J & J Productions Inc. v. Schmalz

• Decision Date: 17 September 2010
• Docket Number: Case No. C–1–09–305.
• Citation: 745 F.Supp.2d 844
• Parties: J & J PRODUCTIONS, INC., Plaintiffv.James R. SCHMALZ, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

745 F.Supp.2d 844

J & J PRODUCTIONS, INC., Plaintiff

v.James R. SCHMALZ, et al., Defendants.

Case No. C–1–09–305.

United States District Court, S.D. Ohio, Western Division.

Sept. 17, 2010.

Jeffrey L. Koberg, Ziegler Metzger & Miller, Cleveland, OH, for Plaintiff.

ORDER

TIMOTHY S. HOGAN, United States Magistrate Judge.

Before the Court is James R. Schmalz and AFB, Inc.'s Motion for Summary Judgment Against Plaintiff J & J Sports Productions, Inc. (Doc. 60), Plaintiff J & J Sports Productions, Inc.'s Brief in Opposition to Defendants' James R. Schmalz and AFB, Inc.'s Motion for Summary Judgment (Doc. 63), Defendants' Response to Plaintiffs' Brief in Opposition to Motion for Summary Judgment (Doc. 68). Also before the Court is Plaintiff J & J Sports Production, Inc.'s Motion for Summary Judgment (Doc. 62).

BACKGROUND

This case involves the boxing program entitled “The World Awaits”: De La Hoya v. Mayweather, Jr. which was broadcast on May 5, 2007. The program was promoted by Golden Boy Promotions which licensed the residential rights to broadcast the program to Home Box Office, Inc. (“HBO”). (Doc. 56, Ex, 3, Second Affidavit of Michael Berman at ¶ 11). HBO then sublicensed the program to iN Demand under an Event License Agreement, and iN Demand, in turn sublicensed the residential broadcast rights to Third Party Defendant, Time Warner Cable Company (“TWC”) through a non-written affiliation agreement. (Second Berman Aff. at ¶ 12; Doc. 58, Event License Agreement, at ¶ 1, filed under seal; Ex. 2, Affidavit of Michael Berman at ¶ 3). Under the terms of the Event License Agreement, should the boxing event be inadvertently sold to a commercial establishment, iN Demand, and TWC as its affiliate, would be responsible for the payment of a liquidated damage fee to HBO. (Event License Agreement, at ¶ 1).

Plaintiff, a commercial distributor of sporting events, purchased the exclusive commercial exhibition licensing rights to the program. (Doc. 2, Complaint at ¶ 13; Doc. 62, Affidavit of Joseph Gagliardi at ¶ 3, Doc. 63, Declaration of Jeffrey L. Koberg, attached). Plaintiff then entered into sub-licensing agreements with various commercial businesses to which it granted limited sublicensing rights to allow those businesses to broadcast the fight to their patrons. ( Id. at ¶ 14; Gagliardi Aff. at ¶ 3). The commercial fee to broadcast the program in a commercial establishment the size of Defendants' bar was $4,200.00. (Gagliardi Aff. at ¶ 8, Ex. 1).

On May 5, 2007, Defendants/Third Party Plaintiff James R. Schmalz and AFB, Inc. ordered the fight to be viewed at Defendants' place of business, The Back Porch Bar and Saloon. Defendants called Third Party Defendant Time Warner Cable Company (“TWC”), and requested pricing information regarding the fight. Defendant was designated as a commercial account with TWC since the inception of the account. (Doc. 60, Time Warner Cable Account Service Statement, attached). It is undisputed that, at no time, did Defendants possess a “black box” or any equipment used to steal or intercept cable service. (Doc. 56, Fender Aff. at ¶ 6). Defendants were informed by a TWC representative that the cost to broadcast the fight on one television set was $54.95. Defendants ordered the fight and had one television set for those patrons wishing to watch it. Defendants did not advertise for the fight, nor was there a cover charge to enter the premises to view the fight. At approximately 10 p.m., the fight was broadcast on one television set for those who wished to watch it. Defendants subsequently received a billing statement from Time Warner Cable at its place of business, listing the fight as an extra event purchased by the Bar at a cost of $54.95. Defendants then paid TWC the amount billed.

TWC contends that it inadvertently sold the program to Defendants, despite an internal TWC policy that prohibits the sale of boxing events like the De La Hoya fight to such bars. (Doc. 56, Ex. 1, Affidavit of Christopher Fender, at ¶ 4). TWC subsequently paid iN Demand the full amount of liquidated damages due under the terms of the Licensing Agreement. (Second Berman Aff. at ¶¶ 15, 16).

On May 4, 2009, Plaintiff filed the present action alleging that Defendants had illegally stolen, pirated and/or intercepted the cable signal and had illegally shown the fight to its patrons. (Doc. 2). Thereafter, Defendants sued TWC. (Doc. 29, Second Amended Third Party Complaint). Defendants/Third Party Plaintiffs contend that, should they be found liable to Plaintiff, TWC is liable to Defendants for contribution and equitable indemnification, fraud, fraudulent misrepresentation, negligent misrepresentation, and unjust enrichment. ( Id.).

OPINION

A motion for summary judgment should be granted if the evidence submitted to the court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

A party may move for summary judgment on the basis that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law. In response to a summary judgment motion properly supported by evidence, the non-moving party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987); Harris v. Adams, 873 F.2d 929, 931 (6th Cir.1989). Conclusory allegations, however, are not sufficient to defeat a properly supported summary judgment motion. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir.1990). The non-moving party must designate those portions of the record with enough specificity that the Court can readily identify those facts upon which the non-moving party relies. Karnes v. Runyon, 912 F.Supp. 280, 283 (S.D.Ohio 1995) (Spiegel, J.). “[A]fter a motion for summary judgment has been filed, thereby testing the resisting party's evidence, a factual issue may not be created by filing an affidavit contradicting [one's own] earlier deposition testimony.” Davidson & Jones Dev. Co. v. Elmore Dev. Co., 921 F.2d 1343, 1352 (6th Cir.1991).

The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505. In so doing, the trial court does not have a duty to search the entire record to establish that there is no material issue of fact. Karnes, 912 F.Supp. at 283. See also Street v. J.C Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989); Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988). The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505.

If, after an appropriate time for discovery, the opposing party is unable to demonstrate a prima facie case, summary judgment is warranted. Street, 886 F.2d at 1478 (citing Celotex and Anderson ). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In 1984, the Cable Communications Policy Act was enacted to “address ‘a problem which is increasingly plaguing the cable industry—the theft of cable service.’ ” National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900 (6th Cir.2001) (quoting H.R.Rep. No. 98–934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720). Plaintiff claims that Defendants violated two statutory provisions of the Act by illegally intercepting and broadcasting the De La Hoya fight at their commercial establishment, The Back Porch Saloon. As an initial matter, Plaintiff points out that the Sixth Circuit has not determined whether liability may be found under both statutes. However, because we find § 605 inapplicable to the present facts, as discussed below, we find that such a determination is unnecessary.

47 U.S.C.S. 605(a)

47 U.S.C. § 605 provides in pertinent part that,

Except as authorized by chapter 119, Title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. No 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. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit...