United States District Court, D. Nebraska
MEMORANDUM AND ORDER
LAURIE SMITH CAMP, Chief District Judge.
This matter is before the Court on the Motion for Summary Judgment (Filing No. 28), filed by Plaintiff Joe Hand Promotions, Inc. ("Joe Hand"). For the reasons discussed below, the Motion will be denied.
The following facts are those stated in the briefs and supported by pinpoint citations to evidence in the record, those the parties have admitted, and those the parties have not properly resisted as required NECivR 56.1 and Federal Rule of Civil Procedure 56.
Joe Hand is a closed-circuit distributor of sports and entertainment programming. Defendant Daris W. Peterson ("Peterson") is a resident of Omaha, Nebraska. A sports program entitled Ultimate Fighting Championship 100: "Making History", was telecast nationwide on July 11, 2009 (the "Program"). Joe Hand had the exclusive commercial distribution rights to the Program. (Filing No. 28-2 at ECF 3-4.)
At all times relevant, Peterson was the sole director, President, Secretary, Treasurer, and Registered Agent of Double Dare, Inc. (Filing No. 11-1.) Peterson also was listed as the President and Manager of Double Dare, Inc., on its liquor license for an establishment known as No Dogs Allowed (the "Establishment"), located at 5338 North 103rd Street, Omaha, Nebraska 68134. The license identified Double Dare, Inc.'s principal office as the same location. Peterson was the manager of the Establishment, and was on its premises on July 11, 2009.
The Program was exhibited at the Establishment on July 11, 2009. (Filing No. 28-2 at ECF 29.) Joe Hand did not authorize Peterson or the Establishment to broadcast the Program. (Filing No. 28-2 at ECF 4-5.) The Establishment did not purchase a commercial license from Joe Hand that would have permitted the lawful exhibition of the Program at the Establishment. (Filing No. 28-2 at ECF 3-4.) Because Joe Hand purchased and retained the exclusive commercial distribution rights, no other company was authorized to transmit the Program. ( Id. at ECF 4.)
The commercial licensing fee for an entity the size of the Establishment to exhibit the Program was $1, 250. Neither Peterson nor the Establishment paid a commercial licensing fee to Joe Hand to broadcast the Program, and they were not licensed to broadcast the Program.
SUMMARY JUDGMENT STANDARD OF REVIEW
"Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Gage v. HSM Elec. Prot. Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed.R.Civ.P. 56(c)). The court will view "all facts in the light most favorable to the nonmoving party and mak[e] all reasonable inferences in [that party's] favor." Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir 2011). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue... Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party's claims by showing "the absence of a genuine issue of material fact." Id. at 325. Instead, "the burden on the moving party may be discharged by showing'... that there is an absence of evidence to support the nonmoving party's case." Id.
In response to the movant's showing, the nonmoving party's burden is to produce specific facts demonstrating "a genuine issue of material fact' such that [its] claim should proceed to trial." Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, ' and must come forward with specific facts showing that there is a genuine issue for trial.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87)), cert. denied, 132 S.Ct. 513 (2011). "[T]he mere existence of some alleged factual dispute between the parties'" will not defeat an otherwise properly supported motion for summary judgment. Quinn v. St. Louis County., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding "a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Otherwise, where the Court finds that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party" where there is no "genuine issue for trial"-summary judgment is appropriate. Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
I. 47 U.S.C. §§ 553 ...