Joe Hand Promotions, Inc. v. Crossroads Restaurant & Lounge, Inc. et al

Filing 33

MEMORANDUM AND ORDER re: 28 ORDERED that Defendant Sharon Lynn Wilson's Motion for Summary Judgment (ECF No. 28) is GRANTED, and Plaintiff Joe Hand's claims against her are DISMISSED WITH PREJUDICE. An appropriate Judgment will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 3/10/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
CROSSROADS RESTAURANT &,
LOUNGE, INC., et al.,
Defendants.

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Case No. 4:12CV2403 JCH

MEMORANDUM AND ORDER
This matter is before the Court in relation to Defendant Sharon Lynn Wilson‟s
(“Wilson”) Motion for Summary Judgment. (ECF No. 28). The matter has been fully briefed and
is ready for disposition.
Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) is the owner of “exclusive commercial
exhibition licensing rights to: Ultimate Fighting Championship 123 : Rampage Jackson v. Lyoto
Machida telecast, which took place on November 20, 2010 (hereinafter the „Program‟).”
(Plaintiff Memorandum in Opposition to Summary Judgment, ECF No. 31, (“JH Response”), at
6). Joe Hand alleges that without obtaining a commercial license, Wilson and Defendant
Crossroads Restaurant & Lounge (“Crossroads”) publicly displayed the Program. (Amended
Complaint, ECF No. 17, ¶ 3). Wilson is the President of Crossroads and appears from the record
to have other official roles. (Wilson Reply to JH Response, ECF No. 32, (“Wilson Reply”), at 12; JH Response at 5-6). Wilson maintains, however, that she had very little involvement in the
day-to-day operation of Crossroads, that she was not present at Crossroads when it allegedly
intercepted and aired the Program, and that she had no knowledge of the fact that the Program

had been aired at Crossroads. (Wilson Affidavit, ECF No. 30-1, at 1-2). Joe Hand has not
presented any facts to contradict Wilson‟s assertions, but it has presented facts that tend to
confirm Wilson‟s official roles at Crossroads. (JH Response at 2-6).1
On December 31, 2012, Joe Hand filed a Complaint against Wilson and Crossroads.
(ECF No. 1). That Complaint was dismissed without prejudice on April 25, 2013, and Joe Hand
was given an opportunity to amend its pleadings so it could overcome deficiencies in the
Complaint. (ECF No. 16). Joe Hand subsequently filed its Amended Complaint on May 23,
2013. (ECF No. 17). The Amended Complaint contains three counts: (I) unauthorized
publication or use of the Program in violation of 47 U.S.C. § 605; (II) unauthorized interception,
exhibition, publication, and divulgence of the Program in violation of 47 U.S.C. § 553; and (III)
tortious conversion of the Program.2 (Amended Complaint, ¶¶ 13-14, 18-19, 23). The Counts are
all directed the actions of the “Defendants” collectively. Id. Wilson filed this Motion for
Summary Judgment on January 30, 2014. (ECF No. 28).
SUMMARY JUDGMENT STANDARD
Under Fed. R. Civ. P. 56, a “court shall grant 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.” Fed. R. Civ. P. 56(a). The substantive law determines “which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude summary
judgment.” Id. In passing on a motion for summary judgment, the Court must view the facts in
Joe Hand argues that Wilson‟s affidavit is “self-serving” and “cannot be sufficient to satisfy an initial
burden on summary judgment.” (JH Response at 9). This argument is unpersuasive considering that
movants can satisfy their burden on summary without an affidavit. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (“claimants and defendants, respectively, may move for summary judgment „with or without
supporting affidavits‟” (emphasis in original)).
2
On July 12, 2013, the Court struck a portion of Count III of the Amended Complaint that requested
attorney‟s fees and investigative costs. (ECF No. 25).
1

the light most favorable to the nonmoving party, and all “justifiable inferences” are to be drawn
in its favor. Id. at 255. Ultimately, the Court=s function is not “to weigh the evidence . . . but to
determine whether there is a genuine issue for trial. Id. at 249. A genuine issue for trial exists if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
at 248.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. 317, 323 (1986).

Once the moving party discharges this burden, the

nonmoving party must set forth specific facts demonstrating that there is a dispute as to a
genuine issue of material fact, not the Amere existence of some alleged factual dispute.@
Anderson, 477 U.S. at 247 (emphasis in original). The nonmoving party “may not rest upon
mere allegations or denials of its pleadings.” Id. at 248 (internal citations omitted).
DISCUSSION
I. Statutory Claims
Counts I and II of the Amended Complaint allege that Wilson is liable under 47 U.S.C.
§ 605(a) and 47 U.S.C. § 553(a)(1), both of which prohibit cable piracy. Counts I and II do not
distinguish between Wilson‟s actions and Crossroads‟s actions. (Amended Complaint, ¶¶ 12-16,
18-21 (making allegations only against the “Defendants”)). The Amended Complaint thus
appears to allege that Wilson is liable both for her own actions and for Crossroad‟s actions. To
determine whether an individual can be held liable under §§ 605(a) and 553(a)(1) for the actions
of a corporation, the Eighth Circuit uses a “no distinction” standard. See Comcast of Illinois X v.
Multi-Vision Electronics, Inc., 491 F.3d 938, 947 (8th Cir. 2007). Under that test, “a plaintiff
must show that there exists „no distinction‟ between the individual‟s actions and that of his

corporation.” Joe Hand Promotions, Inc. v. Sharp, 885 F. Supp. 2d 953, 956 (D. Minn. 2012)
(citing Comcast, 491 F.3d at 947).
There is insufficient evidence in the record to support the allegation that Wilson is liable
for violating the sections cited above. Joe Hand has not produced a single fact to support the
theory that Wilson played a part in the alleged illegal broadcast of the Program. There is
therefore no genuine issue for trial as to whether Wilson herself violated either § 605(a) or
§ 553(a)(1).
Nor has Joe Hand presented sufficient evidence that Wilson can be held liable under
those sections for Crossroads‟s actions. Joe Hand has pointed to evidence in the record that
Wilson is the President of Crossroads and has a few other official roles. (JH Response at 5-6).
But there is nothing to suggest that Wilson knew about the alleged illegal broadcast of the
Program or had any other knowledge of the day-to-day activities at Crossroads. Cf. Comcast, 491
F.3d at 947 (finding a sole owner liable for the illegal acts of his corporation where “[h]is
deposition testimony demonstrate[d] that he knew of the uses and features of the cable boxes
Multivision sold, was intimately familiar with how cable services function, and was involved in
setting company policy”). The facts adduced by Joe Hand therefore create no genuine issue for
trial, and Wilson is entitled to summary judgment on Counts I and II.
II. Conversion Claim
Count III of the Amended Complaint alleges that Wilson should be held liable for
conversion. As in Counts I and II, the allegations in Count III do not distinguish Wilson and
Crossroads, referring instead to the “Defendants” in the collective. (Amended Complaint, ¶¶ 2325). To survive summary judgment Joe Hand must therefore show that a genuine issue exists for

trial as to whether Wilson herself committed conversion or whether Wilson could be held liable
for Crossroads‟s alleged conversion.
“Conversion is the unauthorized assumption of the right of ownership over the personal
property of another to the exclusion of the owner‟s rights.” Kennedy v. Fournie, 898 S.W.2d 672,
678 (Mo. Ct. App. 1995). To succeed in a conversion suit in Missouri, a plaintiff must prove
three elements: “(1) plaintiff was the owner of the property or entitled to its possession; (2)
defendant took possession of the property with the intent to exercise some control over it; and (3)
defendant thereby deprived plaintiff of the right to possession.” JEP Enterprises, Inc. v.
Wehrenberg, Inc., 42 S.W.3d 773, 776 (Mo. Ct. App. 2001).
There are two theories under which a corporate officer can be personally liable for the
actions of a corporation under Missouri law. Saidawi v. Giovanni’s Little Place, Inc., 987
S.W.2d 501, 504-05 (Mo. Ct. App. 1999). Under an “alter ego” theory, “„when a corporation is
so dominated by a person as to be a mere instrument of that person and is indistinct from the
person controlling it, then the court will disregard the corporate form if to retain it would result
in injustice.‟” Id. (citing Edward D. Gevers Heating & Air Conditioning Co. v. R. Webbe Corp.,
885 S.W.2d 771, 773 (Mo. Ct. App. 1994)). Under a “piercing the corporate veil” theory, “a
plaintiff must meet a two part test: first, the corporation must be controlled and influenced by
persons or another corporation; second, evidence must establish that the corporate cloak was
used as a subterfuge to defeat public convenience, to justify a wrong, or to perpetrate a fraud.”
Id. (internal citations omitted).
Joe Hand cannot survive a summary judgment motion on his conversion claim against
Wilson. Again, no fact in the record demonstrates that Wilson herself had anything to do with
the alleged cable piracy. The only evidence Joe Hand has presented is that Wilson was an officer

of Crossroads on the date it allegedly displayed the Program. This is insufficient to show that
Crossroads was a “mere instrument” of Wilson or “that the corporate cloak was used as a
subterfuge” for nefarious purposes.

Accordingly,
IT IS HEREBY ORDERED that Defendant Sharon Lynn Wilson‟s Motion for
Summary Judgment (ECF No. 28) is GRANTED, and Plaintiff Joe Hand‟s claims against her
are DISMISSED WITH PREJUDICE. An appropriate Judgment will accompany this
Memorandum and Order.

Dated this 10th day of March, 2014.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE