DIRECTV, LLC v. Herrera et al

Filing 22

MEMORANDUM AND ORDER GRANTED 20 MOTION for Summary Judgment (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

DIRECTV, LLC,
Plaintiff,
v.
DAVID HERRERA, et al.,
Defendants.

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CIVIL ACTION NO. H-13-1212

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 20] filed by Plaintiff DIRECTV, LLC (“DIRECTV”), seeking summary
judgment on its claim under 47 U.S.C. § 605. Defendants David Herrera and Alicia’s
Mexican Grille #2 Inc. (“Alicia’s”) neither filed a response in opposition to the
Motion nor requested additional time to do so. The Southern District of Texas Local
Rules provide that failure to respond to a motion is taken as a representation of no
opposition. See LR 7.3, 7.4. However, when a party fails to respond to a Motion for
Summary Judgment, the Court must nevertheless consider the merits of the Motion.
Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Based on
the Court’s review of the record and relevant legal authorities, the Court grants the
Motion for Summary Judgment.

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I.

BACKGROUND
Plaintiff sued Defendants alleging violations of the Federal Communications

Act (“FCA”), 47 U.S.C. § 605. David Herrera is the owner of Alicia’s. Plaintiff
alleges that Defendants illegally intercepted and exhibited Satellite Programming on
at Alicia’s on October 11, 2012. After an adequate time to complete discovery,
Plaintiff moved for summary judgment. The Motion, to which no opposition has been
filed, is ripe for decision.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of

summary judgment against a plaintiff who fails to make a sufficient showing of the
existence of an element essential to her case and on which she will bear the burden at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Curtis v. Anthony, 710 F.3d
587, 594 (5th Cir. 2013). Summary judgment “should be rendered if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d
at 594.

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In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002);
Chambers v. Sears, Roebuck and Co., 428 F. App’x 400, 407 (5th Cir. June 15, 2011).
In the absence of any proof, the court will not assume that the non-movant could or
would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990)).
III.

ANALYSIS
The FCA prohibits the unauthorized interception and broadcast of satellite

transmissions. 47 U.S.C. § 605. The FCA is a strict liability statute, and the plaintiff
is required only to prove the unauthorized exhibition of the intercepted transmission.
See KingVision Pay-Per-View, Ltd. v. Lake Alice Bar, 168 F.3d 347, 349 (9th Cir.
1999). A prevailing plaintiff may recover statutory damages of up to $10,000.00 for

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a violation of § 605. If the violation was willful and “for purposes of direct or indirect
commercial advantage or private financial gain,” the Court may award additional
damages. A prevailing party is entitled to recover its reasonable costs and fees. See
47 U.S.C. § 605(e)(3)(B)(iii).
In this case, Plaintiff has presented evidence that on October 11, 2012, its
auditor Keith Howse was at Alicia’s where he observed two television sets exhibiting
DIRECTV Satellite Programming for public viewing. See Affidavit of Keith Howse,
Exh. B to Motion. Specifically, the television sets at Alicia’s were exhibiting an NFL
game between the Pittsburgh Steelers and the Tennessee Titans. See id. Neither
Defendant had a commercial DIRECTV account authorizing Alicia’s to receive
DIRECTV’s Satellite Programming. See Affidavit of Kent P. Mader [Doc. # 20-1],
¶ 13.

Defendant Herrera had a residential account for DIRECTV Satellite

Programming at his residence in Cypress, Texas, but the residential rate for DIRECTV
is less expensive than the rate for commercial accounts. Defendants have presented
no evidence to the contrary. Indeed, Defendants failed to respond to Plaintiff’s
Requests for Admission and, therefore, are deemed to have admitted the facts set forth
above.
Plaintiff’s uncontroverted evidence establishes that Defendants exhibited
DIRECTV’s Satellite Programming on October 11, 2012. Defendants have admitted,

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through their failure to respond to the Requests for Admission, that their violation was
willful and “for purposes of direct or indirect commercial advantage or private
financial gain.” Accordingly, Plaintiff is entitled to summary judgment and to an
award of statutory damages and costs.
IV.

CONCLUSION AND ORDER
The uncontroverted evidence in this record establishes that Defendants willfully

violated the FCA by illegally intercepting and exhibiting DIRECTV’s Satellite
Programming, and did so for commercial financial gain. Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 20] is
GRANTED. The Court will issue a separate Final Judgment.
SIGNED at Houston, Texas, this 24th day of April, 2014.

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