J & J Sports Productions, Inc. v. Alcantra et al
Filing
31
ORDER GRANTING DEFENDANT ANACLETO S. ALCANTARA JR.'S MOTION FOR SUMMARY JUDGMENT 16 . Signed by JUDGE LESLIE E. KOBAYASHI on 04/25/2014. -- On the basis of the foregoing, A. Alcantara's Motion for Summary Judgment, filed January 24, 2014, is HEREBY GRANTED.Count III is DISMISSED WITH PREJUDICE as to C. Alcantara and A. Alcantara, and this Court GRANTS summary judgment in favor of A. Alcantara as to Count I and Count II. There being no remaining claims against A. Alcantara, this Court DIRECTS the Clerk's Office to terminate him as a party. J & J's claims against C. Alcantara in Count I and Count II remain. Insofar as J & J has obtained an entry of default against C. Alcantara, this Cour t DIRECTS J & J to file its motion for default judgment by May 13, 2014. J & J's motion for default judgment must specify whether J & J seeks damages against C. Alcantara under Count I or Count II. This Court cautions J & J that, if it fails to file its motion for default judgment by May 13, 2014, this Court will issue an order to show cause why J & J's claims against C. Alcantara should not be dismissed. (eps)CERTIFICATE OF SERVICE Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
J & J SPORTS PRODUCTIONS,
INC.,
)
)
)
)
Plaintiff,
)
vs.
)
)
ANACLETO S. ALCANTARA, JR.,
)
and CARMELITA ALCANTARA d/b/a )
FILIPINO EXPRESS RESTAURANT, )
)
)
Defendants.
_____________________________ )
CIVIL NO. 13-00220 LEK-RLP
ORDER GRANTING DEFENDANT ANACLETO S. ALCANTARA JR.’S
MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Anacleto S. Alcantara,
Jr.’s (“A. Alcantara”) Motion for Summary Judgment (“Motion”),
filed on January 24, 2014.
[Dkt. no. 16.]
Plaintiff J & J
Sports Productions, Inc. (“J & J”) filed its memorandum in
opposition to the Motion on February 17, 2014, and A. Alcantara
filed his reply on February 24, 2014.
[Dkt. nos. 19, 22.]
matter came on for hearing on April 3, 2014.
This
Appearing on behalf
of A. Alcantara was Kevin Herring, Esq., and appearing on behalf
of J & J was Dan Ikehara, Esq.
After careful consideration of
the Motion, supporting and opposing memoranda, and the arguments
of counsel, A. Alcantara’s Motion is HEREBY GRANTED for the
reasons set forth below.
BACKGROUND
J & J filed its Complaint on May 6, 2013, and its First
Amended Complaint on September 9, 2013.
[Dkt. nos. 1, 7.]
The
defendants in this action are A. Alcantara and Carmelita
Alcantara (“C. Alcantara”), collectively doing business as
Filipino Express Restaurant (“Filipino Express”).1
C. Alcantara
was served with the Summons on October 15, 2013, [Proof of
Service, filed 10/16/13 (dkt. no. 15),] but has not entered an
appearance in this action.
J & J obtained an Entry of Default
against C. Alcantara on March 12, 2014.
As of the date of this
order, J & J has not moved for default judgment against
C. Alcantara.
J & J filed this action pursuant to the Communications
Act of 1934, as amended, 47 U.S.C. § 605, et seq. (“the
Communications Act”), and the Cable Television Consumer
Protection and Competition Act of 1992, as amended, 47 U.S.C.
§ 553, et seq. (“the Cable Act”).
¶ 1.]
[First Amended Complaint at
The First Amended Complaint alleges that J & J was the
exclusive nationwide television distributor of the May 7, 2011
Manny Pacquiao v. Shane Mosley World Boxing Organization
Welterweight Championship Fight Program, including “all under-
1
This Court will refer to A. Alcantara and C. Alcantara
collectively as “Defendants.” C. Alcantara is A. Alcantara’s
mother. [Motion, Decl. of Anacleto Alcantara, Jr. (“A. Alcantara
Decl.”) at ¶ 6.]
2
card bouts and fight commentary encompassed in the television
broadcast of the event” (“the Program”).
[Id. at ¶ 8.]
The
First Amended Complaint also alleges that Defendants violated
J & J’s rights by exhibiting the Program, at the time of the
Program’s transmission, at 94-366 Pupupani Street, Waipahu,
Hawai`i 96797, without a sub-licensing agreement with, or other
consent from, J & J.
[Id. at ¶ 11.]
The First Amended Complaint
alleges that Defendants “are or were owners, and/or operators,
and/or licensees, and/or permitees, and/or persons in charge,
and/or individuals with dominion, control, oversight and
management of the commercial establishment and doing business as
FILIPINO EXPRESS RESTAURANT located at 94-366 Pupupani Street,
Waipahu, Hawaii 96797.”
[Id. at ¶ 6 (emphasis in original).]
The First Amended Complaint asserts the following
claims: violation of the Cable Act (“Count I”); violation of the
Communications Act (“Count II”); and a state law conversion claim
(“Count III”).
The First Amended Complaint prays for the
following relief: as to Counts I and II - $10,000.00 in statutory
damages and $100,000.00 in enhanced damages; as to Count III compensatory and punitive damages; and as to all counts reasonable attorneys’ fees, costs, and any other appropriate
relief.
The crux of A. Alcantara’s Motion is that he is
entitled to summary judgment on all claims against him because he
3
does not own, have a financial interest in, manage, or have
supervisory control over Filipino Express, and because he was not
in Hawai`i on or around the day of the alleged illegal
interception and broadcast of the Program.
[Motion at 2.]
DISCUSSION
I.
J & J’s Supplemental Affidavit
On February 26, 2014, two days after A. Alcantara filed
his Reply, J & J filed an affidavit by Joseph Gagliardi (“the
Supplemental Affidavit”).
[Dkt. no. 24.]
Relevant to the instant Motion, Local Rule 7.4 sets
forth the filing deadlines for a memorandum in opposition to a
hearing motion and a reply in support of a hearing motion.
It
also 7.4 states: “No further or supplemental briefing shall be
submitted without leave of court.”
J & J filed the Supplemental
Affidavit without obtaining leave of court.
This Court therefore
STRIKES J & J’s Supplemental Affidavit.
This Court now turns to the merits of A. Alcantara’s
Motion.
II.
Exclusive Remedies
This Court will first address A. Alcantara’s argument
that the remedies under the Communications Act and the remedies
under the Cable Act are mutually exclusive.
He asserts that an
illegal interception is either an interception of a cable signal,
in violation of 47 U.S.C. § 553, or an interception of a
4
satellite signal, in violation of 47 U.S.C. § 605.
interception cannot violate both provisions.
Thus, one
A. Alcantara asks
this Court to grant summary judgment in his favor as to Count II
because there is neither an allegation nor any evidence that
Defendants intercepted a cable signal.
As to the relationship between § 553 and § 605, at
least one district court within the Ninth Circuit has stated:
Both of these statutes combat theft of television
signals. To oversimplify, § 553 deals with theft
of cable television communications, while § 605
deals with theft of satellite television
communications. J & J seeks statutory damages
under both statutes, including $100,000 under
§ 605 and $50,000 under § 553. To award plaintiff
this entire amount, the Court would have to
conclude that defendants simultaneously violated
both statutes by airing a single television
program.
There is no Ninth Circuit authority
authorizing such an approach. Three of the four
circuits addressing the issue — the First, Third,
and Seventh — hold that § 605 and § 553 are
mutually exclusive. See Charter Commc’ns Entm’t
I, DST v. Burdulis, 460 F.3d 168, 173–78 (1st Cir.
2006); TKR Cable Co. v. Cable City Corp., 267 F.3d
196, 197 (3d Cir. 2001); United States v. Norris,
88 F.3d 462, 466–69 (7th Cir. 1996). Only the
Second Circuit holds that both § 553 and § 605 may
potentially apply to theft of cable television
signals. See Intern’l Cablevision, Inc. v. Sykes,
75 F.3d 123, 133 (2d Cir. 1996). But even the
Second Circuit did not authorize damages under
both sections. It remanded to the district court
to determine damages under § 605, which allows for
greater recovery than does § 553. Id. at 129
(remanding for imposition of damages under
§ 605(3) “‘instead of . . . the lesser damages
available under § 553’”) (citation omitted,
emphasis added). See also Integrated Sports
Media, Inc. v. Naranjo, Case No.
5
1:10–cv–00445–AWI–SMS, 2010 WL 3171182, at *3
(E.D. Cal. Aug. 11, 2010) (“the majority of courts
in the Ninth Circuit and elsewhere have imposed
damages only pursuant to one of the two
sections.”). But see Home Box Office v. Gee–Co,
Inc., 838 F. Supp. 436, 439–40 (E.D. Mo. 1993)
(awarding damages under § 553 and § 605).
J & J Sports Prods., Inc. v. Frei, No. 4:12–cv–0127–BLW, 2013 WL
3190685, at *2 (D. Idaho June 21, 2013) (alterations in Frei);
see also Joe Hand Prod., Inc. v. Behari, No. 2:12–cv–1522 KJM AC,
2013 WL 1129311, at *4 (E.D. Cal. Mar. 18, 2013) (noting split of
authority among circuits).
The United States District Court for the Eastern
District of California has stated that a plaintiff’s § 553 claim
and the plaintiff’s § 605 claim “may be mutually exclusive
following discovery,” but the defendant’s argument that the
plaintiff could not recover damages under both sections did “not
constitute an affirmative defense of election of remedies.”
J & J Sports Prods., Inc. v. Bear, No. 1:12–cv–01509–AWI–SKO,
2013 WL 708490, at *6-7 (E.D. Cal. Feb. 26, 2013).
The district
court also stated that “Plaintiff is entitled to plead
alternative theories of relief without making an election of
remedies at the pleading stage.
Defendant remains free to argue
on the merits that Plaintiff is unable, as both a factual and
legal matter, to recover damages under both Section 553 and 605.”
Id. at *7.
This Court agrees with the reasoning in Frei and Bear
6
and concludes that J & J cannot ultimately recover under both
§ 553 and § 605.
Although the instant case is beyond the
pleading stages addressed in Frei and Bear,2 this Court also
concludes that it is not necessary at this time to require J & J
to choose which remedy it will seek.
At this stage, J & J may
still pursue Count I and Count II as alternate theories of relief
against A. Alcantara.
III. Conversion
A. Alcantara also argues that Count III fails as a
matter of law because the Hawai`i courts have not recognized a
conversion claim based on the taking of intangible property.
This Court agrees.
The Intermediate Court of Appeals of Hawai`i (“ICA”)
has stated that:
Conversion encompasses the following acts: “(1) A
taking from the owner without his consent; (2) an
unwarranted assumption of ownership; (3) an
illegal use or abuse of the chattel; and (4) a
wrongful detention after demand.” Tsuru v. Bayer,
25 Haw. 693, 696 (1920). The evidence presented
established a prima facie case that [the
Department of Hawaiian Home Lands (“DHHL”)]
committed acts (1) and (2) of this definition by
rounding up and selling Nobriga’s cattle without
his consent. DHHL emphasizes that it mistakenly
believed its actions were lawful. However,
conversion does not require wrongful intent. 18A
Am. Jur. 2d Conversion § 3 (2010); Federal Ins.
2
Frei involved the plaintiff’s motion for default judgment.
2013 WL 3190685, at *1. Bear involved the plaintiff’s motion to
strike the answer and its motion to strike affirmative defenses.
2013 WL 708490, at *1.
7
Co. v. Fries, 78 Misc. 2d 805, 355 N.Y.S.2d 741,
744 (N.Y. City Civ. Ct. 1974). “[T]he defendant’s
knowledge, intent, motive, mistake, and good faith
are generally irrelevant.” Morissette v. United
States, 342 U.S. 246, 253, 72 S. Ct. 240, 96 L.
Ed. 288 (1952). “So long as he [or she] intends
to deal with the property in a way which is in
fact inconsistent with the plaintiff’s right, he
[or she] is a converter.” Fries, 355 N.Y.S.2d at
744.
Freddy Nobriga Enters., Inc. v. State, Dep’t of Hawaiian Home
Lands, 129 Hawai`i 123, 129-30, 295 P.3d 993, 999-1000 (Ct. App.
2013) (some alterations in Freddy Nobriga Enters.).
J & J has not identified any Hawai`i authority
recognizing that the unauthorized taking of intangible property
can give rise to a conversion claim, nor has J & J cited any
Hawai`i authority holding that a broadcast signal is considered
chattel for purposes of a conversion claim.
At least one
decision from this district court supports A. Alcantara’s
position that a Hawai`i law conversion claim cannot be based upon
the taking of an intangible interest.
Plaintiff cites to no caselaw, nor can the court
find any, in support of the proposition that [a]
person’s time can be considered chattel. Indeed,
at least one court in Illinois has found to the
contrary. See Stonecrafters, Inc. v. Foxfire
Printing & Packaging, Inc., 633 F. Supp. 2d 610,
613 n.1 (N.D. Ill. 2009) (“[U]nder the theory of
conversion . . . a person’s time is not a chattel
over which plaintiff had the immediate and
unconditional right to possess.”) In any event
the Plaintiff has not sufficiently demonstrated
that any of its “chattel” was taken without its
consent. See Tsuru, 25 Haw. at 696 (finding one
element of conversion is “[a] taking from the
owner without his consent”); [Sung v.] Hamilton,
8
710 F. Supp. 2d [1036,] 1043 [(D. Hawai`i 2010)]
(same); Pourny [v. Maui Police Dep’t], 127 F.
Supp. 2d [1129,] 1146 [(D. Hawai`i 2000)]
(granting summary judgment where a Plaintiff did
not show that Defendant “took chattel from
Plaintiff without his consent”).
BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 780 F. Supp. 2d
1061, 1081 (D. Hawai`i 2011) (some alterations in BlueEarth).
This Court recognizes that J & J has cited case law
from outside of Hawai`i supporting its position that the taking
of a broadcast signal can support a conversion claim.
A. Alcantara has also cited case law from other jurisdictions
concluding that a broadcast signal cannot support a conversion
claim.
These cases, however, are not controlling as to the issue
of whether Hawai`i law recognizes such a claim.
This Court has supplemental jurisdiction over Count
III.
See 28 U.S.C. § 1367(a).
“When a district court sits in
diversity, or hears state law claims based on supplemental
jurisdiction, the court applies state substantive law to the
state law claims.”
Mason & Dixon Intermodal, Inc. v. Lapmaster
Int’l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011).
This Court has
recognized that:
When interpreting state law, a federal court is
bound by the decisions of a state’s highest court.
Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422,
427 (9th Cir. 2011). In the absence of a
governing state decision, a federal court attempts
to predict how the highest state court would
decide the issue, using intermediate appellate
court decisions, decisions from other
jurisdictions, statutes, treatises, and
9
restatements as guidance. Id.; see also
Burlington Ins. Co. v. Oceanic Design & Constr.,
Inc., 383 F.3d 940, 944 (9th Cir. 2004) (“To the
extent this case raises issues of first
impression, our court, sitting in diversity, must
use its best judgment to predict how the Hawai`i
Supreme Court would decide the issue.” (quotation
and brackets omitted)).
Evanston Ins. Co. v. Nagano, 891 F. Supp. 2d 1179, 1189 (D.
Hawai`i 2012) (some citations omitted).
In light of the Hawai`i Supreme Court’s statements in
Tsuru and the ICA’s holding in Freddy Nobriga Enterprises, this
Court predicts that the Hawai`i Supreme Court will hold that,
under Hawai`i law, the tort claim of conversion does not extend
to the unauthorized taking of intangible property.
This Court
therefore concludes that J & J’s conversion claim alleging the
unauthorized interception and broadcast of the Program fails as a
matter of law.
A. Alcantara’s Motion is GRANTED as to Count III,
which is DISMISSED as to both A. Alcantara and C. Alcantara.
IV.
Individual Liability Under the
Cable Act and the Communications Act
Under either § 553 or § 605, “[t]o hold a person liable
in his or her individual capacity, the plaintiff must demonstrate
that the individual authorized the violation or had both a right
and ability to supervise the violations and a strong financial
interest in such activities.”
J & J Sports Prods., Inc. v. La
Reyna Mexican Rest. & Mariscos LLC, No. 2:12–CV–1528 JCM (PAL),
2013 WL 4006500, at *4 (D. Nev. Aug. 5, 2013) (citing Joe Hand
10
Promotions, Inc. v. Soviero, 11 CV 1215 NGG, 2012 WL 3779224, at
*9 (E.D.N.Y. July 31, 2012) report and recommendation adopted,
11–CV–1215 NGG CLP, 2012 WL 3779221 (E.D.N.Y. Aug. 30, 2012)).
It is undisputed that A. Alcantara attended the
Pacquiao v. Mosley fight in person and therefore was not
physically present at Filipino Express either during the fight or
immediately before and after the fight.
[A. Alcantara’s Concise
Statement of Facts, filed 1/24/14 (dkt. no. 17) (“A. Alcantara
CSOF”) at ¶¶ 5, 7;3 Pltf.’s Concise Statement, filed 2/17/14
(dkt. no. 20) (“J & J’s CSOF”), at ¶ 6 (stating that J & J does
not dispute, inter alia, facts 5 and 7 of A. Alcantara’s CSOF).]
A. Alcantara asserts that, if Filipino Express did intercept and
broadcast the Program, he neither authorized nor supervised those
activities.
Further, he argues that he did not have a strong
financial interest in the interception and broadcast.
[Mem. in
Supp. of Motion at 3.]
According to A. Alcantara’s declaration that he
submitted with the Motion, he was previously the president of
Philippine Import and Export Corporation (“PIEC”).
PIEC’s
primary business was a retail store in Waipahu called the
Filipino Seafood and Vegetable Market, which PIEC opened in or
about 1993 (“the Market”).
about 2000.
3
A. Alcantara closed the Market in or
[A. Alcantara Decl. at ¶¶ 2-5.]
The facts in the A. Alcantara CSOF are not numbered.
11
In or about 1994, C. Alcantara opened Filipino Express
in a vacant commercial space next to the Market.
When
A. Alcantara closed the Market, C. Alcantara used the Market’s
space to expand Filipino Express.
According to A. Alcantara,
from the beginning of Filipino Express, C. Alcantara was the
owner and operator of the restaurant.
A. Alcantara neither owned
Filipino Express, had control over its activities, nor had
knowledge of the details of its operations.
[Id. at ¶¶ 6-10.]
After A. Alcantara closed the Market in 2000, he went to work for
his father’s construction business in Honolulu, but in or about
2010, A. Alcantara left his father’s business to start a Guambased construction and contracting business, called First Pacific
Builders, LLC.
From about 2009, A. Alcantara traveled back and
forth between Honolulu and Guam for business.
[Id. at ¶¶ 11-13.]
Thus, A. Alcantara states that, at the time of the alleged
interception and broadcast of the Program, he did not own,
operate, or control Filipino Express.
[Id. at ¶ 27.]
Insofar as he was not present at Filipino Express on
the day of the Program, A. Alcantara asserts that he does not
know who was at Filipino Express, and he “did not instruct,
permit, authorize, or allow anyone else to intercept any cable
signal or satellite broadcast of” the Program.
[Id. at ¶ 25.]
In response, J & J contends that A. Alcantara could have
authorized or directed the interception and broadcast of the
12
Program, even though he was not physically present.
J & J
presented evidence that “Filipino Express Restaurant” was a
registered trade name of PIEC for the period from August 22, 2006
to August 21, 2011.
[Mem. in Opp., Decl. of Dan S. Ikehara
(“Ikehara Decl.”), Exh. 1 (Application for Registration of Trade
Name, dated 5/19/06 by the treasurer of PIEC, and signed by the
Department of Commerce and Consumer Affairs, State of Hawai`i
(“DCCA”) on 5/19/06).]
A. Alcantara signed a Domestic Profit
Corporation Annual Report as of April 1, 2010 for PIEC stating
that the nature of PIEC’s business is a restaurant, and
A. Alcantara and C. Alcantara were listed as PIEC’s only officers
and directors.
[Ikehara Decl., Exh. 2.]
The DCCA
administratively dissolved PIEC on December 2, 2011 “for failure
to file an annual report for a period of two years or remit fees
as required by law.”
[Id., Exh. 3 (DCCA Certificate of
Administrative Dissolution).]
On August 27, 2012, Anacleto
Alcantara, Sr. and C. Alcantara filed Articles of Organization
for Limited Liability Company for a company called “Kambingan
Filipino Express Restaurant LLC” (“Kambingan LLC”).
4.]
[Id., Exh.
A. Alcantara is listed as one of the four organizers of
Kambingan LLC and as one of the four members of the company,
which is identified as member-managed.
[Id.]
J & J emphasizes that the Domestic Profit Corporation
Annual Report shows that A. Alcantara and C. Alcantara have the
13
same residence address, which J & J argues indicates that
A. Alcantara likely knew about Filipino Express’s daily
operations.
J & J argues that, even if C. Alcantara managed the
day-to-day operations of Filipino Express, A. Alcantara was the
president and director of PIEC and thus had ownership, control,
and oversight over Filipino Express.
J & J also emphasizes that
A. Alcantara is currently a manager of Filipino Express, with his
family members, under the new name Kambingan LLC.
continue to have the same residence address.
Further, they
J & J argues that
there is sufficient evidence to show A. Alcantara’s control over
Filipino Express on the day of the Program, even though he was
not physically present.
[Mem. in Opp. at 8-9.]
At the hearing
on the Motion, J & J’s counsel acknowledged that the DCCA filings
are the only evidence that J & J has of A. Alcantara’s alleged
control over and interest in Filipino Express.
This Court will not consider the evidence that J & J
submitted regarding Kambingan LLC because that entity was not
formed until after the Program.
Insofar as this Court must view
the current record in the light most favorable to J & J, this
Court can assume that A. Alcantara is a member and officer in
Kambingan LLC and that an illegal broadcast of the Program
occurred at Filipino Express.
See Crowley v. Bannister, 734 F.3d
967, 976 (9th Cir. 2013) (“We review a grant of summary judgment
de novo and must determine, viewing the facts in the light most
14
favorable to the nonmoving party, whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law.” (citations and quotation
marks omitted)).
A. Alcantara’s role in the new entity, however,
is not relevant to the issue of whether A. Alcantara authorized
or supervised the alleged interception and broadcast of the
Program.
Further, even assuming that PIEC owned, or otherwise
operated, Filipino Express at the time of the alleged
interception and broadcast of the Program, and even assuming that
A. Alcantara was an officer and director of PIEC at that time,
A. Alcantara’s role and interest in PIEC is not enough to raise a
genuine issue of fact as to whether A. Alcantara either
authorized the allegedly illegal broadcast of the Program or had
the right and ability to supervise the alleged broadcast.
See
Fed. R. Civ. P. 56(a) (stating that a moving party is entitled to
summary judgment “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”).
Moreover, neither A. Alcantara’s
role and interest in PIEC nor his relationship to C. Alcantara is
enough to raise a genuine issue of fact as to whether
A. Alcantara had a strong financial interest in the alleged
interception and broadcast.
J & J urges this Court to follow Joe Hand Promotions,
15
Inc. v. Jorgenson, No. 12-C-0159, 2013 WL 64629 (E.D. Wis.
Jan. 4, 2013), in which the district court rejected the
individual defendant’s argument that he had no supervisory
control over the alleged interception and broadcast at issue in
that case.
Jorgenson is distinguishable from the instant case
because it was undisputed that the plaintiff, Donald L.
Jorgenson, Jr., owned the lodge where the alleged interception
and broadcast occurred.
Further, Jorgenson did not present any
evidence to contest the fact that he operated the lodge as a sole
proprietor doing business as “DJ’s Moose Knuckle Lodge.”
64629, at *2.
2013 WL
In denying Jorgenson’s motion for summary
judgment, the district court noted:
The designation “d/b/a” means “doing business
as,” but is merely descriptive of the person or
corporation who does business under some other
name. Duval v. Midwest Auto City, Inc., 425 F.
Supp. 1381, 1387 (D. Neb. 1977). “Doing business
under another name does not create an entity
distinct from the person operating the business.
The individual who does business as a sole
proprietor under one or several names remains one
person, personally liable for all his
obligations.” Plumbers’ Pension Fund v. Wright,
No. 86–C–1485, 1987 WL 10577, at *1 (N.D. Ill. May
1, 1987) (quoting Duval, 425 F. Supp. at 1387).
As such, the owner or sole proprietor and their
business are one and the same. Smith v. Castaways
Family Diner, 453 F.3d 971, 978 (7th Cir. 2006)
(“Legally, [the restaurant owner] as the sole
proprietor is [the restaurant]; she is the
individual, whether by hands-on management or
delegation to others of her choosing, who decides
the course of the business.”); Moriarty v. Svec,
164 F.3d 323, 336 (7th Cir. 1998) (Manion, J.,
concurring) (noting that a sole proprietorship has
no legal identity apart from the individual who
16
owns it). Therefore, DJ’s Moose Knuckle Lodge, so
far as the evidence before me indicates, is
nothing more than an assumed name, and not a legal
entity. Rather, it is simply the name under which
Jorgenson transacted his business. As there is no
evidence that Jorgenson chose to organize his
business as a corporation or other limited
liability entity, he has asserted no basis for
concluding he is sheltered from liability.
Id. (alterations in Jorgenson).
In contrast, in the instant
case, Filipino Express is operated through a business entity, and
there is no evidence of A. Alcantara’s involvement in, or
financial benefit from, the alleged interception and broadcast of
the Program.
This Court therefore declines to follow Jorgenson.
Similarly, in other cases where the district court
allowed the Cable Act and Communication Act claims against the
individual defendant to go forward, the individual’s ownership of
and control over the establishment where the alleged interception
and broadcast occurred was not in dispute.
See, e.g., La Reyna
Mexican Rest., 2013 WL 4006500, at *4 (the individual
acknowledged that he was the owner of the restaurant, and there
was evidence that he was “the only member/officer of the
commercial establishment”); Soviero, 2012 WL 3779224, at *9 (the
complaint’s allegation that the individual defendant “had the
requisite control and financial interest to be held vicariously
liable for the violation” was accepted as true because the
17
individual defendant had “defaulted in this action”).4
In the instant case, there is no evidence that
A. Alcantara had the level of control over and financial interest
in Filipino Express’s alleged interception and broadcast of the
Program that was present in cases such as Jorgenson, La Reyna
Mexican Restaurant, and Soviero.
This Court notes that at least
one district court within the Ninth Circuit has disagreed with
Jorgenson.
See Joe Hand Promotions, Inc. v. Albright, No. CIV.
2:11–2260 WBS CMK, 2013 WL 4094411, at *3 (E.D. Cal. Aug. 13,
2013).
That court stated, “this court does not necessarily agree
with the court’s observation in Jorgenson.
In this court’s view,
under certain circumstances, an absentee owner could be unaware
that an unauthorized broadcast was shown at his establishment.”
Id.
The district court in Albright also distinguished the facts
of Jorgenson, noting that: “In Jorgenson, there was a large sign
advertising the unauthorized program’s broadcast.
It would be
much more difficult to believe that the defendant owner had no
knowledge of such an event in that case, than here, where there
was no evidence of promotion.”
Id. (some citations omitted)
(citing Jorgenson, 2013 WL 64629, at *3).
This Court agrees with the district court in Albright
that, there may be situations where an absentee owner was unaware
4
2012 WL 3779224 is the magistrate judge’s report and
recommendation, which the district judge adopted in 2012 WL
3779221 (E.D.N.Y. Aug. 30, 2012)
18
that his establishment broadcasted an illegally intercepted
program.
The absentee owner, however, may still be liable under
the Cable Act and Communications Act if he had the right and
ability to supervise, as well as a strong financial interest in,
the interception and broadcast.
The district court in Albright
ultimately ruled that the owner was not liable because, although
he was “‘doing business as’ Miners Ranch Saloon [and was
therefore] legally indistinguishable from Miners Ranch
Saloon, . . . there was no evidence that defendant exhibited the
Program for commercial or personal advantage.”
Id.
In the instant case, J & J has failed to raise a
triable issue of fact as to either: 1) whether A. Alcantara
authorized the alleged interception and broadcast of the Program;
or 2) whether A. Alcantara had the right and ability to supervise
the alleged interception and broadcast.
Further, although there
is evidence that Filipino Express had a substantial financial
interest in the alleged interception and broadcast of the
Program, there is no evidence that A. Alcantara had a substantial
financial interest in the alleged interception and broadcast.
This Court therefore finds that J & J has failed to
raise a genuine issue of material fact as to A. Alcantara’s
individual liability, and this Court concludes that A. Alcantara
is entitled to judgment as a matter of law as to Count I and
Count II.
19
CONCLUSION
On the basis of the foregoing, A. Alcantara’s Motion
for Summary Judgment, filed January 24, 2014, is HEREBY GRANTED.
Count III is DISMISSED WITH PREJUDICE as to C. Alcantara and
A. Alcantara, and this Court GRANTS summary judgment in favor of
A. Alcantara as to Count I and Count II.
There being no
remaining claims against A. Alcantara, this Court DIRECTS the
Clerk’s Office to terminate him as a party.
J & J’s claims against C. Alcantara in Count I and
Count II remain.
Insofar as J & J has obtained an entry of
default against C. Alcantara, this Court DIRECTS J & J to file
its motion for default judgment by May 13, 2014.
J & J’s motion
for default judgment must specify whether J & J seeks damages
against C. Alcantara under Count I or Count II.
This Court
cautions J & J that, if it fails to file its motion for default
judgment by May 13, 2014, this Court will issue an order to show
cause why J & J’s claims against C. Alcantara should not be
dismissed.
IT IS SO ORDERED.
20
DATED AT HONOLULU, HAWAII, April 25, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
J & J SPORTS PRODUCTIONS, INC. VS. ANACLETO S. ALCANTARA, JR. ET
AL; CIVIL NO. 13-00220 LEK-RLP; ORDER GRANTING DEFENDANT ANACLETO
S. ALCANTARA JR.’S MOTION FOR SUMMARY JUDGMENT
21
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