Innovative Sports Management Incorporated v. Cabellos ( 2024 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Innovative Sports Management Incorporated, No. CV-22-01989-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Victor S Cabellos, et al., 13 Defendants. 14 15 16 Before the Court is Defendants’ motion for summary judgment (Doc. 56), which is 17 fully briefed (Docs. 66, 67.) The Court heard oral argument on April 25, 2024. (Doc. 73.) 18 As explained below, the motion is granted. 19 I. Background 20 Defendants operate a family business called Atlantis Mariscos & Sushi (“Atlantis”) 21 in Avondale, Arizona. The premises consists of at least two rooms, an eating area and a bar 22 area. On March 29, 2022, while the establishment was open for business, one of the 23 managers of Atlantis, Victor M. Cabellos (“Victor M.”) used a mobile app, FuboTV, to 24 transmit a soccer match (“the Match”) to a television in Atlantis to a handful, “no more 25 than seven (7) people in a room,” of “Peruvian family members and friends in the restaurant 26 that day.” (Doc. 56 at 18-19.) A large television on the far-right wall showed the Match. 27 (Doc. 66 at 42.) There were other patrons of Atlantis in an adjoining room. 28 1 FuboTV is a paid app and streaming service, which receives its signal from the 2 internet, allowing users to stream sporting events and live TV channels. (Doc. 56 at 18-19, 3 23, 27.) Victor M. opened the app on his personal phone and selected the Match. (Doc. 66 4 at 42.) 5 Plaintiff, Innovative Sports Management Incorporated (“ISM”), which owns the 6 exclusive nationwide commercial distribution rights to the Match, sued Defendants 7 pursuant to 47 U.S.C. §§ 553 and 605 for the unauthorized broadcast of the Match in their 8 commercial establishment. 9 II. Legal Standard 10 Summary judgment is appropriate when, viewing the facts in a light most favorable 11 to the nonmoving party, there is no genuine dispute as to any material fact and the movant 12 is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it 13 “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, 14 Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return a 15 verdict for the nonmoving party based on the competing evidence. Id. 16 Summary judgment may also be entered “against a party who fails to make a 17 showing sufficient to establish the existence of an element essential to that party’s case, 18 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 19 477 U.S. 317, 322 (1986). In such a situation, the party seeking summary judgment bears 20 the initial burden of informing the Court of the “basis for its motion, and identifying those 21 portions of the [record] which it believes demonstrates the absence of a genuine issue of 22 material fact.” Id. at 323 (citations and internal quotations omitted). The burden then shifts 23 to the non-movant to establish the existence of a genuine dispute of material fact. Id. at 24 324. The non-movant may not simply rest upon the allegations of her pleadings. Rather, 25 the non-movant must point to “specific facts showing that there is a genuine issue for trial.” 26 Id. at 324. Furthermore, the non-movant “must do more than simply show that there is 27 some metaphysical doubt as to the material facts. . . . Where the record taken as a whole 28 could not lead a rational trier of fact to find for the non-moving party, there is no genuine 1 issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 2 (1986) (internal quotation and citation omitted). 3 III. Analysis 4 It is no defense to a claim under §§ 553 or 605 that the Match was displayed “via 5 the internet.” G and G Closed Circuit Events, LLC v. Liu, 45 F.4th 1113, 1117 (9th Cir. 6 2022). However, to withstand a motion for summary judgment, ISM must point to specific 7 facts showing that there is a genuine issue for trial. ISM carries the burden of proving that 8 Defendants’ display of the Match involved a transmission by cable or satellite. To establish 9 that Defendants violated § 553, ISM must produce evidence that would address whether 10 the fight was relayed by way of a “facility, consisting of a set of closed transmission paths” 11 or “provided to multiple subscribers within a community,” such that the Match could have 12 been transmitted by way of a “cable system.” To establish a violation of § 605, ISM would 13 need to produce evidence that Defendants’ display of the Match involved a “transmission 14 by radio of writing, signs, signals, pictures, and sounds of all kinds” or otherwise involved 15 a satellite transmission, or evidence showing that FuboTV obtained the Match from a 16 satellite or cable provider. Id. at 1117. 17 In its response, ISM did not reference any evidence described above. Instead, at oral 18 argument, counsel indicated that he would establish the method of relay through cross- 19 examination of Victor M. at trial. As the Ninth Circuit explained in Liu: “This posture made 20 it impossible for the district court to undertake the basic exercise of comparing the facts of 21 the case to the statutory language to assess whether §§ 553 or 605 regulate [Defendants’] 22 conduct.” Id. ISM has failed to meet its burden of production to establish the existence of 23 a question of fact regarding whether Defendants’ method of transmitting the Match was a 24 violation of either § 553 or § 605. Accordingly, 25 / / / 26 / / / 27 / / / 28 1 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 56) is □□ GRANTED. The Clerk shall enter judgment in favor of Defendants and terminate this || case. 4 Dated this 29th day of April, 2024. 5 6 b 4 bla _ 8 Do . Rayes 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-