Joe Hand Promotions, Inc. v. Chalfont
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT re 33 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/6/2015. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Byron E. Chalfont shall be served by first class mail at the address of record on August 7, 2015.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOE HAND PROMOTIONS, INC.,
BYRON E. CHALFONT,
individually and d/b/a
CIVIL NO. 14-00129 SOM/BMK
ORDER DENYING MOTION FOR
PARTIAL SUMMARY JUDGMENT
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
The court has before it a motion for partial summary
judgment filed by Plaintiff Joe Hand Promotions, Inc. (“Joe
Joe Hand seeks summary judgment on Count I of the
Complaint, a claim for violation of 47 U.S.C. § 605.
for partial summary judgment is denied.1
Joe Hand is a distributor of sports and entertainment
See ECF No. 33-2, PageID # 97.
It purchased the
commercial licensing rights to the “Ultimate Fighting
Championship 147: Wanderlei Silva v. Rich Franklin” (“UFC 147”),
a bout held on June 23, 2012.
Joe Hand then sold
sublicenses to commercial customers, including restaurants and
bars, allowing those customers to show UFC 147 at their
The court decides this matter without a hearing pursuant
to Local Rule 7.2(d).
Out of concern with increasing piracy of its
broadcasts, Joe Hand began policing its signals and hired
auditors and law enforcement personnel to identify signal
Through this effort, Joe Hand allegedly
determined that Defendant Byron E. Chalfont, the then-owner of
Honolulu Tavern, exhibited UFC 147 at his business without a
See ECF No. 1, PageID # 4-5; ECF No. 33-
2, PageID # 98.
According to Joe Hand, a private investigator named
Samuel D. Fears entered Honolulu Tavern at 4:33 p.m. on June 23,
See ECF No. 33-6, PageID # 122.
an employee named Angel.
He ordered a drink from
Fears says he observed a Dell
computer “on the bar in the back” showing part of UFC 147,
including a fight between Fabricio Werdum and Mike Russow.
Ten people were in Honolulu Tavern while Fears, who left at 5:17
p.m., was there.
See id. at PageID # 123.
Joe Hand says that Honolulu Tavern would have been
charged a sublicense fee of $750 to show UFC 147.
See ECF No.
33-2, PageID # 98.
On March 13, 2014, Joe Hand filed the Complaint in this
action against Chalfont, alleging that the showing of UFC 147
without a sublicense violated 47 U.S.C. § 605 (Count I) and 47
U.S.C. § 553 (Count II), and constitutes conversion (Count III).
See ECF No. 1.
Joe Hand seeks partial summary judgment as to Count I
of its Complaint, arguing that the uncontroverted facts
demonstrate that Chalfont violated 47 U.S.C. § 605.
See ECF No.
In his opposition to Joe Hand’s motion, Chalfont
contends that disputed issues of material fact preclude summary
See ECF No. 37, PageID # 144.
Chalfont says that he
did not allow any pay-per-view program to be illegally shown at
See id. at PageID # 143.
that time stamps on pictures taken by Fears at Honolulu Tavern
indicate that they were not in fact taken on June 23, 2012, the
day Chalfont is alleged to have shown UFC 147.
PageID # 142.
See ECF No. 37,
Chalfont also contends that the Dell computer
Fears refers to “was not capable of streaming such a program
without constant buffering which would make it difficult to
According to Chalfont, the Dell computer was
provided as a courtesy to guests of Honolulu Tavern and of the
hotel in which it was located, the computer did not have a
security code, and it was not used for profit.
also asserts that Fears entrapped him by placing scenes of UFC
147 on the computer.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000).
The movant must support his or her
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
See id. at 323.
A moving party without the ultimate
burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
“A scintilla of evidence or
evidence that is merely colorable or not significantly probative
does not present a genuine issue of material fact.”
F.3d at 1134.
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
This Court Declines to Strike Chalfont’s
Joe Hand contends that this court should strike
Chalfont’s opposition because he filed it one day late, failed to
use 14-point font and double-spacing as required by Local Rule
10.2(a), and failed to file a concise statement of facts.
ECF No. 39, PageID # 157.
Although Chalfont should have
conformed his filing to the Local Rules, this court declines to
strike his opposition based on such violations, especially given
Chalfont’s pro se status.
Joe Hand has not demonstrated
prejudice from any of the cited failures.
This Court May Consider Information in Chalfont’s
Joe Hand contends that Chalfont has failed to present
any admissible evidence to support his contentions because the
statements in his opposition “were not sworn to under oath to be
true and accurate, declared true and accurate, or notarized by a
ECF No. 39, PageID # 158.
admissible evidence may be considered in deciding a motion for
summary judgment, see Orr v. Bank of Am., NT & SA, 285 F.3d 764,
773 (9th Cir. 2002), the proper focus is not on the admissibility
of the evidence’s form, but on the admissibility of its contents.
See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
Chalfont’s failure to include a declaration or affidavit is
immaterial if the contents of the statements in his opposition
would be admissible at trial.
The statements in Chalfont’s opposition are “mere
recitations of events within [his] personal knowledge,” and such
material could be admitted into evidence at trial through
testimony by Chalfont himself.
Fraser, 342 F.3d at 1037.
Because the information Chalfont recites in his
opposition could be admitted at trial, this court may consider
that information in deciding the motion for summary judgment.
Joe Hand is Not Entitled to Summary Judgment on
Joe Hand seeks summary judgment as to Count I of its
Complaint, which alleges that Chalfont violated 47 U.S.C. § 605.
That section states, in relevant part, that “no person receiving,
assisting in receiving, transmitting, or assisting in
transmitting, any interstate or foreign communication by wire or
radio shall divulge or publish the existence, contents,
substance, purport, effect, or meaning thereof, except through
authorized channels of transmission or reception.”
Disputed issues of material fact preclude summary
judgment as to Count I.
Chalfont disputes that any portion of
UFC 147 was shown at Honolulu Tavern on June 23, 2012.
No. 37, PageID # 143.
Chalfont says, among other things, that he
never allowed the program to be shown at his business, that he
believes Samuel Fears (the private investigator hired by Joe
Hand) entrapped him by placing scenes of UFC 147 on the public
computer Chalfont provided for the use of his guests, that the
computer allegedly involved was not capable of effectively
streaming the program, that Fears’s description of the bartender
does not reflect the bartender’s actual appearance at the time in
question, and that Fears’s pictures from the night of the alleged
violation were actually taken at a later date.
See ECF No. 37,
PageID #s 142-43.
Chalfont’s first and second points are related.
According to Chalfont, Fears visited Honolulu Tavern and asked
Chalfont to pull up UFC 147 on the computer and then to connect
it to the large television so Fears could watch it.
See id. at
Chalfont says he declined and specifically stated that he
had not paid the fee required for showing the fight.
This alleged history causes Chalfont to suspect that Fears
planted the fight on Chalfont’s computer.
The court does not
view the allegation of “planting” as anything more than a
suspicion at this point, and does not rely on that allegation in
However, Chalfont’s other assertions appear to rely on
matters within his personal knowledge, and they create a triable
This court cannot say that there is no genuine
factual dispute as to whether Chalfont violated 47 U.S.C. §
605(a) by allowing a pay-per-view program to be shown at Honolulu
See ECF No. 33-1, PageID # 88.
challenging specific facts material to determining whether a
violation of 47 U.S.C. § 605(a) occurred preclude summary
See Am. Motorists Ins. Co. v. Club at Hokuli'a, Inc.,
Civ. No. 10-00199 SOM/KSC, 2011 WL 4411580, at *4 (D. Haw. Sept.
20, 2011) (“This court routinely denies motions for summary
judgment brought on issues that turn on disputed questions of
Joe Hand’s motion for partial summary judgment is
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 6, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Joe Hand Promotions, Inc., v. Byron E. Chalfont, individually and d/b/a
Honolulu Tavern, Civ. No. 14-00129 SOM/BMK; ORDER DENYING MOTION FOR PARTIAL
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