DIRECTV, Inc., v. Archer et al

Filing 36

ORDER Granting 23 Motion for Summary Judgment. Plaintiff Affidavit due by 5/19/2011, Prove-Up Hearing is set for Tuesday, 5/24/2011 at 2:00 PM in LV Courtroom (to be determined) before Judge Howard D. McKibben. Case terminated. Sign ed by Judge Howard D. McKibben on 5/11/2011. (Copies have been distributed pursuant to the NEF; Copy of this order forwarded to Defendant, Charlette Archer, at current address of 3720 West Bell Vista, Pahrump, NV 89060- DXS) Modified on 5/11/2011 (DXS). Modified on 5/11/2011 (PR).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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vs.
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CHARLETTE ARCHER, et al.,
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Defendant.
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_________________________________ )

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I.

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DIRECTV, INC., a California
Corporation,

2:10-cv-00408-HDM-RJJ

ORDER

Statement of the Case
Plaintiff is DirecTV, Inc., which operates a direct broadcast

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satellite service and owns the rights to distribute to commercial

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establishments the NFL Sunday Ticket Program on September 27, 2009.

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On March 23, 2010, plaintiff filed a complaint against defendants

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Charlette Archer, Glenn Petty and Our Place, aka Charlies Place,

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alleging the defendants illegally televised plaintiff's satellite

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programing using a number of fraudulent means and without paying

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the requisite licensing fees.

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Specifically, plaintiff alleges the defendants willfully violated

See Complaint (Docket No. 1).

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47 U.S.C. § 605 of the Communications Act by showing week 3 of the

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NFL Sunday Ticket program on September 27, 2009 at their bar, a

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commercial establishment.

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Place, aka Charlies Place, have since been dismissed from the

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action. See Notice of Partial Dismissal and Aug. 26, 2010 Minutes

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(Docket Nos. 14, 17).

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Archer, who is the sole proprietor of Our Bar in Pahrump, Nevada.

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She is proceeding pro se.

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Id.

Defendants Glenn Petty and Our

The only remaining defendant is Charlette

Defendant Charlette Archer was served with the summons and

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complaint on April 14, 2010.

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No. 5).

She filed an answer on May 5, 2010.

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No. 7).

On June 2, 2010, plaintiff mailed its initial disclosures

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to Archer. See Mot. Summ. J. 2 (Docket No. 23).

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2010, plaintiff served defendant Archer with discovery requests,

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including Requests for Admission, Interrogatories and Requests for

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Production.

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respond to the discovery requests within 30 days pursuant to

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Federal Rule of Civil Procedure 36(a)(3).

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September 22, 2010, plaintiff sent defendant a "good faith

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discovery letter."

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defendant a Notice of Facts Deemed Admitted pursuant to Rule

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36(a)(3) to place defendant "on notice that all matters contained

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in Plaintiff's Requests for Admission were deemed admitted by

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default." Mot. Summ. J. 3, Ex. B.

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See Certificate of Service (Docket

Mot. Summ. J. 3, Ex. A.

Id.

See Answer (Docket

On August 10,

Defendant Archer failed to

Mot. Summ. J. 3.

On

On October 1, 2010, plaintiff served

On November 23, 2010, plaintiff filed a motion for summary

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judgement arguing that since defendant failed to respond to

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plaintiff's requests for admission, there remains no genuine issue

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of material fact. Not. of Mot. Summ. J. 2.
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As of the filing of the

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motion for summary judgment, plaintiff had not received any

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response to its discovery requests or to its notice of facts deemed

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admitted. Mot. Summ. J. 3-4.

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summary judgment was due December 17, 2010.

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filed by defendant Archer at that time.

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plaintiff filed a notice of no opposition to plaintiff's motion for

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summary judgment, in which plaintiff asked this court to "construe

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such non-opposition as consent for granting the motion" and to rule

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on the motion for summary judgment forthwith, pursuant to Local

Any response to the motion for
No opposition was

On December 22, 2010,

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Rule 7-2(d) and Federal Rule of Civil Procedure 56(e)(2).

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First Not. of No Opp'n (Docket No. 27).

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See

On January 20, 2011, this court held a hearing on plaintiff's

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motion for summary judgment.

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Archer were present.

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Defendant advised the court that she had moved and was not

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receiving her mail.

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relating to the motion for summary judgment again and that she be

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given an extension of time in which to respond to the motion.

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addition, defendant advised the court that her current address is

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3720 West Bell Vista, Pahrump, Nevada 89060. Id.

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directed plaintiff to re-serve all previously served pleadings on

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defendant at her new address and granted defendant a thirty (30)

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day extension of time from January 24, 2011 in which to respond to

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the pleadings. Id.

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Plaintiff's counsel and defendant

See Jan. 20, 2011 Minutes (Docket No. 32).

She requested that she be sent any documents

In

The court

On January 21, 2011, plaintiff re-served nineteen (19)

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documents, including the motion for summary judgment, on defendant

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at "3720 W. Vell Vista, Pahrump, NV 89060."

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Service 2 (Docket No. 31).

See Certificate of

Defendant filed a motion to extend time
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to file a response to the motion for summary judgment on February

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25, 2011, in which she acknowledged receipt of the 19 re-served

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documents and requested a sixty (60) day extension of time to

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respond to them.

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court granted defendant's request on February 28, 2011.

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See Mot. Extend Time 2 (Docket No. 33).

The

Defendant again failed to respond to plaintiff's motion for

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summary judgment in the time allowed.

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notice of no opposition on May 3, 2011, asking the court to rule on

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the motion for summary judgment.

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Plaintiff filed a second

See Second Not. of No Opp'n

(Docket No. 35).

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II.

Legal Standard
Rule 56(c) provides that summary judgment be granted where

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there exists no genuine issue as to any material fact and the

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moving party is entitled to judgment as a matter of law. Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986).

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a "matter is admitted unless, within 30 days after being served,

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the party to whom the request is directed serves on the requesting

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party a written answer or objection." Fed. R. Civ. P. 36(a)(3).

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Thus, an unanswered request for admission is deemed admitted.

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"Unanswered requests for admissions may be relied on as the basis

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for granting summary judgment." Conlon v. United States, 474 F.3d

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616, 621 (9th Cir. 2007) (citing O'Campo v. Hardisty, 262 F.2d 621,

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624 (9th Cir. 1958); see also Darbellay v. Potter, 239 Fed. Appx.

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371 (9th Cir. 2007) (Because Darbellay failed to respond to USPS's

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requests for admissions, the district court properly deemed the

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matters admitted pursuant to Rule 36(a) , and, in the absence of

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any disputed issue of material fact, properly granted summary
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Rule 36(a)(3) provides that

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judgment.).

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party does not respond [to a motion for summary judgment], summary

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judgment should, if appropriate, be entered against that party."

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Fed. R. Civ. P. 56(e)(2).

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that "[t]he failure of an opposing party to file points and

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authorities in response to any motion shall constitute a consent to

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granting the motion." LR 7-2(d).

Further, Rule 56(e) provides that "[i]f the opposing

Likewise, Local Rule 7-2(d) provides

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III. Analysis
Plaintiff's motion for summary judgment argues that plaintiff

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is entitled to bring this action for damages under the

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Communications Act, which provides "no person not being entitled

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... shall receive ... any interstate or foreign communication by

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radio and use such communication ... for his own benefit." DIRECTV

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v. Hendrix, 2005 U.S. Dist. Lexis 17348; 47 U.S.C. § 605.

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Plaintiff also argues: (1) that DirecTV has the exclusive rights to

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distribute the NFL Sunday Ticket Program to commercial

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establishments; (2) that DirecTV works with auditors to discover

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illegal exhibitions of its programs; (3) that on September 27,

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2009, an auditor witnessed an illegal exhibition of week 3 of the

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NFL Sunday Ticket program by the defendant at Our Place/Our Bar;

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(4) that defendant did not have authorization to exhibit the

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program on September 27, 2009; and (5) that the exhibition of the

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program was intentional because the defendant only had a

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residential account with DirecTV and had purchased NFL Sunday

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Ticket at a residential rate. See Mot. Summ. J. 8-11, Ex. A (Pl's

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First Request for Admissions); see also Mader Affidavit Ex. A

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(Piracy Affidavit).
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Defendant was given several opportunities to respond to

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plaintiff's requests for admission and to oppose plaintiff's motion

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for summary judgment.

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where, after hearing from both sides, it deferred ruling on the

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motion for summary judgment.

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plaintiff re-serve defendant with the pleadings, including

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plaintiff's requests for admission and motion for summary judgment,

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and granted defendant a 30 day extension of time to respond to the

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pleadings.

The court held a hearing on January 20, 2011

In addition, the court ordered

See Jan. 20, 2011 Minutes.

On February 28, 2011, after

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defendant had been re-served with the pleadings, the court granted

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defendant an additional 60 days in which to respond to plaintiff's

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requests and oppose the motion for summary judgment.

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defendant has not responded to plaintiff's requests for admissions

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or filed an opposition to the motion for summary judgment.

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To date,

Unanswered requests for admission are deemed admitted and "may

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be relied on as the basis for granting summary judgment." Conlon,

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474 F.3d at 621; see also Rule 36(a)(3).

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party does not respond [to a motion for summary judgment], summary

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judgment should, if appropriate, be entered against that party."

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Fed. R. Civ. P. 56(e)(2); LR 7-2(d) (failure to oppose a motion

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constitutes consent to granting the motion).

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to plaintiff's requests for admission and by failing to oppose

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plaintiff's motion for summary judgment, defendant Archer has

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essentially admitted to the following: (1) she was a principal of

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Our Place/Our Bar, at 3720 West Bell Vista Avenue, Pahrump, Nevada,

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on September 27, 2009, with supervisory control over activities at

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Our Place/Our Bar and its operating procedures; (2) Our Place/Our

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Bar was open for business on September 27, 2009; (3) Archer and Our
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Further, if an "opposing

By failing to respond

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Place/Our Bar had the capacity to receive DirecTV programing on

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September 27, 2009; (4) Archer and Our Place/Our Bar exhibited a

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portion of the broadcast of week 3 of the NFL Sunday Ticket program

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on September 27, 2009; (5) the exhibition of the program was

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advertized; (6) the exhibition was not authorized by DirecTV; (7)

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Our Place/Our Bar is a commercial business that served food and

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alcohol and had the capacity for 50-75 patrons on September 27,

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2009; and (8) Archer and Our Place/Our Bar received financial

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benefit from exhibiting the program. See Mot. Summ. J. 4-6, Ex. A.

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In addition, the only document filed by defendant Archer in this

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action is her answer filed May 5, 2010.

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denies the allegations in the complaint, but also specifically

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states that:

Defendant Archer's answer

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When I lost my home I contacted Directv to tell them I

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was moving and needed to cancel my subscription.

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told that I was still under contract ... and would still

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owe for the remaining months even if I returned their

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equipment.

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the equipment at my new residence and complete my

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contract ... I decided to move in with my fiancé ... and

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as he had ... a full package with Dish Network, I put the

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Directv in the bar ... I had contacted Directv many times

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from the bar phone to make payments... and did not know

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that I was violating any rules.

I was

I was told that I could ... hook up all of

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See Answer ¶ 13.

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was "violating any rules," she admits to setting up the DirecTV

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equipment in her bar. Id.

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Although she claims not to have been aware she

Based on the foregoing, no genuine issue of material fact
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remains on plaintiff’s claims of violations of the Cable

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Communications Policy Act, 47 U.S.C. § 605(e)(3)(C), violations of

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18 U.S.C. § 2511 through interception of DirecTV’s electronic

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communications, and civil conversion.

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motion for summary judgment (Docket No. 23) is GRANTED.

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Accordingly, plaintiff's

The court shall hold a hearing on Tuesday, May 24, 2011, at 2

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p.m., at which time plaintiff shall prove up its damages and

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entitlement to injunctive relief.

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affidavit setting forth the requested damages together with any

Plaintiff shall file an

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entitlement to attorneys fees and costs on or before Thursday, May

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19, 2011.

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A copy of this order shall be forwarded to defendant at her
current address, 3720 West Bell Vista, Pahrump, Nevada 89060.

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IT IS SO ORDERED.

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DATED: This 11th day of May, 2011.

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____________________________
UNITED STATES DISTRICT JUDGE

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