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J & J Sports Productions, Inc v. Armando Rios Torres

March 5, 2012

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
ARMANDO RIOS TORRES, INDIVIDUALLY AND D/B/A CAVOUR CLUB, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court in this satellite and cable signal piracy case is plaintiff's motion for partial summary judgment (Dkt. No. 33).*fn1 Plaintiff seeks summary judgment regarding defendant's liability as to plaintiff's claims seeking relief for: (1) an alleged violation of 47 U.S.C. § 553; (2) an alleged violation of 47 U.S.C. § 605; and (3) the tort of conversion under California law.*fn2

Attorney Gary Decker specially appeared on behalf of plaintiff's counsel of record, Thomas P. Riley.*fn3 Defendant, who is proceeding without counsel, appeared and represented himself.

Plaintiff's motion almost entirely relies on its requests for admission to defendant that it contends were deemed admitted by defendant's failure to answer. In opposing the motion for partial summary judgment, defendant now seeks relief from the deemed admissions pursuant to Federal Rule of Civil Procedure 36(b). Despite defendant's failure to notice his request for a separate hearing, the undersigned has considered defendant's request. Plaintiff did not file a reply brief in support of its motion for partial summary judgment, which might have responded to defendant's request for relief from the deemed admissions. However, plaintiff filed an opposition to defendant's requested relief late on February 29, 2012, and the undersigned has considered that opposition in fairness to plaintiff (Dkt. No. 37). Upon review of the parties' briefs, oral arguments, and appropriate portions of the record, the undersigned grants defendant's request for relief from his deemed admissions. At the hearing, the undersigned ordered defendant to serve amended responses to plaintiff's requests for admission no later than March 2, 2012.

Plaintiff argues that even assuming the court does not rely on the deemed admissions, plaintiff is entitled to partial summary judgment based on the evidence in the record. Plaintiff's argument is not well-taken because defendant has presented sworn affidavits and declarations that raise a genuine dispute of material fact concerning whether the alleged pirating of a satellite or cable signal actually occurred. Defendant also raises a genuine dispute regarding the credibility of the representations of plaintiff's private investigator, Jessica Haverty, regarding the alleged signal piracy.*fn4 Plaintiff failed to rebut or resolve these genuine disputes in a reply brief or at the hearing. Accordingly, the undersigned recommends that plaintiff's motion for partial summary judgment be denied. However, such denial should be without prejudice because the court's grant of relief in regards to defendant's deemed admissions warrants the reopening of discovery considering that such relief was requested and granted after the close of discovery.*fn5 As a result, the undersigned modifies the scheduling order in this case to permit the parties to conduct additional discovery and re-file dispositive motions.

I. BACKGROUND

Relevant here, plaintiff's complaint alleges that defendant is liable for violations of 47 U.S.C. §§ 553 and 605, and the tort of conversion under California law. (See Compl. at 3-7.) All of plaintiff's claims arise from defendant's alleged unauthorized interception and broadcast of a closed-circuit feed of a boxing match entitled "'Firepower': Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program" ("Program"), to which plaintiff allegedly held the exclusive commercial domestic distribution rights. (See Compl. ¶¶ 3, 9, 12, 19-20, 24.)

It is undisputed that plaintiff is a distributor of sporting event programming and distributes such programming by means of "pay-per-view" broadcasts. (Gagliardi Aff. ¶ 3, Dkt. No. 33, Doc. No. 33-4.) It is also undisputed that plaintiff "was granted the exclusive commercial distribution rights to the Program," which was broadcast nationwide on Saturday, November 14, 2009. (Pl.'s Statement of Undisputed Facts, Fact No. 1, Dkt. No. 33, Doc. No. 33-1; Gagfliardi Aff. ¶ 3.) Defendant does not dispute that the Program "included the main event between Pacquiao and Cotto, as well as all undercard bouts, including the fight between Julio Cesar Chavez Jr. v. [sic] Troy Rowland." (Gagfliardi Aff. ¶ 3.) It is undisputed that because of plaintiff's acquisition of the exclusive commercial distribution rights to the Program, commercial establishments such as bars and restaurants were required to pay a licensing fee, calculated on the basis of seating capacity, in order to publicly broadcast the Program in their establishments. (See id. ¶¶ 4-5.)

In regards to defendant, the parties do not dispute that defendant owns the commercial establishment called the "Cavour Club," located at 302 South Union Street, Stockton, California 95207, where the alleged interception and broadcast occurred. (See Armando Torres Decl. ("A. Torres Decl.") at 2-3, Dkt. No. 36.) It is further undisputed that defendant did not pay a commercial license fee to plaintiff and was thus not authorized to broadcast the Program. (See Gagliardi Aff. ¶ 6; see also Def.'s Revised Answers to Pl.'s Req. for Admission at 2, attached as Ex. 5 to A. Torres Decl.)

The parties greatly dispute several key facts, as discussed below. The parties primarily dispute whether defendant actually intercepted a satellite or cable feed of the Program on the night in question, and the parties have submitted conflicting evidence in that regard. The competing evidence is discussed in detail below. Before turning to the disputed evidence, however, the undersigned must address whether plaintiff is entitled to rely on defendant's deemed admissions in moving for summary judgment.

II. DEFENDANT'S REQUEST FOR RELIEF FROM DEEMED ADMISSIONS

In its motion for partial summary judgment, plaintiff contends that it served requests for admission on defendant on September 7, 2011, and that defendant had not responded to plaintiff's requests for admission as of the date plaintiff filed its motion for partial summary judgment. (Pl.'s Memo. of P. & A. in Supp. of Mot. for Partial Summ. J ("Pl.'s Memo.") at 6-7, Dkt. No. 33; see also Riley Decl. ¶¶ 3-4 & Ex. A, Dkt. No. 33, Doc. No. 33-2.) Upon review of the requests for admission, it is readily apparent that defendant would essentially concede liability in this case if he is deemed to have admitted all the matters addressed in the requests for admission. As noted by plaintiff, "[u]nanswered requests for admissions may be relied on as the basis for granting summary judgment." Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007).

In opposing plaintiff's motion, defendant seeks relief from the deemed admissions on the grounds that the presentation of the merits of this case would be subserved by allowing the deemed admissions to stand. Defendant admits that he possessed plaintiff's requests for admission as of September 14, 2011. (Def.'s Opp'n to Mot. for Partial Summ. J. ("Def.'s Opp'n") at 6, Dkt. No. 36.) He argues, however, that on October 7, 2011, he filed a motion for an extension of time to respond to discovery (Dkt. No. 29). The court construed defendant's ex parte motion as seeking a protective order, but denied the motion without prejudice because defendant: (1) did not notice the motion for a hearing date, and (2) had not indicated whether he and plaintiff's counsel had met and conferred about the discovery dispute, which is required prior to seeking a protective order.*fn6 (See Order, Oct. 17, 2011, Dkt. No. 30.) Defendant never re-filed his motion.

In his written opposition, defendant represents that he did not re-file the motion for an extension of time because he had spoken with plaintiff's employee named "Ines" or "Maria," who agreed to an extension of time. (Def.'s Memo. at 7.) This statement is not supported by a declaration under penalty of perjury or sworn affidavit, and defendant did not explain the nature of the extension. At the hearing, defendant conceded that his opposition contained a material misrepresentation. After refusing to file a declaration under penalty of perjury or take the stand during the hearing to support his statement regarding the purported extension of time under oath, defendant attempted to argue that his wife actually called plaintiff's counsel's office to seek the extension. When the undersigned asked whether defendant's wife would provide a declaration under penalty of perjury regarding her request for the extension, defendant conceded that his wife told him, purportedly after defendant filed his written opposition, that she never actually called plaintiff's counsel's attorney to seek an extension of time. The undersigned warned defendant of the very serious consequences that could result from his or his wife's misrepresentations to the court or to plaintiff in discovery responses. Defendant represented on the record that the remainder of his representations are truthful.

Nevertheless, and despite defendant's blatant lie to the court, the undersigned has considered whether defendant is entitled to relief from the deemed admissions under the applicable standard because of the presumption in favor of hearing cases on the merits. Moreover, apart from defendant's lie, defendant submitted revised responses to plaintiff's requests for admission with his opposition to the motion for summary judgment and seeks relief from the deemed admissions pursuant to Federal Rule of Civil Procedure 36(b). (Def.'s Opp'n at 7-8; A. Torres Decl., Ex. 5.)

With respect to requests for admission, Federal Rule of Civil Procedure 36(a)(3) provides, in part, that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter." Rule 36(b) further provides that "[a] matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." Fed. R. Civ. P. 36(b). Whether such relief is appropriate is governed by a two-pronged test: a "court may permit withdrawal or amendment if it would [1] promote the presentation of the merits of the action and [2] if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." Id.

Rule 36(b) presents a permissive standard, and whether a party is entitled to relief in the form of withdrawal or amendment of responses to requests for admissions lies within the discretion of the district court.*fn7 Conlon, 474 F.3d at 621. However, "[t]he rule permits the district court to exercise its discretion to grant relief from an admission made under Rule 36(a) only when (1) the presentation of the merits of the action will be subserved, and (2) the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits." Id. (citations and quotation marks omitted). "The party relying on the deemed admission has the burden of proving prejudice." Id. at 622. These two factors are "central" to the analysis, and a district court's failure to consider the two components of Rule 36(b) identified above constitutes an ...

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