United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge
the Court is Plaintiff's Motion for Summary Judgment.
(ECF No. 14). Defendant filed a Response. (ECF No. 17).
Plaintiff filed a Reply. (ECF No. 18). The Court finds this
matter ripe for its consideration.
January 2015, Plaintiff Joe Hand Promotions, Inc. ("Joe
Hand") filed its Complaint against Nilesh Dalal,
individually and doing business as Mirage Sports Bar and
Grill ("Dalal"). In its Complaint, Joe Hand alleges
that it was granted the exclusive rights to Ultimate
Fighting Championship 175: Chris Weidman v. Lyoto
Machida ("the Program"). Joe Hand then entered
into sublicensing agreements with various commercial
entities, granting these entities limited rights to
publically exhibit the Program within their establishments.
Joe Hand alleges that Dalal unlawfully intercepted and
broadcast the Program at Mirage Sports Bar and Grill
("Mirage") for the purposes of commercial advantage
and/or financial gain on July 5, 2014. Joe Hand alleges that
Dalal violated 47 U.S.C. § 605 and 47 U.S.C. § 553
and that he wrongfully converted the Program for his own use
and benefit. Joe Hand asserts that the undisputed facts
demonstrate that it is entitled to summary judgment on these
motion for summary judgment will be granted if the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact,
and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). The moving party
bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Enter. Bank v. Magna Bank of Mo., 92 F.3d
743, 747 (8th Cir. 1996). A party opposing a properly
supported motion for summary judgment "must set forth
specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986); see also Krenik v. Cty. of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995). To establish
that a genuine issue of material fact exists, the nonmoving
party must show that (1) there is a factual dispute, (2) the
disputed fact is material to the outcome of the case, and (3)
the dispute is genuine. RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 339, 401 (8th Cir.
1995). A dispute is genuine only if a reasonable jury could
return a verdict for either party. Id.;
Anderson, 477 U.S. at 248; see also McLaughlin
v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir.
Hand asserts that there is no genuine issue of material fact
regarding whether Dalal unlawfully intercepted, received, or
published the Program in violation of 47 U.S.C. § 605
and 47 U.S.C. § 553, that Joe Hand is a person aggrieved
under the statute, and that Joe Hand is entitled to statutory
support its Motion for Summary Judgment, Joe Hand produced
the affidavit of Fred Goldthorpe, a private investigator.
(ECF No. 14-1). In his affidavit, Goldthorpe attests that he
entered Mirage on July 5, 2014 at 9:30 p.m. At the
receptionist area of Mirage, there was a sign that indicated
a cover charge of $3.00. The receptionist asked Goldthorpe if
he wanted to pay the cover charge at the time he arrived or
if he would rather add it to his bill. He indicated that he
would add it to his bill. While there, he observed the
Program on multiple televisions. He described portions of the
Program in detail in his affidavit. When he got his bill, he
was not charged the cover charge.
also produced the affidavit of the President of Joe Hand, Mr.
Joe Hand Jr. ("Mr. Hand") (ECF No. 14-3). Mr. Hand
asserts that Joe Hand purchased the exclusive commercial
exhibition licensing rights to the Program. Joe Hand marketed
sublicensing rights, but did not sublicense the Program to
Dalal or Mirage.
Court will first address Joe Hand's procedural arguments.
Joe Hand argues that its Statement of Material Fact (ECF No.
16) should be deemed admitted by the Court because Dalal
failed to produce a "separate, short and concise
statement" of material fact to which it contends a
genuine dispute exists. Local Rule 56.1(b). After review, the
Court finds that Dalal filed no such statement with the
Court. Accordingly, the Local Rules direct that the Court
should deem all facts set forth in Joe Hand's statement
admitted. See Local Rule 56.1(c);
asserts that Joe Hand's Motion for Summary Judgment
should not be granted because Joe Hand has no pictures of the
Program being shown at Mirage, there is no electronic
evidence that the program was shown, and Goldthorpe does not
assert that he saw the specific match between Weidman and
Machida. Dalal's burden after Joe Hand has
properly supported its Motion for Summary Judgment is to
demonstrate that facts are in dispute such that a trial is
necessary. Anderson, 477 U.S. at 256. Dalal has not
produced any evidence disputing Joe Hand's supported
facts. It is undisputed that Goldthorpe attended Mirage on
the night in question and observed televisions with certain
fights and commentary which he described in detail. (ECF No.
14-1). It is also undisputed that the program described by
Goldthrope was part of the Program to which Joe Hand had
exclusive rights, and that Joe Hand's exclusive rights to
the Program included "all undercard bouts and
commentary." (ECF No. 14-1; 14-3). Dalal has presented
no facts supporting his argument that the Program was not
shown at the Mirage on July 5, 2014. Satcher v. Univ. of
Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 734-35
(8th Cir. 2009) (noting that it is not district court's
responsibility to sift through record to see if, perhaps,
there was issue of fact).
also asserts that the proper defendant in this lawsuit is the
owner of the Mirage rather than against Dalal who is a
shareholder. Dalal fails to elaborate on his argument or
support it with any legal authority. In fact, in his response
to Joe Hand's interrogatories, Dalal asserted that he was
a 15% owner in Mirage. (ECF No. 14-2). However, Dalal points
to Mirage of Arkadelphia, Inc.'s certificate of good
standing to demonstrate that he was a shareholder who should
not be subject to suit. (ECF No. 17-3). Dalal fails to
demonstrate to the Court how the certificate of good standing
demonstrates that he is not a proper defendant. See J& J
Sports Productions, Inc. v. Diaz De Leon, 2012 WL 79877
at *2 (W.D. Ark. Jan. 11, 2012) (noting that an ...