Joe Hand Promotions, Inc. v. Shepard

• Decision Date: 30 April 2015
• Docket Number: Case No. 4:12CV1728 SNLJ
• Citation: Joe Hand Promotions, Inc. v. Shepard, Case No. 4:12CV1728 SNLJ (E.D. Mo. Apr 30, 2015)
• Court: U.S. District Court — Eastern District of Missouri
• Parties: JOE HAND PROMOTIONS, INC., Plaintiff, v. STEPHEN SHEPARD, et al., Defendants.

JOE HAND PROMOTIONS, INC., Plaintiff, v. STEPHEN SHEPARD, et al., Defendants.

Case No. 4:12CV1728 SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

April 30, 2015

MEMORANDUM AND ORDER

This matter is before the Court on the parties' cross motions for summary judgment and defendants' motions to strike with regard to plaintiff's summary judgment documents.The motions are ripe for disposition.For the following reasons, the Court will deny defendants' motions and grant in part and deny in part plaintiff's motion.

I.Background

PlaintiffJoe Hand Promotions, Inc.("Joe Hand") filed this action against defendantSteve & Colleen's Sports Bar, Inc. d/b/a Zach's Sports & Grill ("Sports Bar") and Stephen Shepard alleging violations of the Federal Communications Act, 47 U.S.C. § 605 and the Cable & Television Consumer Protection and Competition Act, 47 U.S.C. § 553, as well as a claim for conversion under Missouri law, stemming from the telecast of "UFC 129: St-Pierre v. Shields" on April 30, 2011("Program") at the Sports Bar.DefendantSteve Shepard is identified as the President, Secretary, and sole Board Member of Steve & Colleen's Sports Bar, Inc.PlaintiffJoe Hand was granted the right to distribute the Program via closed circuit television and encrypted satellite signal.After it obtained the distribution rights to the Program, plaintiff entered into agreements with various entities and granted them the right to publicly exhibit the Program to their patrons.Plaintiff alleges that "with full knowledge that the [Program] was not to be received and exhibited by entities unauthorized to do so, Defendants and/or their agents, servants, workmen and/or employees unlawfully intercepted, received and/or de-scrambled said satellite signal, and did exhibit the [Program][at the Sport's Bar][ ] at the time of its transmission willfully and for purposes of direct or indirect commercial advantage or private financial gain."

Plaintiff's first claim is pursuant to the Unauthorized Publication or Use of Communications, 47 U.S.C. § 605.This statute prohibits the unauthorized interception of video programming from a satellite transmission.It provides for statutory damages "in a sum of not less than $1,000 or more than $10,000, as the court considers just."47 U.S.C. § 605(e)(3)(C)(i)(II).Where the "violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain," the statutory damages may be increased in an amount of not more than $100,000.47 U.S.C. § 605(e)(3)(C)(ii).Attorney's fees and costs are recoverable under this statute.47 U.S.C. § 605(e)(3)(B)(iii).

The second claim is under the Unauthorized Reception of Cable Services, 47 U.S.C. § 553.This statute prohibits the unauthorized receipt of programing from a cable service provider.47 U.S.C. § 553(a)(1).It provides for a civil action with statutory damages "in a sum of not less than $250 or more than $10,000 as the court considersjust."47 U.S.C. § 553(c)(3)(A)(ii).Where "the violation was committed willfully and for purposes of commercial advantage or private financial gain," the statutory damages may be increased in an amount of not more than $50,000.47 U.S.C. § 553(c)(3)(B).Attorney's fees and costs may also be recovered under this statute.47 U.S.C. § 553(c)(2)(C).

The third claim in this lawsuit is a state law conversion claim.

All parties filed motions for summary judgment.Defendants seek summary judgment as to all claims.Plaintiff seeks summary judgment as to the claims under § 605.

II.Motions to Strike

As a preliminary matter, the Court will address defendants' motions to strike the following summary judgment documents filed by plaintiff: cross motion for summary judgment, affidavits and exhibits supporting plaintiff's additional uncontroverted material facts, and reply memorandum."District courts enjoy broad discretion in enforcing their rules, but 'striking a party's pleadings is an extreme measure and . . . [m]otions to strike . . . are viewed with disfavor and are infrequently granted.'"Anzaldua v. Northeast Ambulance and Fire Protection Dist., 4:13CV1257 ERW, 2014 WL 466228, at *3(E.D. Mo.Feb. 5, 2014)(citing and quoting Stanbury Law Firm, P.S. v. I.R.S., 221 F.3d 1059, 1063(8th Cir.2000))."A 'court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.'"Id.(quotingFed.R.Civ.P. 12(f))."As is apparent from the language of Rule 12(f), a motion to strike may only be directed to material contained in a 'pleading.'"Id.(citingRule 12(f));see alsoColemanv. City of Pagedale, 2008 WL 161897 at *4(E.D. Mo.Jan. 15, 2008)."Pleadings are defined as: 1) a complaint; 2) an answer to a complaint; 3) an answer to a counterclaim designated as a counterclaim; 4) an answer to a cross claim; 5) a third-party complaint; 6) an answer to a third-party complaint; and 7) if the court orders one, a reply to an answer."Id.(citingFed.R.Civ.P. 7(a)).

"[T]here is no such thing as a 'motion to strike' - at least when the paper being targeted is a memorandum or affidavit submitted in connection with a motion for summary judgment."Id.(quotingCarlson Marketing Group, Inc. v. Royal Indemnity Co., 2006 WL 2917173, at *2(D. Minn.Oct. 11, 2006))."No such motion is authorized by the Federal Rules of Civil Procedure."Carlson, 2006 WL 2917173, at *2."Motions, briefs, memoranda, objections or affidavits may not be the subject of a motion to strike."Coleman v. City of Pagedale, 4:06CV1376 ERW, 2008 WL 161897, at *4(E.D. Mo.Jan. 15, 2008)(citingWilliams ex rel. McIntosh v. City of Beverly Hills, Mo, 4:07CV661 CAS, 2007 WL 2792490, at *2(E.D. Mo.Sept. 24, 2007)("motion to remand is not a pleading, and therefore may not be subject to a motion to strike"));see alsoAnzaldua, at *4("neither a memorandum nor an affidavit is a 'pleading'");2 James W. Moore, et al., Moore's Federal Practice§ 12.37[2]."Because [defendants'] motions are not directed to pleadings, the Court will not consider them as motions to strike."Stockdale v. Stockdale, 4:08CV1773 CAS, 2013 WL 1329593, at *1(E.D. Mo.Apr. 6, 2010).Although the motions to strike are procedurally incorrect, the Court will address the issues presented in the motions.

A.Cross Motion for Summary Judgment

Defendants move to strike the plaintiff's cross motion for summary judgment because it was filed after the deadline of January 30, 2015 for filing motions for summary judgment stated in the Case Management Order.Plaintiff filed its motion for summary judgment on February 18, 2015, at the same time it filed its response to the defendants' motion for summary judgment.¹Defendants have not alleged, nor does the Court find, any material prejudice resulting from the late filing of the plaintiff's motion only nineteen days after the deadline set in the CMO.Further, defendants have not alleged any authority in support of their position.The motion will be denied.

B.Plaintiff's Affidavits and Exhibits

Defendants move to strike plaintiff's affidavits submitted in support of its statement of additional uncontroverted material facts.Defendants argue that plaintiff did not reveal all of the statements contained in the affidavits in its interrogatory responses.In that regard, the Court will review the issue as a motion to exclude the affidavits under Rule 37 for failure to disclose the information in discovery.Rule 37(c)(1) provides, "If a party fails to provide information or identify a witness required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless."

Plaintiffs disclosed the affiants in response to defendants' interrogatories requesting the identity of all persons with information and knowledge with regard to the exhibition of the Program.The Court does not agree with defendants' contention that their interrogatory² required plaintiff to state every relevant fact known by the identified persons.The motion to exclude the affidavits will be denied.

Additionally, defendants argue that the affidavit of Joe Hand, Jr. includes expert testimony and opinions that should be excluded because he was not identified in response to defendants' interrogatories requesting identification, and the opinions, of retained and non-retained experts.Specifically, defendants argue that paragraph 9 of the affidavit offers expert testimony and opinions.Paragraph 9 states in part: "It is essential that I communicate to the court that to the best of my knowledge our programming is not and cannot be mistakenly, innocently, or accidently intercepted.Some methods that a signal pirate can unlawfully intercept and broadcast our programming are as follows . . . ."Paragraph 9 then goes on to identify methods to unlawfully intercept a broadcast including the use of a blackbox or smartcard to descramble a broadcast, misrepresentation by a commercial establishment as a residential property to allowpurchase of a broadcast at a residential rate, use of an illegal cable drop or splice, and the purchase of other illegal encryption devices.Defendants summarily conclude this is expert testimony without any discussion and without reference to any authority.Defendants' argument and briefing on this issue are insufficient.The affidavit of Joe Hand, Jr. offers fact testimony based on his knowledge as the President of Joe Hand Promotions, Inc. and the industry in which that business operates.Such testimony is different than testimony providing detail about the technical information as to how a blackbox descrambles reception of a broadcast, which would constitute expert testimony.Defendants' motion to exclude the affidavit as undisclosed expert testimony will be denied.

Defendants next argue that the affidavit of Cherie Hyman should be excluded...