DIRECTV LLC v. Hui et al

Filing 31

ORDER signed by Judge J P Stadtmueller on 1/15/16: denying 19 Plaintiff's Motion for Summary Judgment and that this action proceed to trial; and, granting 10 Plaintiff's Unopposed Motion to Dismiss Defendants' counterclaim. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DIRECTV LLC,
Plaintiff,
v.
ROSE HUI, a/ka ROSE M. HUI,
DENNIS YI HUI, and
HAIWEN, INC. ,d/b/a HUI’S CHINESE,
a/k/a HUI’s CANTONESE AND
AMERICAN RESTAURANT,
a/k/a HUI’S RESTAURANT.

Case No. 15-CV-226-JPS

ORDER

Defendants.
Plaintiff DIRECTV LLC, (“DIRECTV”), brings this action against
Defendants, Rose Hui, a/k/a Rose M. Hui, Dennis Yi Hui, and Haiwen, Inc,
d/b/a Hui’s Chinese, a/k/a Hui’s Cantonese and American Restaurant, a/k/a
Hui’s Restaraunt1 (collectively “the defendants”) for illegally receiving and
displaying DIRECTV’s satellite programming on April 22, 2014. (See Compl.,
Docket #1). This matter comes before the Count on DIRCTV’s unopposed
motion to dismiss the defendants’ counterclaim (Docket #10), which the
Court will grant for lack of opposition, and DIRECTV’s motion for summary
judgment, filed on September 30, 2015. (Docket #19). The motion for
summary judgment is now fully briefed and ready for disposition. As
discussed in detail below, the Court finds that material issues of fact preclude
summary judgment and, thus, DIRECTV’s motion for summary judgment
will be denied.

1

For clarity, the Court will simply refer to the restaurant as “Hui’s Chinese
Restaurant.”

1.

BACKGROUND
1.1.

Defendants’ Failure to Follow Civil Local Rule 56 (b)(2)(B)

Before turning to the factual background of this case, the Court must
first discuss the defendants’ failure to comply with Civil Local Rule 56
(b)(2)(B). In opposing summary judgement, the defendants failed to respond
to each of the numbered facts in DIRECTV’s statement of proposed material
facts (Docket #23), and further failed to provide any references to affidavits,
declarations, parts of the record, or other supporting materials relied upon
to support their own proposed findings of fact (Docket #30). As a result of the
defendants’ failure to comply with the local rules, the Court has discretion
to deem admitted each of DIRECTV’s submitted facts. See Stevo v. Frasor, 662
F.3d 880, 886-87 (7th Cir. 2011) (“[D]istrict court judges are entitled to insist
on strict summary judgment filings.”)
The Court, however, declines to exercise this discretion because the
defendants’ brief in opposition to the motion for summary judgment clearly
identifies material facts that remain in dispute. Additionally, as discussed
more fully below, the defendants’ argument largely rests on factual disputes
that can be observed in DIRECTV’s own submitted video evidence. As such,
the Court views the facts in the light most favorable to the defendants as the
non-moving party, as it must, and draws all reasonable inferences in their
favor. See Tebbens v. Mushol, 692 F.3d 807, 815 (7th Cir. 2012).
1.2

Factual Background2

DIRECTV is the United States’ leading direct broadcast satellite
service. (PPFF ¶ 38). DIRECTV offers its television programming to

2

Unless otherwise noted, the following facts are extracted from DIRECTV’s
proposed findings of fact (“PPFF”) (Docket #23) and the defendants’ proposed
findings of fact (“DPFF”) (Docket #30).

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residential and business customers on a subscription and pay-per-view basis
only. (PPFF ¶ 39). In order to receive and view DIRECTV satellite
programming, each customer is required to obtain DIRECTV satellite
hardware (including a small satellite dish and DIRECTV integrated
receiver/decoder with DIRECTV access card) and is required to establish an
account with DIRECTV. (PPFF ¶ 40). DIRECTV’s residential and commercial
subscribers use the same satellite receiving equipment to receive DIRECTV
programming signals. (PPFF ¶ 42).
Rose Hui and Dennis Hui operate Hui’s Chinese, a restaurant in
Wauwatosa, Wisconsin. (Defs’ Opp. at 1). Haiwen, Inc., is a corporation that
has ownership of the restaurant, and Rose Hui is the registered agent for
Haiwen, Inc. (PPFF ¶ 2). During the relevant time period, Rose and Dennis Hui
were principals of Haiwen, Inc. (PPFF ¶¶ 10, 11). Currently, Rose Hui and
Dennis Hui are the only employees of the restaurant, (Defs’ Opp. at 1),
however, as of April 22, 2014, the restaurant employed one other individual,
Yan Hong Ruan. (PPFF ¶ 33).
On May 15, 2007, Rose Hui activated a residential account, number
038584454 with DIRECTV with an address located at 12500 Laurel Ln., Elm
Grove, WI 53122. (PPFF ¶ 24). The account allowed for several televisions to
be used. (DPPF ¶ 1). Near the end of 2012, the defendants moved one of
those televisions to Hui’s Restaurant so that Rose Hui could watch Chinese
programing while at work. (DPPF ¶ 2). The defendants maintain that the
television was located in the restaurant for Rose Hui’s personal viewing only.
(DPPF ¶ 3).
On April 22, 2014, a DIRECTV auditor, Mark Butler, arrived at Hui’s
restaurant at approximately 8:56 p.m. (Docket #20-1 at 2-3). During this visit,
the auditor took pictures and a video of his visit. (Docket #20-1 at 4.). While
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in the restaurant, the investigator observed “DIRECTV programming, a
DIRECTV remote control and a DIRECTV receiver,” and “the DIRECTV blue
information banner and the DIRECTV Receiver ID number 249784 on one
television.” (PPFF ¶¶ 36, 37). On this date, it is undisputed that there was no
DIRECTV commercial account for Hui’s Chinese Restaurant. (PPFF ¶ 44).
Count I of the Complaint alleges that the defendants violated certain
provisions of the Communications Act of 1934, 47 U.S.C. § 605 (“§ 605").
Count II alleges that the defendants violated Title 18 U.S.C. § 2511, and
Count III alleges a state law claim for civil conversion. DIRECTV moved for
summary judgment on Count I only.3
2.

LEGAL STANDARD
“The 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); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668
(7th Cir. 2011). “Material facts” are those under the applicable substantive
law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
3.

DISCUSSION
DIRECTV’s motion for summary judgment contends that the

undisputed facts establish that the defendants violated § 605 because they

3

DIRECTV’s motion is far from clear as to what specific counts it brings its
motion for summary judgment. However, the only law mentioned in its brief is
§ 605, and, therefore, the Court construes their motion as claiming summary
judgment as to Count I only.

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did not have the right to exhibit DIRECTV programing in a commercial
establisment. (Pl’s Opening Brief at 13). The defendants oppose the motion
and argue that factual disputes exist to preclude summary judgment, or, in
the alternative, that the Court should grant summary judgment for the
defendants because DIRECTV has “displayed their inability to prove their
allegations.” (Defs’ Opp. at 5). As discussed below, the Court finds that
factual issues exist precluding summary judgment, and, therefore, will deny
DIRECT’s motion.
Section 605, states, among other things, that “[n]o person not being
authorized by the sender shall intercept any radio communication and
divulge or publish the existence, contents, substance, purport, effect, or
meaning of such intercepted communication to any person.” 47 U.S.C.
§ 605(a).4 DIRECTV alleges that on April 22, 2014, the defendants, without
obtaining valid commercial exhibition rights, willfully received and
displayed DIRECTV Satellite Programming to the public and for commercial
benefit or financial gain. (Pl’s Opening Br. at 2).
In support of its motion, DIRECTV relies almost exclusively on the
evidence provided by its investigator who visited the restaurant on April 22,
2014, which includes a video of the visit. Although DIRECTV maintains this
evidence conclusively establishes the defendants’ liability, several factual
questions remain unaddressed that, in the end, preclude granting summary
judgment. First, the investigator took pictures outside the restaurant at
approximately 8:55 p.m., went inside to take a video, and left the
establishment at approximately 9:06 p.m. (Docket #20-1 at 2-3). From the

4

In United States v. Norris, 88 F.3d 462 (7th Cir. 1996), the Seventh Circuit
clarified that § 605 governs cable television programming that travels through the
air, such as a satellite. Id. at 468.

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video, the restaurant appears to be dark and empty except for the presence
of the defendants themselves, who appear to be cleaning. It is unclear
whether the restaurant was even open to the public at that time, although the
defendants admit the video was technically taken five minutes before closing.
(See Defs’ Opp. at 2).
Second, it is also unclear whether the defendants themselves
displayed the DIRECTV programing in the restaurant that evening or
whether the investigator turned on the programing. The video initially shows
that a Chinese program was playing; based on the video, however, it is
impossible to tell who turned on the television. Then, in the middle of the
video, the television channel is changed to a sports program, which the
defendants maintain they do not watch. As the defendants argue, at this
point in the video it is unclear whether the investigator changed the channel
or one of the defendants changed it. (Defs’ Opp. at 3). In contrast to
DIRECTV’s allegations, the defendants maintain that they “never exhibited
Directv programming to the public.” (Defs’ Opp. at 3).
The Court finds these disputed facts material to the outcome of this
suit because the investigator appears to be the entire source of DIRECTV’s
evidence regarding the defendants’ alleged violations. If a jury found that the
investigator entered the restaurant when it was constructively closed to the
public and turned on the DIRECTV satellite programing himself, the jury
would have reasonable basis to find in favor of DIRECTV. Thus, taking the
evidence in the light most favorable to the defendants, the Court finds that
genuine disputes exist regarding the material facts of this case. As such, the
Court is obliged to deny DIRECTV’s motion for summary judgment.

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4.

CONCLUSION
In sum, material issues of fact exist that preclude summary judgment

in this instance. As such, the Court will deny DIRECTV’s motion for
summary judgment and this case will proceed to trial as scheduled.
Accordingly,
IT IS ORDERED that DIRECTV’s motion for summary judgment
(Docket #19) be and the same is hereby DENIED, as more fully described in
detail above, and that this action proceed to trial; and
IT IS FURTHER ORDERED that the plaintiff’s unopposed motion to
dismiss the defendants’ counterclaim (Docket #10) be and the same is hereby
GRANTED.
Dated at Milwaukee, Wisconsin, this 15th day of January, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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