Joe Hand Promotions, Inc. v. Peterson

Filing 16

MEMORANDUM AND ORDER - Defendant Daris W. Peterson's (Filing No. 9 ) Motion for Summary Judgment is denied. Peterson will respond to the Plaintiff's Complaint on or before December 13, 2012. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
DARIS W. PETERSON,
Defendant.

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CASE NO. 8:12CV241

MEMORANDUM
AND ORDER

This matter is before the Court on the Motion for Summary Judgment (Filing No.
9)1 filed by Defendant Daris W. Peterson (APeterson@). The parties have submitted briefs
(Filing Nos. 10 and 13) and Peterson has submitted an Index of Evidence (Filing No. 11).
For the reasons discussed below, the Motion will be denied.
FACTUAL BACKGROUND
Based on the pleadings, briefs, and very limited evidence in the record, the
following facts either are undisputed or are stated in the light most favorable to the Plaintiff
Joe Hand Promotions, Inc. (“Joe Hand”).
Joe Hand, a Pennsylvania corporation with its principal place of business in
Feasterville, Pennsylvania, acts as a commercial distributor and licensor of sporting
events. As such, it was granted exclusive nationwide commercial distribution rights to a
boxing program entitled Ultimate Fighting Championship 100: “Making History” (“UFC
100”), to be closed-circuit telecast nationwide on July 11, 2009. Joe Hand’s exclusive
broadcast rights for UFC 100 included all bouts and commentary encompassed by the
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Peterson moves both for dismissal and summary judgment. The motions present a single
argument, and rely on Peterson’s affidavit in support. The Plaintiff voiced no objection to Peterson’s use of
evidence, although the Plaintiff objects to the conclusions of law Peterson suggests be drawn from such
evidence. The Court will address Peterson’s motions as a single motion for summary judgment. See
Brooks v. Midwest Heart Group, 655 F.3d 796, 798 (8th Cir. 2011); Fed. R. Civ. P. 12(d).

event. Pursuant to its exclusive rights, Joe Hand sublicensed UFC 100 to various
commercial entities in North America, including Nebraska, granting sublicensees in the
hospitality industry, e.g., bars, limited rights to exhibit the event to the public. In doing so,
Joe Hand incurred considerable expense related to the promotion, marketing,
administration, and transmission of the event.
Peterson is a resident of Omaha, Nebraska, and was the agent and sole
shareholder of Double Dare, Inc. (“Double Dare”), a Nebraska corporation. On July 11,
2009, when UFC 100 was telecast, Double Dare leased and operated a bar called “No
Dogs Allowed” in Omaha, where Peterson worked for pay. Double Dare also had a
Nebraska liquor license on which Peterson was identified as “President” of the
corporation. Peterson intercepted the UFC broadcast, or willfully allowed it to be
intercepted, and publicly displayed it to the patrons of No Dogs Allowed, on July 11, 2009,
despite not having a license to do so. On April 16, 2010, Double Dare was rendered
inactive for non-payment of taxes.
Joe Hand filed this action on July 9, 2012, alleging an unauthorized publication or
use of communications in violation of 47 U.S.C. § 605 (Count I), an unauthorized
reception of cable service in violation of 47 U.S.C. § 553 (Count II), and conversion
(Count III).
STANDARD OF REVIEW
Summary judgment is only proper when the Court, viewing the evidence in the light
most favorable to the nonmoving party and drawing all reasonable inferences in the
nonmoving party’s favor, determines the evidence “show[s] that there is no genuine issue

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as to any material fact and that the movant is entitled to judgment as a matter of law.”
Semple v. Fed. Exp. Corp., 566 F.3d 788, 791 (8th Cir. 2009) (quoting Fed. R. Civ. P.
56(c)). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
issue, . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of
the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need
not negate the nonmoving party’s claims by showing “the absence of a genuine issue of
material fact.” Id. Instead, “the burden on the moving party may be discharged by
‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.”
Id. at 325.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that its claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009), cert.
denied, 130 S. Ct. 1074 (2010) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). The nonmoving party is required to demonstrate a
“genuine issue of material fact” that is outcome determinative–“a dispute that might ‘affect
the outcome of the suit under the governing law.’” Bloom v. Metro Heart Group of St.
Louis, Inc., 440 F.3d 1025, 1029 (8th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986)). Thus, a “genuine issue” is more than “‘some metaphysical
doubt as to the material facts,’” Nitro, 565 F.3d at 422 (quoting Matsushita, 475 U.S. at
586), and “‘the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment.’” Bloom, 440
F.3d at 1028-29 (quoting Anderson, 477 U.S. at 247-48).
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In other words, in deciding “a motion for summary judgment, [the] 'facts must be
viewed in the light most favorable to the nonmoving party only if there is a “genuine”
dispute as to those facts.'” Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (quoting
Scott v. Harris, 550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the
record taken as a whole could not lead a rational trier of fact to find for the non-moving
party”–where there is no “genuine issue for trial”–summary judgment is appropriate.
Matsushita, 475 U.S. at 587.
DISCUSSION
Peterson does not deny that he intercepted and displayed UFC 100 at No Dogs
Allowed. 2 He argues, however, that the now-defunct corporation Double Dare is the
responsible party, and that Joe Hand has not pled facts sufficient to pierce the corporate
veil and hold Peterson individually liable for violating 47 U.S.C. §§ 605 and 553. In
response, Joe Hand argues that violations of §§ 605 and 553 are analogous to copyright
infringements, and an individual acting through a corporation may be personally liable for
violations committed pursuant to his control and for his benefit.
Section 605(a) reads in part: “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.” Similarly, § 553(a)(1) reads in part: “No person shall
intercept or receive or assist in intercepting or receiving any communications service
2

Peterson invokes Fed. R. Civ. P. 17 in support of his Motion, asserting that he is not a “real party
in interest.” (Filing No. 10, pp. 4-5). As Joe Hand correctly points out, Rule 17 establishes criteria for a
claimant to bring a claim. See Consul Gen. of Republic of Indonesia v. Bill's Rentals, Inc., 330 F.3d 1041,
1045 (8th Cir. 2003) (“The real party in interest is a party who, under governing substantive law, possesses
the rights to be enforced.”) Rule 17 is inapplicable.

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offered over a cable system, unless specifically authorized to do so by a cable operator or
as may otherwise be specifically authorized by law .”
Courts have held that individuals who have the supervisory power and ability to
commit violations of these statutes, and who derive financial benefits from the violations,
can be held personally liable although the violations may have been committed through a
corporation. See e.g. Comcast of Ill. X v. Multi–Vision Elecs., Inc., 491 F.3d 938, 947 (8th
Cir. 2007) (finding individual liability where there was “no distinction” between the actions
of the individual and the company); J & J Sports Prods., Inc. v. Ribeirao, 562 F.Supp.2d
498, 501 (S.D.N.Y. 2008) (internal quotation marks and citation omitted) (“To hold Ribeiro
vicariously liable in her individual capacity under § 605, J & J Sports must show that
Ribeiro had a right and ability to supervise the violations, and that she had a strong
financial interest in such activities.”); Don King Prods. v. Panaderia y Reposteria La
Milagrosa, 553 F. Supp. 2d 97, 100 (D.P.R. 2008) (“[A]n individual in his personal
capacity may be found liable under 47 U.S.C. § 553 . . . [but] there must be some factual
allegation that an individual acting in his personal capacity violated the statute.”)
Peterson was the sole owner and shareholder of Double Dare, as well as the
individual identified on Double Dare’s liquor license for No Dogs Allowed. At this stage of
the proceedings, it appears that Peterson had the power to commit or prevent the alleged
violations, and was in a position to benefit from the violations. As in Comcast, there
appears to be “no distinction” between the actions of Double Dare and Peterson with
respect to the alleged piracy.

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Genuine issues of material fact remain for discovery and trial, including the specific
role Peterson played in the alleged interception of the UFC 100 broadcast. Accordingly,
Peterson’s Motion for Summary Judgment will be denied.
IT IS ORDERED:
1.

Defendant Daris W. Peterson’s (Filing No. 9) Motion for Summary
Judgment is denied; and

2.

Peterson will respond to the Plaintiff’s Complaint on or before December 13,
2012.

DATED this 26th day of November, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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