9 (Doc. 71 at 11-13.) Defendants admit
that Plaintiff's internal records, as well as its billing
ledger, indicate the account was residential. (Doc. 71 at
11.) In addition, it appears that Defendants were being
charged on the date in question—as well as for the ten
years prior—the residential rate for programming. (Doc. 66
at 49-59.) In fact, every document addressing the issue in
the evidentiary record indicates that the account was for
residential purposes only.' ° While Defendants dismiss these
notations as mistakes (Doc. 71 at 5), there is no evidence
in the record to support this assertion. Accordingly, the
Court finds this information more than enough to conclude
Defendants also repeat the argument from their earlier
motion for summary judgment that Plaintiff has not
established Defendants ever signed a contract with
Plaintiff. (Doc. 71 at 9-13.) As stated in this Court's
previous order, however, it is long-settled Georgia law
that the lack of a signature is not fatal to a contract's
enforceability. See, e.g., Robinson v. Belcher, 37 Ga. App.
412, 412, 140 S.E. 412, 412 (1927) (signature may, but is
not required, to prove existence of contract) . Plaintiff
has provided more than sufficient evidence to establish
that a contract existed between the parties. Accordingly,
the Court finds Defendants' argument on this matter without
merit.
10
In their response, Defendants repeat their argument that
the evidence should be dismissed as hearsay. However, the
Court has already concluded that the evidence is
permissible. See supra Analysis I.
15

that the account in question was residential and that
Plaintiff is liable under § 605 (a) . The burden thus shifts
to Defendants to show an issue of an issue of material
fact. Clark, 929 F.2d at 608.
In response to Plaintiff's evidence indicating the
account was residential, Defendants rely solely on
Defendant Shirah's testimony that he initially instructed
his assistant to open a commercial account over ten years
ago. (Doc. 71 at 3.) Even taking Defendant Shirah's
testimony as true, the Court fails to see how this
assertion creates a genuine issue of material fact. While
Defendants may very well have intended the account to be
commerical, Defendant Shirah's instructions to his
assistant indicate at best a good faith belief that this
was the case. However, a lack of willfulness or knowledge
by a defendant is appropriately evaluated only in the
context of damages, and is irrelevant for purposes of
determining liability. Joe Hand Promotions, Inc. v. Kebede,
2011 WL 294503, at *3 (N.D. Ga. Jan. 26, 2011)
(unpublished); see also 47 U.S.C. § 605(e) (3) (C) (iii) ("In
any case where the court finds that the violator was not
aware and had no reason to believe that his acts
constituted a violation of this section, the court in its

16

discretion may reduce the award of damages to a sum of not
less than $250.")
Regardless of their initial intent, Defendants have
offered no compelling argument that there is a genuine
issue of material fact regarding the nature of their
account. Defendants' repeated assertion that they opened a
commercial account is nothing more than wishful conjecture.
The proposition that the account was truly commercial, but
that Plaintiff repeatedly mischaracterized its residential
nature in all of its documents and improperly billed
Defendants for over ten years simply defies belief. It is
certainly plausible that Defendants had a good faith belief
the account was commercial, but that alone does not create
a genuine issue of material fact. While the Court may
certainly consider the reasonableness of Defendants' belief
when determining damages, it has no relevance in
establishing liability. Accordingly, summary judgment on
Plaintiff's FCA claim is proper.
CONCLUSION

For the reasons stated above, Defendants' Motion to
Strike is DENIED.
is

GRANTED.

Plaintiff's Motion for Summary Judgment

The parties shall have

thirty days

from the

date of this order to file briefs regarding the appropriate

17

damages,

costs

and attorney's fees in this case. 1 ' Because

Plaintiff's ECPA claim was not addressed by Plaintiff's
Motion for Summary Judgment, this case will proceed to
trial on that claim.
SO ORDERED this 044.day of March 2015.

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

11

As stated earlier, the Court may take Defendants' intent
into consideration when determining damages. In its motion,
Plaintiff makes a series of conclusory statements that
Defendant committed the offense "willfully and knowingly"
and that the act "was intentional and done for commercial
gain, and required scheming and overt acts, justifying the
imposition of the maximum statutory damages under the
[FCA]." Doc. 63, Attach. 1 at 15-16.) However, Plaintiff
has yet to establish that Defendant acted willfully or in
bad faith. In any case, the Court will allow the parties to
brief their positions regarding the appropriate damages and
need not address this matter at the present time.