Opinion
Civil Action No. 5:03-CV-223-C.
October 26, 2004
ORDER
COMES NOW BEFORE THIS COURT Defendant Horace Abston's Motion for Summary Judgment, filed with this Court on September 13, 2004. Defendant also filed Defendant's Exhibit A, which was attached to his motion. Plaintiff failed to file a response.
Defendant did not file an affidavit in support of his Motion for Summary Judgment; rather, he simply attached, as Exhibit A, Plaintiff's responses to interrogatories and requests for production and admissions. Such an absence of a supporting affidavit is not fatal in presenting a motion for summary judgment as long as a moving party provides some evidentiary basis to meet his summary judgment burden. See Fed.R.Civ.P. 56(c) (". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . .") (emphasis added); Fletcher v. Evening Star Newspaper Co., 133 F.2d 395, 396 (D.C. Cir. 1942) ("Nor is there anything in the contention that a motion for summary judgment must be accompanied by supporting affidavits. . . . The Rule does not make such mandatory.").
I. BACKGROUND
On September 12, 2003, Plaintiff filed its Original Complaint. Plaintiff is in the business of distributing satellite television broadcasts throughout the United States and Plaintiff alleges that Defendant purchased one or more pirate access devices used for illegally obtaining its satellite television broadcasts. Plaintiff advances claims for violations of 47 U.S.C. § 605(e)(3)(C), 18 U.S.C. § 2511, and 47 U.S.C. § 605(e)(4), and for damages under Chapter 123 of the Texas Civil Practice and Remedies Code. Plaintiff also seeks injunctive relief to prevent Defendant from further interception of its satellite programming.
On August 19, 2004, this Court granted Plaintiff's Consent Motion to Withdraw Counts 3 and 5 of the Complaint. Count 3 was for alleged violations of 18 U.S.C. § 2512. Count 5 was for alleged Texas Civil Conversion.
Plaintiff alleges that on or about March of 2001, Defendant purchased one or more pirate access devices from Mountain Electronics by placing the order using interstate or foreign wire facilities. Plaintiff alleges that Defendant received the items ordered through the United States Postal Service or commercial mail carrier. Specifically, Plaintiff alleges that Defendant purchased a printed circuit board device invoiced as "DCB 2.3." Plaintiff alleges that the device was a "bootloader," which was designed to allow surreptitious interception of DIRECTV satellite programming, thus providing Defendant access to DIRECTV programming without payment. Plaintiff alleges that the device was shipped to Defendant's address in Lubbock, Texas. Plaintiff further alleges that Defendant had reason to know that such device is used to illicitly decrypt satellite programming. Plaintiff alleges that Defendant possessed and used the pirate device to display satellite programming without authorization. Plaintiff alleges that a pirate access device provides access to all television programming transmitted by DIRECTV, including access without authorization to programs that may easily reach thousands of dollars in a single year. Plaintiff alleges that Defendant maintained without authorization a satellite dish along with equipment capable of receiving and unscrambling encrypted satellite programming transmissions to effectuate the unauthorized reception of the satellite programming. Defendant denies Plaintiff's allegations.
II. STANDARD
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255. Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S.Ct. 2548 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED. R. CIV. P. 56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.In reviewing the summary judgment evidence, "Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Rather, the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention. Id.; see also Forsyth v. Barr, 19 F.3d 1527, 1536-37 (5th Cir. 1994) (finding that two volumes of summary judgment evidence were insufficient to preclude summary judgment when plaintiffs failed to identify specific portions which supported their claims). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claims." Ragas, 136 F.3d at 458. A party may not rely on unsubstantiated assertions as competent summary judgment evidence. Id. If no issue of fact is presented and if the mover is entitled to judgment as a matter of law, the court is required to render the judgment prayed for. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 322. Before it can find that there are no genuine issues of material fact, however, the Court must be satisfied that no reasonable trier of fact could have found for the non-moving party. Id.
The party moving for summary judgment 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." Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex, 477 U.S. at 323). However, the movant does not need to negate the elements of claims on which the nonmoving party would bear the burden of proof at trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Skotak, 953 F.2d at 913.
III. DISCUSSION
Defendant's main argument for summary judgment is that Plaintiff has failed to come forward with evidence that Defendant actually intercepted Defendant's encrypted satellite signal with a pirate access device.
47 U.S.C. § 605(e)(3)(C)As to Plaintiff's first cause of action, Defendant contends that there is no evidence of actual interception of Plaintiff's programming and, thus, Plaintiff cannot demonstrate that it is a "person aggrieved" under § 605(d)(6), as is required to recover damages under § 605(e)(3)(C). Defendant argues that "the statute clearly requires that a plaintiff submit sufficient evidence of actual interception of a communication by the defendant to be entitled to relief." Def.'s Mot. for Summ. J. at 3. Defendant contends that "Plaintiff has not produced any responses to production, interrogatories, or admissions that demonstrate Defendant actually intercepted satellite signals." Id. (citing to Def. Ex. A). Thus, Defendant seems to be relying upon Plaintiff's response to Request for Admission No. 2, contained in Defendant's Exhibit A. Defendant asked Plaintiff to admit or deny whether Plaintiff has real or direct evidence that Defendant intercepted electronic signals from Plaintiff. See Def. Ex. A at 14. Plaintiff responded, "admitted as to direct evidence, the rest of the request is denied." Id.
Defendant's Exhibit to the Motion for Summary Judgment is unnumbered; thus, the Court refers to the page number in sequential order from the first page following the cover sheet to the last page.
Defendant's contention is correct that a plaintiff must demonstrate actual interception in order to show a violation of § 605. See, e.g., DIRECTV, Inc. v. Robson, ___ F. Supp. 2d ___, 2004 WL 1923827 (W.D. La. 2004). In Robson, that court quoted in agreement the findings of another judge within the same district who stated that "as a matter of law a plaintiff must demonstrate the violation of Section 605 by setting forth the evidence of actual interception." Id. at *4. That same court went on to find that there was a lack of evidence in the record setting forth a genuine issue of material fact proving the allegation that the defendant intercepted DIRECTV's satellite programming. "Mere possession of unloopers and emulators is insufficient to raise an inference of illicit use of these devices." Id.
However, courts have determined that interception may be shown by circumstantial evidence. See DIRECTV, Inc. v. Gemmell, 317 F. Supp. 2d 686, 693 (W.D. La. 2004). In Gemmell, computer records in evidence showed the purchase and installation of equipment designed to unlawfully intercept electronic communications. Id. A court in the Northern District of Texas has determined that proof showing that a defendant subscribed to satellite programming services and purchased a pirate access device is circumstantial evidence of actual interception. DIRECTV v. Hampton, 2004 WL 1873036, *3 (N.D. Tex. 2004) (citing to DIRECTV, Inc. v. Vanderhook, 302 F. Supp. 2d 814, 818-19 (W.D. Mich. 2004)).
Thus, the Court finds as a matter of law that DIRECTV must show that Defendant actually intercepted its satellite programming, but circumstantial evidence may be acceptable for this purpose. Gemmell, 317 F. Supp. 2d at 693. However, "a plaintiff must demonstrate the violation of Section 605 by setting forth the evidence of actual interception." Id. Here, Plaintiff has not set forth any evidence of actual interception such as computer records, invoices, shipping labels, etc.; rather, Plaintiff has only asserted and alleged such.
Thus, when answering the relevant question of whether Plaintiff has produced any circumstantial evidence acceptable for showing interception, the Court determines that Plaintiff has failed to submit relevant evidence to make such a circumstantial showing so as to raise a genuine issue of material fact. As stated above, Plaintiff did not respond to Defendant's Motion for Summary Judgment. Therefore, the only evidence before the Court is Defendant's Exhibit A. As is required when reviewing a motion for summary judgment, the Court must determine if, even absent a response by Plaintiff, a genuine issue of material fact exists from a review of the evidence before the Court. However, the Court's duty of inquiry is limited under the circumstances of this case where Plaintiff failed to point out evidence to counter Defendant's arguments. Ragas, 136 F.3d at 458; see also Forsyth, 19 F.3d at 1536-37 (the Court need rely only on those portions of the submitted documents to which the nonmoving party directs the Court's attention).
When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). As stated above, under the standard this Court uses in reviewing a motion for summary judgment, Rule 56 does not impose upon this Court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. Ragas, 136 F.3d at 458. Because Plaintiff "did not identify any evidence of damages in his summary judgment response, the evidence was not properly before the district court and will not be considered here." Malacara, 353 F.3d at 404. The Fifth Circuit's holding that unidentified evidence in the context of a summary judgment motion is not properly before the Court is even more true in this instance where the Plaintiff did not even file a response.
Even if this Court were to search through Defendant's Exhibit A to find unidentified facts that favor Plaintiff's case as opposed to those specific facts identified by the Defendant, Plaintiff's responses in Defendant's Exhibit A are nothing more than a repetition of Plaintiff's Complaint. As the notes of the Advisory Committee on Civil Rules state, "[t]he very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Fontenot, 780 F.2d at 1196.
The Court finds that Plaintiff's answers to Defendant's Requests for Production simply state that the Defendant should "see documents produced with DIRECTV's Initial Disclosures, and any supplement or amendment thereto." The documents are not attached to any pleading on file with this Court. Thus, as to the portion of Defendant's Exhibit A relating to Requests for Production, nothing in Plaintiff's responses amounts to more than conclusory allegations or assertions. Absent evidence, there is no sound reason why conclusory allegations should suffice to require a trial when there is no evidence to support them even if the movant lacks contrary evidence. Fontenot v. Upjohn Co., 780 F.2d 1190, 1195-96 (5th Cir. 1986).
Next, if this Court had searched through Plaintiff's own responses to Defendant's Interrogatories in search of responses to create a genuine issue of material fact, the Court would only have found Plaintiff's conclusory responses. Conclusory responses and assertions of ultimate issues of fact do not amount to evidence that can sustain a genuine question of material fact. Moreover, a party's own answers to interrogatories are not proper evidence to defend against a motion for summary judgment if those answers are not shown to be based upon personal knowledge rather than hearsay. Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 803 (N.D. Ind. 1996); Henderson v. Handy, 1996 WL 148040, *4 (N.D. Ill. 1996) (while a party can point to an opposing party's interrogatories as admissions of an opponent, that party ordinarily cannot rely upon their own answers to interrogatories as affirmative evidence).
As to the portion of Defendant's Exhibit A that contains Plaintiff's responses to Defendant's Requests for Admissions, Plaintiff repeatedly admits that it has no direct evidence to support its allegations. Nor has Plaintiff produced any circumstantial evidence that Plaintiff purchased the device and owned a satellite receiver system along with a dish. Plaintiff has produced no evidence of receipts, affidavits, or any other type of proper and relevant evidence to make a circumstantial showing. Defendant's Requests for Admissions are absent any supporting documentary evidence to back up Plaintiff's conclusions and assertions of ultimate facts made therein.
Because no issue of fact is presented and Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's cause of action under 47 U.S.C. 605(e)(3)(C).
18 U.S.C. § 2511In arguing against the second count, Defendant urges again that Plaintiff has failed to produce any responses to interrogatories, requests for admissions or production that demonstrate Defendant intercepted satellite signals. Count 2 of the Complaint is brought pursuant to 18 U.S.C. § 2511 and it is generally accepted that § 2511 is covered through 18 U.S.C. § 2520 to provide a civil cause of action. Section 2520 provides that a "person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity. . . ." 18 U.S.C. § 2520 (emphasis added). Thus, Defendant argues, Plaintiff has failed to show a violation of 18 U.S.C. § 2511.
Section 2520 does not render civilly actionable mere possession or procurement of dubious devices. DIRECTV, Inc. v. Ostrowski, ___ F. Supp. 2d ___, WL 1102419, (N.D. Ill. 2004) (citing and quoting the Fifth Circuit case of Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000)). "The Court finds persuasive the view that the language of § 2520 is most fairly read to render actionable alleged violations involving interception, disclosure, or intentional use of communications, as contrasted with, for example, simple possession of dubious devices." Id. The Court finds that Defendant has directed this Court to Exhibit A to show that Plaintiff has failed to meet its burden of bringing forth evidence of actual interception.
As discussed above, Plaintiff has failed to point to evidence in the record to rebut Defendant's argument for summary judgment on this count. Because no genuine material issue of fact is presented and Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's cause of action under 18 U.S.C. § 2511.
47 U.S.C. § 605(e)(4)Third, Defendant urges that Plaintiff does not have a cause of action under 47 U.S.C. § 605(e)(4) because § 605(e)(4) applies to manufacturers and sellers. Pursuant to another district court's order from this circuit, this Court agrees with Defendant's argument.
Section 605(e)(4) is a provision relating to manufacturers and sellers, rather than to individual users as Defendant is alleged to be. See Cmty. Television Sys., Inc. v. Caruso, 284 F.3d 430, 435 n. 6 (2d Cir. 2002). The problem is one for congressional, and not judicial, intervention. Summary judgment is, therefore, appropriate on [this count], also.DirecTV, Inc. v. Robson, ___ F. Supp. 2d ___, 2004 WL 1924827, *5 (W.D. La. July 27, 2004).
Defendant has pointed to evidence to show that he did not actually intercept Plaintiff's satellite programming. Plaintiff has neither pointed the Court to contrary evidence nor contradicted Defendant's summary judgment argument that he is not a manufacturer or seller of pirate access devices and thus not liable under § 605(e)(4) as a matter of law. Because no genuine material issue of fact is presented and Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's cause of action under 47 U.S.C. § 605(e)(4).
TEX. CIV. PRAC. REM. CODE § 123.001 et seq.
And fourth, Defendant argues again that Plaintiff has failed to prove it is a victim of interception by introducing evidence that Defendant merely had the capacity to intercept communications. Plaintiff's final count alleges violations of sections 123.001 et seq. of the Texas Civil Practice and Remedies Code. Section 123.002 states:
A party to a communication may sue a person who: (1) intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication; (2) uses or divulges information that he knows or reasonably should have known was obtained by interception of the communication. . . .
Tex. Civ. Prac. Rem. Code Ann. § 123.002(a) (Vernon 1997).
Defendant cites to Figure World Incorporated v. Farley, 680 S.W.2d 33, 35 (Tex.App.-Austin 1984, writ ref'd n.r.e.), to support his contention that Plaintiff must prove that it was a victim of interception before it may recover under section 123.002. Defendant argues and cites to Exhibit A to show that Plaintiff has produced no evidence that Defendant intercepted, attempted to intercept, or employed or obtained another to intercept or attempt to intercept the communication. Defendant also argues and cites to Exhibit A to show that Plaintiff has not produced any evidence that shows Defendant used or divulged information that Defendant knew or reasonably should have known was obtained by interception of the communication.
As stated above, the Court finds that Plaintiff has failed to produce evidence, and has merely rested on its own conclusory statements and allegations, that Defendant intercepted satellite signals with the pirating device. Because no genuine material issue of fact is presented and Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's cause of action under Texas Civil Practice Remedies Code § 123.002.
CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is in all things GRANTED. Judgment shall be entered for Defendant.
SO ORDERED.