August 12, 2013
JOE HAND PROMOTIONS, INC., Plaintiff,
JACOB EVANS ALBRIGHT, INDIVIDUALLY and d/b/a MINERS RANCH SALOON, Defendant.
MEMORANDUM AND ORDER RE: MOTION TO ALTER OR AMEND JUDGMENT
WILLIAM B. SHUBB, District Judge.
Plaintiff Joe Hand Promotions, Inc., brought this action against defendant Jacob Evans Albright, individually and doing business as Miners Ranch Saloon, arising from defendant's unauthorized public exhibition of a televised sporting event. Before the court is plaintiff's motion to alter or amend the judgment of the June 5, 2013, Memorandum and Order Re: Cross-Motions for Partial Summary Judgment ("Order"), (Docket No. 31), pursuant to Federal Rule of Civil Procedure 59(e). (Docket No. 36.) Defendant opposes the motion. (Docket No. 40.)
The Order granted in part and denied in part the cross-motions for partial summary judgment. (June 5, 2013 Order at 21:17-22:5.) Based on the undisputed evidence that "Ultimate Fighting Championship 118: Frankie Edgar v. BJ Penn 2, " including all undercard bouts and fight commentary, (the "Program"), was broadcast at the Miners Ranch Saloon without plaintiff's authorization, the court awarded plaintiff $1, 000.00 in statutory damages for its 47 U.S.C. § 605 claim and $1, 100.00 in damages for its conversion claim. (Id. at 21:20-24.)
Reconsideration is an "extraordinary remedy" which should be used "sparingly in the interests of finality and the conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop , 229 F.3d 877, 890 (9th Cir. 2000); see also Sch. Dist. No. 1J, Multonomah Cnty. v. ACandS, Inc. , 5 F.3d 1255, 1263 (9th Cir. 1993) (stating that reconsideration should only be granted in "highly unusual circumstances"). A motion for reconsideration "should not merely present arguments previously raised, or which could have been raised in the initial... motion." United States v. Westlands Water Dist. , 134 F.Supp.2d 1111, 1130 (E.D. Cal. 2001) (citing Backlund v. Barnhart , 778 F.2d 1386, 1388 (9th Cir. 1985)). Under Rule 59(e), "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, 5 F.3d at 1263.
Plaintiff raises two issues. First, plaintiff argues that the court "did not adequately take deterrence into account in making its statutory damages award (or in declining to award enhanced statutory damages)." (Mem. in Supp. at 4:21-22 (Docket No. 36).) The court did consider deterrence in making its determination and cited to a case granting the same statutory damages award under comparable circumstances as it granted. (See June 5, 2013 Order at 14:8-9, 14:21-24.) As the court clearly explained, it did not increase the damages award under § 605 to take into consideration the cost of legally broadcasting the Program because plaintiff also asked for damages in that amount for its conversion claim. (See id. at 19:10-15.) To have awarded damages for the cost of the Program twice would violate the rule against double recovery. (Id.)
Plaintiff argues further that the court "erred in not considering the general deterrence goals of the piracy statute." (Mem. in Supp. at 6:11-12.) Plaintiff contends that the court's $2, 100 award is not an effective deterrent because "if [d]efendant successfully pirates only one broadcast in the future, he will essentially break even." (Id. at 6:18-19.) There is no reason to assume that defendant will break the law again, especially given the circumstances of this case. When considered with the conversion award, the court's award of statutory damages penalizes defendant $1, 000 beyond what it would have cost to legally exhibit the Program. The court considers- and considered-this penalty to be a forceful deterrent, especially for the small establishment at issue. More importantly, Congress considered that this amount could be an effective deterrent. If plaintiff feels that the damages minimum provided by § 605 is insufficient to meet the statute's goals, the court is not the proper target of plaintiff's dissatisfaction. The court also notes that defendant is obligated to pay plaintiff's attorney's fees, which significantly increases the cost of violating § 605. See 47 U.S.C. § 605(e)(3)(B)(iii) (requiring court to award "full costs, including reasonable attorney's fees to an aggrieved party who prevails").
Second, plaintiff argues that "it was error to grant summary judgment to [d]efendant" on the issue of enhanced statutory damages. (Mem. in Supp. at 8:3-4.) In the Order, the court found that plaintiff was not entitled to enhanced statutory damages. (June 5, 2013 Order at 16:27-28.) Such damages are available "in any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or financial gain...." 47 U.S.C. § 605(e)(3)(C)(ii).
As the court recounted in its Order, defendant testified that he had no knowledge of the interception or theft of a television signal. (June 5, 2013 Order at 15:22-23.) He did not authorize the interception of a television signal or the display of television programming without properly paying for it. (Id. at 15:26-28.) Nor did he authorize an employee or patron to intercept the Program. (Id. at 16:22-25.) The court found this evidence to be undisputed. (Id. at 16:3-4, 16:23-24.)
Plaintiff argues that, contrary to the court's conclusion, it disputed defendant's testimony that he had no knowledge of the unlawful interception. (Reply at 2:11-14 (Docket No. 42).) It again points the court to a case from the Eastern District of Wisconsin stating that "it is simply beyond belief that the only possibility here is that [the defendant] was so absent from the operation of his business that he had absolutely no control over or knowledge that the alleged illegal broadcast occurred." Joe Hand Promotions, Inc. v. Jorgenson, 12-C-0159, 2013 WL 64629, at *3 (E.D. Wis. Jan. 4, 2013). The Jorgenson court made this observation in rejecting the defendant's argument that he could not be individually liable for an alleged violation of § 558 or § 603 that occurred at his business.
As plaintiff reminds the court in its memorandum in support of this motion, the court is not to make credibility determinations at the summary judgment stage. In accordance with the summary judgment standard, the court accepted defendant's statement that he did not know that there was an interception or theft of a television signal or authorize any interception or display of the Program. (June 5, 2013 Order at 15:22-28.) It also accepted his statement that there was no additional commercial benefit to Miners Ranch Saloon on the night the Program was broadcast there. (Id. at 16:1-4.) Plaintiff offered no contrary evidence and the Jorgenson case fails to call defendant's statements into question.
First, this court does not necessarily agree with the court's observation in Jorgenson. In this court's view, under certain circumstances, an absentee owner could be unaware that an unauthorized broadcast was shown at his establishment. Second, plaintiff ignores the critical context of the Jorgenson court's observation. In Jorgenson, there was a large sign advertising the unauthorized program's broadcast. Jorgenson, 2013 WL 64629, at *3. It would be much more difficult to believe that the defendant owner had no knowledge of such an event in that case, than here, where there was no evidence of promotion. (See June 5, 2013 Order at 14:16.)
As this court explained in its Order, defendant is responsible for the wrongdoing at issue because while "doing business as" Miners Ranch Saloon he is legally indistinguishable from Miners Ranch Saloon. (Id. at 8:3-17.) But as the court found, (id. at 16:20-28), defendant made a sufficient showing that the broadcast of the Program was not willful. See Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc. , 210 F.3d 1099, 1102 (9th Cir. 2000) (holding that party seeking summary judgment meets initial burden by "negating an essential element of the nonmoving party's claim or defense" or by "show[ing] that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial"). As explained above, plaintiff offered no conflicting evidence to show that it could prove willfulness.
Plaintiff is correct that in the case the court discussed, J & J Sports Prods., Inc. v. Vazquez, 11-5448-SC, 2012 WL 3025916 (N.D. Cal. July 24, 2012), there was additional evidence that a third party had ordered the program on a television and brought that television to the establishment where it was displayed, whereas here the Program was displayed on the televisions owned by Miners Ranch Saloon. But the fact remains that there was no evidence that defendant exhibited the Program for commercial or personal advantage. Section 605(e)(3)(C)(ii) requires that the exhibition of the unauthorized broadcast be both willful and "for purposes of direct or indirect commercial advantage or financial gain." 47 U.S.C. § 605(e)(3)(C)(ii). The undisputed fact before the court was that on the night of the unauthorized broadcast, there was no increase in Miners Ranch Saloon's sales or revenue compared to similar days in the same time period. (See June 5, 2013 Order at 16:1-3.) There was also no evidence that the establishment charged a cover, increased food or beverage prices, or in any way advertised exhibition of the Program. (See id. at 14:16-18, 16:1-3.)
Plaintiff's motion is no more than a regurgitation of arguments previously rejected in this court's Order. The court's determination that plaintiff was not entitled to enhanced statutory damages was not error. Just because plaintiff disagrees with this court's decision is no reason for the court to alter or modify it.
IT IS THEREFORE ORDERED that judgment be entered in accordance with the court's June 5, 2013 Order;
AND IT IS FURTHER ORDERED that plaintiff's motion to alter or amend that judgment be, and the same hereby is, DENIED.