Joe Hand Promotions, Inc. v. Roger Kay E&R Spirits, LLC
| Decision Date | 03 August 2016 |
| Docket Number | Civ. No.15-00100-MV-KBM |
| Parties | Joe Hand Promotions, Inc., Plaintiff, v. Roger Kay E&R Spirits, LLC, Estrella Promotions, Inc., and Gene Chavez and Aidee Rueda Defendants. |
| Court | U.S. District Court — District of New Mexico |
Appearances:
For the Plaintiff:
DATHAN WEEMS
118 Wellesley Dr., SE
Albuquerque, NM 87106
For the Defendants:
Roger Kay and E&R Spirits, LLC:
LEEANN WERBELOW
MATTHEW B. LANDESS
LASTRAPES, SPANGLER & PACHECO, PA
333 Rio Rancho Dr.
Suite 401
Rio Rancho, NM 87124
Estrella Promotions, Inc., Gene Chavez and
Aidee L. Rueda:
GENE N. CHAVEZ (pro se)
CHAVEZ LAW OFFICES PA
1220 5th St. NW
Albuquerque, NM 87102
MEMORANDUM OPINION AND ORDERTHIS MATTER comes before the Court on Defendants Gene Chavez and Aidee Rueda's (the "Individual Defendants") Motion for Summary Judgment, filed on February 5, 2016 [Doc. 39]. Plaintiff Joe Hand Promotions, Inc. ("Joe Hand" or "Joe Hand Promotions"), filed a Response in Opposition on February 22, 2016 [Doc. 41]. The Individual Defendants did not file a reply, and instead filed a notice that their briefing was complete as of April 19, 2016 [Doc. 45]. The facts in this matter are largely not in dispute for the purpose of this motion, and the primary question of law before this Court is whether, as a matter of first impression, the standard applied in the context of copyright law for "piercing the corporate veil" should also be applied in cases of broadcast piracy.
The Court, having considered the motions, briefs, and relevant law, agrees with the majority of federal courts that the copyright standard should apply to broadcast piracy and consequently finds that the Individual Defendants' Motion will be DENIED.
This case is one of a string of federal cases in this district and across the country that seeks to enforce federal broadcast piracy laws against the owners of bars that unlawfully stream sporting events to their patrons. See, e.g., Joe Hand Promotions, Inc. v. Clark, No. 16-2154, 2016 WL 3124854 (D. Kan. June 3, 2016); Joe Hand Promotions, Inc. v. C.J.'s Sports Bar, LLP, No. 13-02402, 2014 WL 4636421 (D. Colo. Sept. 16, 2014); Joe Hand Promotions, Inc. v. Dugout, LLC, No. 13-00821, 2013 WL 5323403 (D. Colo. Sept. 23, 2013); Joe Hand Promotions, Inc. v. Kunkel, No. 11-171, 2012 WL 3156851 (E.D. Okla. Aug. 3, 2012); Joe Hand Promotions, Inc. v. Ducummon, No. 11-278, 2012 WL 1410262 (N.D. Okla. Apr. 23, 2012).
The question presented in the instant Motion for Summary Judgment is: what standard should apply when holding an individual corporate owner or officer liable for corporate misconduct under federal broadcast piracy laws? Defendants assert that the heightened standard used in Joe Hand Promotions, Inc. v. Sharp, is most applicable. 885 F. Supp. 2d 953, 956 (D. Minn. 2012) (). Joe Hand Promotions argues that the lower standard used in an unpublished case from the District of Colorado should be applied. See DIRECTV, LLC v. Taylor, No. 13-2551, 2014 WL 3373448, at *2 (D. Colo. July 10, 2014) (). Federal courts are split on the issue (see infra) and this appears to be a matter of first impression unaddressed by the Tenth Circuit.
Copa Cabana Nightclub is a bar in Albuquerque, New Mexico located at 4100 Central Ave, SE. Doc. 41-1, Investigator Affidavit, at 1. Estrella Promotions, Inc. owns Copa Cabana Nightclub. Doc. 41, Opp. to MSJ, at 2, ¶ 1. Estrella Promotions, Inc. is incorporated in the State of New Mexico. Doc. 39, Defs. MSJ, at 1 ¶ 2; Doc. 41, Opp. to MSJ, at 2, ¶¶ 1-3. The Individual Defendants jointly own and operate Estrella Promotions, Inc. Doc. 41, Opp. to MSJ, at 2, ¶¶ 2-7. On February 23, 2013, the Ultimate Fighting Championship ("UFC") Women's Bantamweight Championship between Rhonda Rousey and Liz Caramouche (the"Championship Fight") was displayed in Copa Cabana Nightclub. Doc. 41, Opp. to MSJ, at 2, ¶ 1.
Joe Hand Promotions is a commercial distributor of television sporting events such as the Championship Fight and is a Pennsylvania corporation headquartered in Pennsylvania. Doc. 16, 1st Amend. Compl., at 2 ¶ 8. Doc. 41, Opp. to MSJ, at 1. Joe Hand Promotions alleges that it paid for and received exclusive nationwide television distribution rights to the Championship Fight. Doc. 16, 1st Amend. Compl., at 2 ¶ 10; Doc. Doc. 41, Opp. to MSJ, at 1. Joe Hand Promotions further alleges that Roger Kay E&R Spirits, LLC, Estrella Promotions, Inc., and Gene Chavez and Aidee Rueda ("Defendants"), without paying the required fee, showed the Championship Fight at the Copa Cabana Night Club on February 23, 2013 in violation of 47 U.S.C. § 605 and 47 U.S.C. § 553. Doc. 16, 1st Amend. Compl., at 2 ¶¶ 13-14; Doc. 41, Opp. to MSJ, at 1. Defendants dispute these allegations. See Doc. 21, Answer to 1st Amend. Compl., at 3 ¶¶ 13-14.
The Individual Defendants are represented by Mr. Chavez, an attorney, pro se. See Doc. 21, Answer to 1st Amend. Compl., at 1.
Joe Hand Promotions initiated this lawsuit on February 5, 2015. Doc. 1, Compl. On June 30, 2015, Joe Hand Promotions filed its First Amended Complaint for Violation of the Cable & Television Consumer Protections and Competition Act of 1992 and common law conversion. Doc. 16, 1st Amend. Compl. The First Amended Complaint alleges that Joe Hand Promotions is entitled to up to $100,000 in damages for Defendants' commercial display of the Championship Fight under 47 U.S.C. § 605 (plus attorney fees) (Count I), up to $50,000 in damages (plus attorney fees) for Defendants' commercial display of the Championship Fightunder 47 U.S.C. § 553 (Count II), and the entire value of the profits received for the commercial display of the fight under the doctrine of conversion (Count III). Doc. 16, 1st Amend. Compl., at 3-4. The Court exercises jurisdiction over the conversion claim under the Court's supplemental jurisdiction over pendant claims. 28 U.S.C. § 1367.
On July 15, 2015, E&R Spirits, LLC and Roger Kay filed their Answer to Amended Complaint and Crossclaim Against the Individual Defendants and Estrella Promotions, Inc. Doc. 17, Answer to 1st Amended Complaint and Crossclaim.2 On October 2, 2015, the Individual Defendants and Estrella Promotions, Inc. filed their Answer to Amended Complaint. Doc. 21, Answer to 1st Amended Complaint.
After a rocky start to discovery that included numerous false starts, improper appearances, and at least one show-cause hearing, see Docs. 6, 12, 18-20, 22, and 28-35, United States Chief Magistrate Judge for the District of New Mexico, Karen B. Molzen, scheduled the close of discovery for May 16 of 2016. Doc. 33, Scheduling Order.
On February 5, 2016, the Individual Defendants moved for summary judgment on the theory that they could not be held individually liable for the acts committed by their corporation, Estrella Promotions, Inc. Doc. 39, MSJ, at 3-5. Joe Hand Promotions filed a Response in Opposition on February 22, 2016 that explained its theory of individual liability. Doc. 41, Doc. 41, Opp. to MSJ, at 3-5. The Individual Defendants did not file a reply, and instead filed a notice that the briefing was complete as of April 19, 2016. Doc. 45, Notice of Briefing Complete.
Summary judgment is appropriate "if 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); Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1290 (10th Cir. 1999). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.
Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The moving party need not negate the nonmovant's claim, but rather must show "that there is an absence of evidence to support the nonmoving party's case." Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets its initial burden, the nonmoving party must show that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1991) (citation omitted). The nonmoving party cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment, see Pueblo v. Neighborhood Health Ctrs., Inc., 847 F.2d 642, 650 (10th Cir. 1988), but rather must "go beyond the pleadings and by [its] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citation omitted).
Upon a motion for summary judgment, the Court "must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence." Kaus v. Standard Ins. Co., 985 F. Supp. 1277, 1281 (D. Kan. 1997), aff'd, 162 F.3d 1173 (10th Cir. 1998). If there is no genuine issue of material fact in dispute, then a court must next determine whether the movant is entitled to judgment in its favor as a matter of law. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996); Celotex, 477 U.S. at 322.
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