United States District Court, E.D. Pennsylvania
J&J SPORTS PRODUCTIONS, INC. Plaintiff,
MARK BROADNAX, individually and d/b/a CHE'S BAR & GRILL a/k/a CHENAX; CHENAX, INC
RONALD L. BUCKWALTER, Senior District Judge.
Currently pending before the Court is the Motion for Summary Judgment by Plaintiff J&J Sports Productions, Inc. For the following reasons, the Motion is denied.
I. FACTUAL BACKGROUND
A Championship Fight Program, "Star Power": Floyd Mayweather, Jr. v. Victor Ortiz, WBO Welterweight Championship Fight Program, was telecast nationwide via closed-circuit television on Saturday, September 17, 2011 (the "Program"). (Pl.'s Statement of Undisputed Facts ("PSUF") ¶ 1; Defendants' Response to Statement of Undisputed Facts ("DRSUP" ¶ 1.) Plaintiff was granted the exclusive commercial distribution rights to the Program, which encompassed all undercard events as well as the main events. (PSUF ¶ 2; DRSUP ¶ 2.) Plaintiff thereafter marketed the sub-licensing (commercial exhibition) rights to its commercial customers. (Affidavit of Joseph Gagliardi ("Gagliardi Aff."), ¶ 3, Sept. 24, 2014.) The Program was legally available to commercial establishments only through an agreement with Plaintiff. (Id. ¶ 3.) Those establishments had to pay a commercial sublicense fee to broadcast the Program based on the capacity of the establishment. (Id. ¶ 8.) The commercial fee to broadcast the Program for an establishment the size of Che's Bar and Grill a/k/a Chenax was $2, 200. (Id. ¶ 8.)
At all times relevant to this litigation, Defendant Che Nax, Inc. owned and operated the commercial establishment doing business as Che's Bar and Grill a/k/a Chenax, located at 6364 Stenton Avenue, Philadelphia, Pennsylvania. (PSUF ¶ 3; DRSUP ¶ 3.) Defendant Mark Broadnax was the President and sole shareholder of Che Nax, Inc., as well as the manager of the establishment, at the time of the broadcast of the Program. (PSUF ¶ 4; DRSUP ¶ 4.) In addition, Broadnax was identified as the President, Secretary/Treasurer, Director, Stockholder, and Manager/Steward of Che Nax, Inc. on the liquor license issued to Che Nax, Inc. for its commercial establishment Che's Bar and Grill. (PSUF ¶ 6; DRSUP ¶ 7.) He was also listed as President of Che Nax, Inc. on the Business Entity Filing History. (PSUF ¶ 7; DRSUP ¶ 7.) Defendant Broadnax was present and inside the establishment on the night that the Program was telecast nationwide. (PSUF ¶ 5 DRSUP ¶ 5.) Plaintiff did not sublicense the Program to either Defendant Mark Broadnax-individually and doing business as Che's Bar and Grill, also known as Chenax-or Che Nax, Inc. doing business as Che's Bar and Grill, also known as Chenax (collectively "Defendants"). (Gagliardi Aff. ¶ 7.)
Facing serious erosion in the sales of its proprietary programming to commercial customers, Plaintiff embarked upon a nationwide program to police signals in order to identify and prosecute commercial establishments that pirated its programming. (Id. ¶ 5.) To do so, it retained auditors and law enforcement personnel to detect and identify pirate signals. (Id. ¶ 6.) Plaintiff's programming cannot be mistakenly, innocently, or accidentally intercepted because its programming is encrypted and it is only after Plaintiff authorizes a commercial activation that a commercial establishment may broadcast the signal. (Id. ¶ 9.) There are, however, several methods by which a signal pirate can unlawfully intercept and broadcast Plaintiff's programming, including: use of a "blackbox, " "hotbox, " or "pancake box"; use of a "smartcard, " "text card, " or "programming card;" purposeful misrepresentation of a commercial establishment as a residential property to allow fraudulent purchase at the residential rate; the use of an illegal cable drop or splice from an adjacent apartment or home; or the purchase of other illegal unencryption devices or illegal satellite authorization codes. (Id. ¶ 10.)
On September 17, 2011, the night of the Program broadcast, a private investigator by the name of David E. Callis, was hired by Plaintiff to visit the premises at 6364 Stenton Avenue, Philadelphia, PA. (Pl.'s Mot. Summ. J., Aff. of David Callis ("Callis Aff."), April 11, 2012.) Investigator Callis entered the premises at 9:00 p.m. and paid a $5.00 admission charge. (Id.) He counted twelve patrons in the establishment and noticed three televisions for viewing. (Id.) He stated as follows:
I observed all three television sets tuned to the under card of the Floyd Mayweather/Victor Ortiz PPV event billed STAR POWER. I specifically observed the bout between Jessie Vargas and Josesito Lopez. The fight was in the 1st round. Lopez had on gold and white trunks. Vargas had on red and white trunks. The ring mat displayed the TECATE logo in red and the ring posts were marked MGM.
(Id.) He did not indicate how long he was in the bar. (Id.)
According to Defendants, the bar collected a cover charge at the door every Friday and Saturday night, including the night of September 17, 2011. (Affidavit of Mark Broadnax ("Broadnax Aff") ¶ 5, Feb. 20, 2015.) They assert that the establishment did not, at any time, either with or without Broadnax's authorization, broadcast or otherwise publish Plaintiff's program, "Star Power": Floyd Mayweather, Jr. v. Victor Ortiz WBO Welterweight Championship Fight Program. " (Id. ¶ 6.) Further, Defendants contend that their cash and credit card records reveal no corresponding increase in revenues on the weekend of the Program showing compared to other weekend revenues when no Program was aired by Plaintiff. (Id. ¶ 16.)
Plaintiff instituted the current litigation on September 13, 2013, setting forth three counts as follows: (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; and (3) conversion. On February 6, 2015, Plaintiff filed the current Motion for Summary Judgment. Defendants submitted their Response on February 20, 2015, and Plaintiff filed a Reply Brief on March 2, 2015. The Motion is now ripe for judicial consideration.
II. STANDARD OF REVIEW
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine, " a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. ...