United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion for
Summary Judgment, filed September 1, 2016. (ECF No. 14). The
motion is fully briefed and ready for disposition.
J & J Sports Productions, Inc. owned the nationwide
television distribution rights to “Manny Pacquiao
v. Timothy Bradley II, WBO Welterweight
Championship”, a telecast which took place on
April 12, 2014. (Compl., ¶ 9). Plaintiff sold the right to
exhibit the Program publically to various commercial
establishments, including hotels, racetracks, casinos, bars,
taverns, restaurants, and social clubs. (Id., ¶
10). According to Plaintiff, Defendants Two of a Kind 2, LLC,
and Jesse C. Washington (“Washington”) illegally
intercepted the Program, and showed it to patrons at the Two
Of A Kind 2 bar located at 6029 Natural Bridge Avenue, St.
Louis, MO, 63120. (Id., ¶¶ 6, 12).
respect to Washington Plaintiff alleges, upon information and
belief, that he “is/was [the] owner, and/or operator,
and/or licensee, and/or permittee, and/or person in charge,
and/or individual with dominion, oversight and management of
the commercial establishment doing business as Two Of A Kind
2 Lounge.” (Compl., ¶ 7). Defendants counter with
a sworn declaration from Washington, in which he attests that
while he owned the property located at 6029 Natural Bridge
Avenue, at all relevant times the property was leased to Mr.
John Nails (“Nails”), the sole operator and
manager of the Two Of A Kind 2 bar. (Defendants' Motion for
Summary Judgment, att. Exh. D, ¶¶ 3, 4). Washington
further states that he had no involvement with or knowledge
of the Program referenced in Plaintiff's Complaint, and
that neither he nor anyone acting on his behalf was present
at the Two Of A Kind 2 bar on April 12, 2014. (Id.,
¶¶ 5, 9). Plaintiff has not presented any facts to
contradict Washington's assertions, but has presented
evidence tending to confirm that he was the owner of the
premises, and the sole owner of the corporate Defendant, Two
Of A Kind 2, LLC. (Plaintiff's Memorandum in Opposition
to Defendants' Motion for Summary Judgment
(“Plaintiff's Opp.”), P. 4 and att. Exh. C).
filed the instant Complaint on November 25, 2015, asserting
claims for violation of the Unauthorized Reception of Cable
Services statute, 47 U.S.C. § 553 (Count I),
violation of the Unauthorized Publication or Use of
Communications statute, 47 U.S.C. § 605 (Count II), and
state law conversion (Count III). (Id., ¶¶
8-25). The Counts are all directed at the actions of
stated above, Defendants filed the instant Motion for Summary
Judgment on September 1, 2016, claiming (1) that Washington
may not be held individually liable, and (2) that Two Of A
Kind 2, LLC may not be held liable because there exists no
evidence of unlawful interception of a radio or cable
transmission. (ECF No. 14).
Court may grant a motion for summary judgment if, “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The substantive law
determines which facts are critical and which are irrelevant.
Only disputes over facts that might affect the outcome will
properly preclude summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment
is not proper if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id.
moving party always bears the burden of informing the Court
of the basis of its motion. Celotex, 477 U.S. at
323. 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 “mere existence of some alleged factual
dispute.” Fed.R.Civ.P. 56(e); Anderson, 477
U.S. at 247. The nonmoving party may not rest upon mere
allegations or denials of its pleadings. Anderson,
477 U.S. at 256.
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255. The Court's function
is not to weigh the evidence, but to determine whether there
is a genuine issue for trial. Id. at 249.
Individual Liability For Washington
noted above, Counts I and II of Plaintiff's Complaint
allege that Washington is liable under 47 U.S.C. § 605,
and 47 U.S.C. § 553, both of which prohibit cable
piracy. Counts I and II do not distinguish between
Washington's alleged actions and those of Two Of A Kind
2, LLC. (See Complaint, ¶¶ 12-16, 18-21
(making allegations only against the
“Defendants”)). The Complaint ...