J&J Sports Prods., Inc. v. Patel

• Decision Date: 08 November 2018
• Docket Number: CV 5:17-066
• Citation: 364 F.Supp.3d 1368
• Parties: J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. Rupesh PATEL; Ohshy, Inc. d/b/a Hush a/k/a Peaches Sports Bar ; and Ngwebifor Fobi, Defendants.
• Court: U.S. District Court — Southern District of Georgia

364 F.Supp.3d 1368

J & J SPORTS PRODUCTIONS, INC., Plaintiff,

v.Rupesh PATEL; Ohshy, Inc. d/b/a Hush a/k/a Peaches Sports Bar ; and Ngwebifor Fobi, Defendants.

CV 5:17-066

United States District Court, S.D. Georgia, Waycross Division.

Signed November 8, 2018

Ronald D. Reemsnyder, Ragsdale, Beals, Seigler, Patterson & Gray, LLP, Dawsonville, GA, for Plaintiff.

Matthew Allen Pare, Pro Hac Vice, Law Office of Matthew Pare, APC, Chula Vista, CA, Jack Morris Downie, Law Office of Tipton-Downie, PC, Vidalia, GA, for Defendant Rupesh Patel.

Matthew Allen Pare, Law Office of Matthew Pare, APC, Chula Vista, CA, for Defendants Ngwebifor Fobi, Ohshy, Inc.

ORDER

HON. LISA GODBEY WOOD, JUDGE

Plaintiff filed this action seeking damages pursuant to the Communications Act of 1934, as amended, and the Cable Communications Policy Act of 1984, as amended. Before the Court is Defendants' Motion for Summary Judgment. Dkt No. 33. After the parties submitted supplemental briefing on this complex case, this Motion has been fully briefed and is ripe for review. For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part.

BACKGROUND

Hush a/k/a Peaches Sports Bar ("Peaches") is a business located in Waycross, Georgia. Dkt. No. 38-11 ¶ 1. Peaches is owned by Ohshy, Inc. Id. ¶ 3. Rupesh Patel is the president and general manager of Ohshy, Inc. Id. Ngwebifor Fobi worked at Peaches as a manager, employee, bartender, and marketing and promotions person. Id. ¶ 4. Fobi was not paid on a salary basis, but was paid by the tips she made, except that she sometimes received a bonus. Dkt. No. 38-6 at 4.

Plaintiff, J & J Sports Productions, Inc., is a distributor of sports and entertainment programming. Dkt. No. 38-1 ¶ 3. Plaintiff purchased and retained the exclusive commercial exhibition licensing rights to Miguel Cotto v. Sergio Martinez, SBC Middleweight Championship Fight Program (the "Program"), which was telecast nationwide on June 7, 2014. Id.; Id. at 10-16. The Program included the main event fight between Cotto and Martinez and many "undercard" fights. Id. ¶ 3. At no time did Plaintiff sublicense the right to display the Program to any of the Defendants. Id. ¶ 7.

On the night of the Program, Fobi was working at Peaches and used an internet search engine to find a website that was streaming the Program for free on the internet. Dkt. No. 38-11 ¶¶ 7, 8.¹ Fobi used her laptop computer to find and access the website. Id. Fobi's laptop was connected to television screens in the bar, and she showed the stream from the website on to the television screens in Peaches via this connection. Id. ¶ 6. The internet connection was provided by Great Lakes Data Vyve Broadband. Id. ¶ 12. Patel testified that Peaches did not have telephone lines, that Peaches had cable television, and that the internet connection was provided by the same cable company that provided Peaches with cable television. Dkt. No. 38-7 at 13, 21, 22.

Neither Fobi nor Patel paid a commercial licensing fee to show the Program at Peaches. Dkt. No. 38-8 at 4; Dkt. No. 38-7 at 6. Fobi testified that it was likely her idea to show the Program. Dkt. No. 38-6 at 5. Nevertheless, Fobi had authorization from Patel to show the Program without a commercial licensing fee, dkt. no. 38-8 at 4, and she would not have shown the Program without Patel's approval. Dkt. No. 38-6 at 7.² Prior to showing the Program, Fobi had talked with Patel about using a website to receive the Program. Id. at 3. Fobi advertised on Facebook and Twitter that Peaches would be showing the Program. Id.; Dkt. No. 38-6 at 6. Fobi tagged potential customers on the Facebook post advertising the Program. Dkt. No. 38-6 at 7. Fobi did not get explicit authorization to market Peaches' showing of the Program, but Patel knew that she generally posted to Facebook as part of her marketing duties without getting approval from him for the content of posts. Id. at 9.

Plaintiff hired a private investigator to go to Peaches on the night of the Program. Dkt. No. 33-6 at 20. The investigator saw the Program being broadcast on at least one television screen at Peaches. Id. Plaintiff avers that Defendants did not purchase from Plaintiff the right to display the Program commercially, and Plaintiff sued Defendants to recover damages under 47 U.S.C. § 553 and 47 U.S.C. § 605.

LEGAL STANDARD

Summary judgment is required where "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). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must show the court that there is an absence of evidence to support the nonmoving party's case.

Id. at 325, 106 S.Ct. 2548. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

The nonmovant may satisfy this burden in two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was ‘overlooked or ignored’ by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332, 106 S.Ct. 2548 (Brennan, J., dissenting) ). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more "than a repetition of his conclusional allegations, summary judgment for the [movant is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. Civ. P. 56(e) ).

Discussion

It is alleged that the internet was used by Defendants to receive the Program. Both sides argued whether the internet might or might not fall within either 47 U.S.C. §§ 553 or 605. However, the United States Supreme Court has recognized that there are numerous ways to transmit data over the internet, such as by cable modem service using cable lines, digital subscriber lines using local telephone wires, terrestrial-based wireless networks, and satellite-based wireless networks. Nat'l Cable & Telecommuns. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 975, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

Although the facts were submitted showing that the internet was used, the Court could not discern whether evidence in the record established the specific method of internet usage in this case and whether any evidence showed that Defendants utilized radio or a cable system by using the internet. As a result, the Court specifically invited each party to direct the undersigned to any evidence "that shows the means by which the data containing the Program was transmitted to Defendant Fobi's computer." Dkt. No. 45. Further, the parties were "invited to detail as specifically and technically as possible how that evidence" implicates either § 553 or § 605. Id."To be clear, the Court is searching the record for evidence (or the lack thereof) that the Program was received by Defendants over a cable system within the meaning of § 553, that the Program was a radio communication received by Defendants within the meaning of § 605, or that the Program was an intercepted radio communication within the meaning of § 605." Id.

In response, the parties reiterated their prior arguments. This Order does not hold that 47 U.S.C. § 605 can never be implicated through internet usage, nor that 47 U.S.C. § 553 is always implicated through internet usage. Rather, here the holding is limited to the conclusion that on this record sufficient evidence exists from which a reasonable jury could find that Defendants liable pursuant to 47 U.S.C. § 553.

I. The Statute of Limitations is Four Years

The Defendants argue that the action is time bared, so as an initial matter, the Court must determine the applicable statute of limitations. "Where a federal statute does not contain a limitations period courts should look to the most analogous state statute of limitations." Everett v. Cobb Cty. Sch. Dist., 138 F.3d 1407, 1409 (11th Cir. 1998) (citing Wilson v. Garcia , 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) ).³ Our sister court in the Northern District of Georgia has extensively explored this issue regarding 47 U.S.C. § 605. See DirecTV, Inc. v. Wright, 350 F.Supp.2d 1048 (N.D. Ga. 2004). The Wright court found that O.C.G.A. § 46-5-2, which provides for civil and criminal penalties for theft of telecommunication services,⁴ is substantially similar in substance and form to § 605. 350 F.Supp.2d at 1054. The Court adopts this analysis.

Likewise, § 553 is substantially similar in substance and form to O.C.G.A. § 46-5-2. Like the Georgia statute, § 553 provides for injunctive relief, compensatory damages, costs, and attorneys' fees. Compare O.C.G.A. § 46-5-2(b)(4)with, 47 U.S.C. § 553(c). Both statutes provide for criminal penalties. Compare O.C.G.A. § 46-5-2(b)(1)...