The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
CROSS-MOTIONS FOR SUMMARY MEMORANDUM DECISION RE: JUDGMENT/SUMMARY and ADJUDICATION
Before the court are cross-motions for summary judgment or, in the alternative, summary adjudication brought by Plaintiff J & J Sports Productions, Inc. ("Plaintiff") and Defendant Frankie Jo Phelan ("Defendant"). Both motions are opposed. The following background facts are taken from the parties' submissions in connection with the motions and other documents on file in this case.*fn1
This case concerns the Super Featherweight Championship Fight between boxers Marco Antonio Barrera and Mzonke Fana televised on April 9, 2005 (the "Boxing Program"). Plaintiff is a closed- circuit distributor of sports and entertainment programming. Defendant is an individual resident of the Eastern District of California who formerly owned and operated "Frankie's," a neighborhood bar located in Madera, California.
Defendant was the lawful operator of Frankie's on the date of the fight and had a commercial cable account with Comcast. (Doc. 29-2 at 2; Doc. 32 at 3.) Defendant purchased the Boxing Program from Comcast for $39.99. (Doc. 29-2 at 2.) On April 9, 2005, Comcast provided the signal for the Boxing Progam and Defendant aired the fight at Frankie's. (Id.) Patrons of Frankie's watched the Boxing Program. Apparently, a private investigator hired by Plaintiff also watched the Boxing Program at Frankie's.
Prior to the fight, Plaintiff and Golden Boy Productions, Inc. ("Golden Boy") entered into a "Closed Circuit Television License Agreement" pursuant to which Plaintiff obtained "the exclusive license to exhibit," at "commercial closed-circuit television exhibition outlets," Golden Boy's "live telecast" of the Boxing Program. The License Agreement reads:
GOLDEN 'Promoter') hereby grants to J&J Sports Productions, BOY PROMOTIONS, INC. (referred to herein as Inc[.] ('J&J' or 'you' or "Licensee') the exclusive United States of America and the Commonwealth of Puerto license to exhibit, only within the fifty states of the [Boxing Program], Rico (the 'Territory'), Promoter's live telecast of the only at commercial closed-circuit television exhibition outlets clubs, lounges, restaurants and the like, each with a, such as theaters, bars, fire code (except for casinos), occupancy not located to exceed 500 persons per outlet exhibition rights granted herein do not include any within the Territory. The guest rooms, in-flight aircraft or other transportation rights in Mexico or Canada, or transmissions to hotel facilities. (Doc. 16-2, Ex. 1 at 1.)
The License Agreement permitted Plaintiff to sublicense exhibition rights to commercial closed-circuit television outlets. By contrast, the License Agreement contains a section on "Pay-Per-View Exhibitions" which specifies that Golden Boy, not Plaintiff, "shall license the live cable television and direct broadcast satellite television exhibition of the" Boxing Program "on a residential payper-per-view" basis and that Plaintiff "shall have no interest or participation in such [residential] pay-per-view exhibition." (Id. at 4 (emphasis added).)
On March 8, 2008, Plaintiff filed a three-count complaint against Defendant individually and doing business as Frankie's. The first count alleges a violation of 47 U.S.C. § 605, the second count alleges a violation of 47 U.S.C. § 553, and the third count alleges a claim for conversion under California law.
Plaintiff asserts that Defendant needed to purchase a sublicense from Plaintiff to lawfully obtain and exhibit the Boxing Program at Frankie's. Plaintiff contends that Defendant's purchase of the Boxing Program from Comcast is not dispositive. According to Plaintiff, Defendant paid the "residential" pay-per-view fee ($39.99) for the Boxing Program, not the applicable sublicense fee for exhibition at commercial establishments.
Plaintiff moves for summary judgment on its § 553 claim.
Plaintiff does not move for summary judgment on its § 605 or conversion claim. (See Doc. 16-2 at 2, 4-6.) Defendant moves for summary judgment on all Plaintiff's claims.
III. SUMMARY JUDGMENT/ADJUDICATION STANDARD
A party may move for summary judgment "on all or part of a claim." Fed. R. Civ. P. 56 (a) & (b). "The standards and procedures for granting partial summary judgment, also known as summary adjudication, are the same as those for summary judgment." Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). Summary judgment is appropriate when "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). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
Where the movant will have the burden of proof on an issue at trial, it must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (noting that a party moving for summary judgment on a claim as to which it will have the burden at trial "must establish beyond controversy every essential element" of the claim) (internal quotation marks omitted); Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 617 (2d Cir. 1998) (noting that where the moving party will bear the burden of proof, "its own submissions in support of the motion must entitle it to judgment as a matter of law"). With respect to an issue as to which the non-moving party will have the burden of proof, the movant "can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case." Soremekun, 509 F.3d at 984.
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the "non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Id. Likewise, "[a] non-movant's bald assertions or a mere scintilla of evidence in his [or her] favor are both insufficient to withstand summary judgment." FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). "[S]ummary judgment will not lie if [a] dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
"[T]he standards upon which the court evaluates the motions for summary judgment do not change simply because the parties present cross-motions." Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991). And simply because the parties present cross-motions for summary judgment on a claim does not mean that there must be a winner:
judgment does The fact that both parties have moved for summary as a matter of not law mean for that one the court must grant judgment judgment in favor of either party is not side or the other; proper if summary disputes remain as to material facts. Rather, the court must taking care in each instance to draw all reasonable evaluate each party's motion on its own merits, inferences against consideration. the party whose motion is under Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987) (internal citation omitted).
IV. DISCUSSION AND ANALYSIS
1. Defendant's Untimely Opposition With respect to Plaintiff's motion for summary judgment/adjudication, in Plaintiff's reply brief, Plaintiff objects to Defendant's opposition brief as untimely and requests that Defendant not be permitted to oppose the motion at oral argument. See Local Rule 78-230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party."). Plaintiff's motion for summary judgment/adjudication was filed on July 30, 2009, and the hearing on the motion was set for October 26, 2009.
According to Local Rule 78-230(c), Defendant's opposition to Plaintiff's motion was due not less than "fourteen (14) days" preceding the noticed hearing date. Fourteen days prior to the noticed hearing date, October 26, 2009, is Monday October 12, 2009, Columbus day, which is a legal holiday. Under Rule 6(a)(3), when the last day of a period falls on a legal holiday, "the period runs until the end of the next day that is not a Saturday, Sunday, [or] legal holiday." See also Local Rule 6-136. Accordingly, Plaintiff's opposition was due the Friday before Columbus day, October 9, 2009. Defendant's opposition was filed on October 16, 2009. Defendant concedes it was untimely filed.*fn2 Defendant's late opposition does not, however, end the inquiry.
Plaintiff raised the argument about Defendant's late opposition in Plaintiff's reply brief. As it turns out, Plaintiff's reply brief was untimely filed. According to Local Rule 78-230(d), a reply "to any opposition" is due not less than "five (5) court days preceding the date of hearing." (Emphasis added.) Five court days prior to the hearing date, October 26, 2009, is October 19, 2009. Plaintiff's reply brief was filed on October 21, 2009, past the deadline.
The time infractions committed by both sides are considered off-setting penalties. Plaintiff's untimely objection to Defendant's untimely opposition is DENIED.
1. Claim For Violation Of 47 U.S.C. § 553
Plaintiff moves for summary judgment only on its claim under 47 U.S.C. § 553.*fn3 Plaintiff argues that it has shown "by a preponderance of evidence that Defendant violated" 47 U.S.C. § 553. This section deals with cable communications. Section 553(a)(1)-(2) provides:
(a) Unauthorized interception or receipt or assistance in intercepting or receiving' defined intercepting or ...