Directv, Inc. v. Pahnke

• Decision Date: 12 December 2005
• Docket Number: No. 103CV06246OWWSMS.,103CV06246OWWSMS.
• Citation: 405 F.Supp.2d 1182
• Court: U.S. District Court — Eastern District of California
• Parties: DIRECTV, INC., Plaintiff, v. Scott PAHNKE, et al., Defendants.

405 F.Supp.2d 1182

DIRECTV, INC., Plaintiff, v. Scott PAHNKE, et al., Defendants.

No. 103CV06246OWWSMS.

United States District Court, E.D. California.

December 12, 2005.

COPYRIGHT MATERIAL OMITTED

Alan J. Kessel, Keli N. Osaki, Buchalter, Nemer, Fields & Younger, Irvine, CA, for Plaintiff.

Scott Pahnke, Fresno, CA, Pro se.

ORDER GRANTING DEFENDANT'S UNOPPOSED PARTIAL MOTION FOR SUMMARY JUDGMENT (DOC. 57)

WANGER, District Judge.

I. INTRODUCTION

This is one of many civil anti-piracy cases brought by DIRECTV, Inc., ("Plaintiff") in this district. In this case, Plaintiff alleges that Defendant SCOTT PAHNKE intercepted DIRECTV satellite programming in violation of the Federal Communications Act of 1934 ("FCA"), 47 U.S.C. § 605; the Electronic Communications Privacy Act, also known as the Wiretap Act, 18 U.S.C. §§ 2510-2521 ("Wiretap Act"); and California common law.

Defendant, appearing pro se, answered the complaint and filed several other motions during the early stages of this litigation, including a successful motion to dismiss one of the counts. However, for the past several months, Pahnke has, after being given opportunities to do so, failed to respond to any communications from Plaintiff's counsel, failed to appear for several scheduling conferences, and failed to make initial disclosures or respond to any discovery requests. The district court sanctioned Defendant for this conduct by "precluding him from using any evidence to respond to any dispositive motion or at trial that he should have provided as part of his initial disclosures." (Doc. 52.) Despite affording Defendant two opportunities to defend the case, Mr. Pahnke appears to have abandoned any defense of the case and has failed to communicate with Plaintiff's counsel or the court.

On October 11, 2005, Plaintiff moved for summary judgment. (Doc. 57.) Defendant has filed no opposition or statement of non-opposition, nor has he filed any other responsive documents. Efforts to locate Mr. Pahnke have been unsuccessful.

II. STATEMENT OF FACTS

DIRECTV is a direct broadcast satellite television service that offers programming to residential and business customers on a subscription and pay-per-view basis only. (Whalen Decl. ¶ 5.) DIRECTV encrypts its satellite transmissions to prevent unauthorized viewing of its programming. In order to receive and view DIRECTV programming, each customer must establish an account with DIRECTV and obtain DIRECTV satellite hardware (including a small satellite dish, a DIRECTV integrated receiver/decoder ("IRD"), and a DIRECTV Access Card). (Id.)

A number of entities and individuals manufacture and sell illegal devices that are capable of overcoming DIRECTV's encryption technology and security measures (so called "Pirate Access Devices"). (Id. at ¶ 12.) On May 25, 2001, a raid was executed at the shipping facility used by several major sources of Pirate Access Devices, including White Viper Technologies ("White Viper"). Sales records obtained during and subsequent to those raids revealed that Defendant purchased five (5) illegal Pirate Access Devices from White Viper: one (1) programmer primarily designed to illegally modify DIRECTV Access Cards called a "Viper Smart Card Reader/Writer"; two (2) programmers primarily designed to illegally modify DIRECTV Access Cards, called "Viper Reader/Writers"; and two (2) circuit board devices, called "Viper Super Unloopers" from White Viper. (Id. ¶¶ 25 & 26; Exh. "A" to the Whalen Decl.).

The "Viper Smart Card Reader/Writer" and "Viper Reader/Writers" are designed, marketed, and used to program valid DIRECTV Access Cards for the sole purpose of obtaining access to DIRECTV Satellite Programming without paying DIRECTV. For example, the programmer may be used (i) to "clone" Access Cards, enabling an unactivated Access Card to decrypt the same programming as a particular authorized (or activated) Access Card; or (ii) to program Access Cards to receive all DIRECTV programming, including pay-perview events, without payment to DIRECTV. (Whalen Decl. ¶ 28).

The "Viper Super Unloopers" purchased by Defendant are also used to gain unauthorized access to DIRECTV satellite programming without payment to DIRECTV. Specifically, an "unlooper" is designed to restore illegally modified DIRECTV access cards that have been disabled by misuse or by DIRECTV's electronic security measures commonly referred to as Electronic Counter Measures or "ECMs." (Id. at ¶ 27.) DIRECTV sends ECM by satellite to disable DIRECTV access cards that are being used illegally to receive DIRECTV programming without authorization. Once these cards are disabled or "looped," they no longer allow free viewing of DIRECTV programming, unless another electronic device is used to "unloop" the card to restore its (illegal) functionality. (Whalen Decl. ¶ 27).

Defendant admitted purchasing and using each of the subject devices. (Osaki Decl. ¶¶ 4 & 5; Exh. "C".) Moreover, Defendant possessed the necessary DIRECTV equipment to intercept its satellite signal without authorization by or payment to DIRECTV. Specifically, on or about March 11, 2000, Defendant purchased DIRECTV satellite equipment. This equipment was activated on or about March 30, 2000. (Whalen Decl. ¶ 30; Exh. "B"; Osaki Decl. ¶¶ 4 and 5(h); Exh. "C".)

III. PROCEDURAL HISTORY

On September 12, 2003, DIRECTV filed a complaint against Defendant Pahnke and three other individuals, alleging that each of the defendants purchased "Pirate Access Devices" capable of decrypting DIRECTV's encrypted satellite television programming and used the devices to receive DIRECTV's programming without authorization, in violation of several federal anti-piracy statutes. (Doc. 1.)

Pahnke answered on February 24, 2004, Doc. 13, and appeared for a scheduling conference on March 19, 2004. (See Doc. 19.) At that conference, the district court noted that DIRECTV may have misjoined Defendants "who have no relation to each other factually or legally." The district court then issued an order to show cause why "DIRECTV, Inc., and its [prior] attorneys should not be sanctioned for misjoining parties, after having been ordered not to do so in other districts of the United States." (Id. at 2.) DIRECTV responded to the order. (Docs. 20 & 21, filed Apr. 2, 2004.) Pahnke also filed a reply concerning the order to show cause. (Doc. 22, filed Apr. 13, 2004.) On May 7, 2004, the district court dismissed the claims against Defendants Santos and Vasquez, subject to re-filing, on the grounds that they had been misjoined. (Doc. 25.) The district court also ordered prior counsel for DIRECTV to show cause why she should not be sanctioned for lack of candor and misciting legal authority to the court. (Id.)

DIRECTV responded to this second order to show cause on June 18, 2004. On August 18, 2004, the district court found there had been no violation and declined to impose sanctions against DIRECTV or its prior counsel.

Defendant Pahnke then moved to dismiss Count III of the complaint on the grounds that no private cause of action is available for a violation of 18 U.S.C. § 2512, a criminal statute. (Doc. 31, filed Aug. 31, 2004.) DIRECTV filed a notice of non-opposition, (Doc. 33, filed Sept. 8, 2004), and Count III was dismissed against Defendant Pahnke, (Doc. 36, filed Sept., 22).

Then, Defendant Pahnke stopped participating in this litigation. Plaintiff's new counsel attempted to contact Defendant on November 22, 2004 "to request Defendant's input and cooperation to prepare and file a Joint Scheduling Report." (See Doc 46, Shah Decl., Ex. A.) Pahnke did not respond to the letter, and failed to appear at the December 3, 2004 scheduling conference. (See Doc. 41 and Shah Decl. at ¶ 4.) The court set a scheduling conference date. Defendant Pahnke again failed to appear at the rescheduled conference date. (See Doc. 42, filed Jan. 5, 2005.) The district court again continued the scheduling conference, on the condition that Defendant first serve initial disclosures as required by Federal Rule of Civil Procedure 26(a), on or before February 5, 2005. (Doc. 43, filed Jan. 7, 2005.) DIRECTV mailed the Scheduling Conference Order to Defendant at his work and residential addresses. (Shah Decl. ¶ 6, Exh. D.)

In reference to Defendant's failure to file his initial disclosures and to participate in the status conference, the district court authorized DIRECTV to "take such steps as it deems necessary and appropriate." (Doc. 43 at 2.) On March 28, 2005, Plaintiff filed a motion requesting the imposition of Rule 37 sanctions for Defendant Pahnke's "unjustified and continuous failure to comply with his discovery and case management obligations." (Doc. 46.) The district court issued an evidentiary sanction under Rule 37 prohibiting Defendant from introducing evidence in any proceeding in this case, regarding witnesses, documents, or information that Defendant should have included in his initial disclosures. (Doc. 52.) The district court also ordered Defendant to pay monetary sanctions in the amount of $4,438.00 for attorney's fees incurred by DIRECTV to pursue the motion for sanctions. (Id.) Plaintiff moved for summary judgment on October 11, 2005. (Doc. 57.)

IV. STANDARD OF REVIEW

Summary judgment is proper "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 a judgment as a matter of law." Fed. R.Civ.P. 56(c). Even in an unopposed motion for summary judgment, the moving party nevertheless bears the burden of showing it is entitled to judgment as a matter of law.

V. DISCUSSION

A. Defendant's Failure to Respond to Plaintiff's Request for Admission.

On August 5, 2005, Plaintiff served requests for admission upon Defendant. (Osaki Decl. ¶ 4.) His response was due September 7, 2005. As of December 1, 2005, Defendant had not filed any response. Absent any...