Joe Hand Promotions, Inc. v. Molly Malone's LLC ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v. Civil Action No. 19-3479 (JEB)
MOLLY MALONE’S LLC, et al.,
Defendants.
MEMORANDUM OPINION
In this Federal Communications Act case, Plaintiff Joe Hand Promotions, Inc., a
commercial distributor of sports and entertainment programming, accuses a slew of Defendants
of illegally intercepting and broadcasting an Ultimate Fighting Championship bout at a D.C. bar
named Finn McCool’s on December 30, 2016. As this litigation has progressed, however,
Plaintiff has had difficulty proving who exactly owned the bar on that date. In its most recent
Complaint, Joe Hand listed no fewer than eleven Defendants. The Clerk of Court has since
entered default against two of those, and four others have been granted summary judgment.
Three of the remaining Defendants now move for summary judgment pursuant to Federal Rule
of Civil Procedure 56. They assert that they had neither ownership nor control of the bar on the
date of the broadcast. As Plaintiff has not sufficiently controverted the evidence that
demonstrates these Defendants’ lack of involvement, the Court will grant their Motion.
I. Background
It is undisputed that Plaintiff held the exclusive right to license and distribute the
Ultimate Fighting Championship 207: Nunes v. Rousey broadcast, which aired on December 30,
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2016. See ECF No. 31 (Sec. Am. Compl.), ¶¶ 1, 17. Without obtaining the proper authorization,
Defendants allegedly intercepted and exhibited the program to patrons at the bar Finn McCool’s,
located at 713 8th Street, S.E., in Washington, in violation of the Federal Communications Act.
Id., ¶¶ 2, 20–22.
While Plaintiff’s allegations are relatively straightforward, identifying the proper
Defendants has proven a winding path. Joe Hand’s First Amended Complaint named six
Defendants: Molly Malone’s LLC dba Finn McCool’s, 713 Partners LLC dba Finn McCool’s,
Xavier Cervera, Andrea Gentile, William A. Sport, and Barrack’s Row Ent Group, LLC. See
ECF No. 5. When Molly Malone’s and Barrack’s Row failed to respond, the Clerk of Court
entered default against them on March 23, 2020. See ECF Nos. 16, 17. On July 8, 2020,
Plaintiff filed a Second Amended Complaint, which included allegations of wrongdoing identical
to those in its prior Complaint, but added five additional Defendants: William J. Nimmo, Greg
Cotter, Michael Cheung, Edward Cheung, and Ricardo Cervera. See SAC, ¶¶ 8–12.
Nimmo, Cotter, Michael Cheung, and Edward Cheung then moved for summary
judgment, arguing that they did not have a financial interest in Finn McCool’s or operational or
managerial control over the bar when the broadcast allegedly took place. See ECF No. 45. Joe
Hand opposed these Defendants’ motion but failed to file a statement of disputed material facts
as required by Local Civil Rule 7(h). See ECF No. 46. The Court accordingly considered the
facts they set forth as undisputed. Joe Hand Promotions, Inc. v. Molly Malone’s LLC, No. 19-
3479, 2020 WL 5816219, at *1–2 (D.D.C. Sept. 30, 2020) (citing LCvR 7(h)(1)). It thus granted
summary judgment to these Defendants on September 30, 2020. Id. at *4.
This time around, three other Defendants — 713 Partners, Andrea Gentile, and William
A. Sport — collectively move for summary judgment. See ECF No. 67 (Def. MSJ). Plaintiff
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opposes their Motion, see ECF No. 72 (Pl. Opp.), and this time submits a Rule 7(h) statement
disputing some of these Defendants’ facts. See ECF No. 72-1 (Pl. SMF). The Court considers
other unchallenged facts asserted by the moving Defendants in their affidavits and declarations
as true. See Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)
(citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)) (“Factual assertions in the moving
party’s affidavits or declarations may be accepted as true unless the opposing party submits its
own affidavits[,] . . . declarations[,] or documentary evidence to the contrary.”).
The procedural background now complete, the Court will set out the facts relevant to the
instant Motion in its analysis below.
II. Legal Standard
Federal Rule of Civil Procedure 56(a) requires the Court “to grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” A fact is “material” if it would change the outcome of
the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006), and a dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Liberty Lobby, 477 U.S. at
248; see also Scott v. Harris, 550 U.S. 372, 380 (2007). When a motion for summary judgment
is under consideration, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Liberty Lobby, 477 U.S. at 255 (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). The nonmoving party’s opposition, however,
must consist of more than mere unsupported allegations. See Fed. R. Civ. P. 56(e); Celotex
Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). “A party asserting that a fact cannot be or is
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genuinely disputed must support the assertion” by “citing to particular parts of materials in the
record,” such as affidavits, declarations, or other evidence. See Fed. R. Civ. P. 56(c)(1)(A).
III. Analysis
Joe Hand’s Second Amended Complaint alleges that eleven Defendants violated the FCA
by illegally intercepting and exhibiting the program without authorization. See 47 U.S.C. § 553(prohibiting theft of communications distributed over cable-television systems). As mentioned
previously, the question raised in this Motion is whether three of those Defendants are liable.
The pertinent facts, viewed in the light most favorable to Plaintiff, are as follows. Sport and
Gentile once held interests in Molly Malone’s LLC, which owned and operated Finn McCool’s.
See ECF No. 67-1 (Def. SMF), Exh. A (Affidavit of Andrea Gentile), ¶ 3; Exh. C (Affidavit of
William A. Sport), ¶ 3; cf. Pl. SMF, ¶ 13. They both sold the entirety of their interests in the
company to Barrack’s Row Ent Group LLC on December 31, 2012. See Gentile Aff., ¶ 3; Sport
Aff., ¶ 3; cf. Pl. SMF, ¶ 13. Sport was compensated for his stake with a promissory note secured
by the assets of Molly Malone’s and Barrack’s Row. See Def. SMF, Exh. D (Supplemental
Declaration of William A. Sport), ¶ 6; cf. id., Exh. A (UCC Financing Statement). Gentile, who
owned a relatively small share of Molly Malone’s to begin with, see Gentile Aff., Exh. A,
averred that the sale marked the end of her connection to the company. See Def. SMF, Exh. B
(Response of Andrea Gentile to Pl.’s Request for Admission), ¶¶ 1–3.
Barrack’s Row defaulted on the promissory note to Sport sometime in late 2016. See
Sport Suppl. Decl., ¶ 7. As the secured creditor, Sport was entitled to seize the assets of the
company to make good on the debt. Id., Exh. A. Barrack’s Row accordingly entered a tender-
of-collateral agreement with Sport on November 15, 2016. See Def. SMF, ¶ 6; Sport Suppl.
Decl., Exh. D-2 (Tender-of-Collateral Agreement). In that agreement, Barrack’s Row
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represented that it still owned Molly Malone’s, and it agreed to deliver the assets of that
company in satisfaction of its obligation to Sport. See Tender-of-Collateral Agreement, ¶¶ 1–2.
The agreement, however, was conditioned on Sport’s final approval of the assets, and, “unless
otherwise specified,” those assets would not be conveyed until January 1, 2017. Id., ¶ 7(a)-(b).
In the meantime, Barrack’s Row was required to “own and operate” all the assets. Id. at ¶ 7(b);
see also Sport Suppl. Decl., ¶ 7.
On December 31, 2016, Sport assigned his right to take possession of Molly Malone’s
assets to an LLC he formed for the purpose, 713 Partners. See Def. SMF, ¶ 7; see also Sport
Suppl. Decl., Exh. D-3 (Assignment). That assignment specifically prohibited transfer of Finn
McCool’s from Barrack’s Row until after January 1, 2017. See Def. SMF, ¶ 8. As mentioned
above, Joe Hand alleges that Finn McCool’s intercepted the broadcast on December 30, 2016.
See SAC, ¶ 1. These facts, taken together, demonstrate that all three Defendants “had no role
whatsoever in the control, ownership or operation of” Finn McCool’s on the date of the alleged
wrongdoing. See Sport Suppl. Decl., ¶ 5; see also Sport Aff., ¶¶ 4–5; Gentile Aff., ¶¶ 4–5.
Joe Hand does not dispute the terms of the tender-of-collateral agreement, see Pl. SMF,
¶ 6; cf. Def. SMF, ¶ 6, the assignment to 713 Partners on December 31, see Pl. SMF, ¶ 7; cf. Def.
SMF, ¶ 7, or the conditions restricting transfer of Finn McCool’s until after January 1. See Pl.
SMF, ¶ 8; cf. Def. SMF, ¶ 8. It nevertheless contends that Barrack’s Row returned ownership
and control of Finn McCool’s to Sport and Gentile on August 31, 2016. See Pl. SMF, ¶ 3. As
evidence, it presents a letter dated August 30, 2016, from Barrack’s Row’s counsel, alleging that
Sport and Gentile had breached the terms of a settlement agreement by refusing to take back
ownership of Molly Malone’s. Id., Exh. A (Breach-of-Settlement Letter) at 1–2. The letter
declares that Barrack’s Row was “turning over control” of assets to Sport, Gentile, and Xavier
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Cervera effective the following day. Id. at 2. Additionally, Plaintiff points to a letter Sport’s
attorney sent to the Washington Tax Office that indicates Sport advanced money to Barrack’s
Row beginning in September 2016, so that the company could meet its “[i]mmediate liabilities
for payroll, current taxes, and rent.” Id., Exh. B at 3. According to Plaintiff, by advancing funds
for the bar to meet those obligations, Sport “acted on behalf of” Finn McCool’s. See Pl. Opp. at
4.
As for 713 Properties, Joe Hand asserts that the company “was operating” Finn McCool’s
on the date of the broadcast, citing a series of business registrations the company made in the
name of Finn McCool’s from October through December of 2016. Id. at 5–6. On October 11,
for instance, 713 Properties received a certificate from the Washington Department of Consumer
and Regulatory Affairs to operate under the trade name Finn McCool’s. Id.; see also Pl. SMF,
Exh. C. The operating agreement for 713 Partners, executed by Sport on November 22, states
that the company would do business “under the name 713 Partners” or “Finn McCool’s.” See Pl.
Opp. at 5; see also Pl. SMF, Exh. E. Further, 713 Partners was registered with the District of
Columbia Tax and Revenue Office at the bar’s address as of December 8, 2016. See Pl. Opp. at
5; see also Pl. SMF, Exh. D.
While all of this is interesting, nothing here casts doubt on the dispositive nature of the
November 15 tender-of-collateral agreement, which Plaintiff concedes is valid. In that
agreement, Barrack’s Row represented that it then owned Finn McCool’s. That dictates the
outcome here. Suppose that the Court inferred that Barrack’s Row effectively returned Finn
McCool’s to Sport and Gentile by sending the breach-of-settlement letter on August 30. Even if
that were true, the company must have resumed ownership of the bar by November 15, when it
entered the tender-of-collateral agreement with Sport. Again, Joe Hand does not dispute that
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Barrack’s Row claimed ownership of Finn McCool’s on that later date. See Tender-of-Collateral
Agreement, ¶ 2; see also Def. SMF, ¶ 6; cf. Pl. SMF, ¶ 6. The breach-of-settlement letter, on
which Plaintiff relies extensively for support, see, e.g., Pl. SMF, ¶¶ 3–5, 13–15, 17, 18, thus turns
out to be a glass jaw.
Nor does Plaintiff’s evidence indicating that Sport made loans to Barrack’s Row and
incorporated 713 Partners to do business as Finn McCool’s before the date of the broadcast
change the outcome. See Pl. SMF Exhs. B, C, D, E. Those facts merely align with the actions of
someone preparing to take over the operations of an ongoing business. Indeed, according to the
tender-of-collateral agreement, that is precisely what Sport was doing up until January 1, 2017,
when 713 Partners could take over the bar. See Tender-of-Collateral Agreement, ¶ 7(b); see also
Pl. SMF, ¶ 8; Sport Suppl. Decl., Exh. C. Plaintiff’s evidence thus does not controvert Sport’s
sworn statement that he only assumed ownership and control of the bar through 713 Partners in
2017. His testimony is therefore accepted as true.
The Court acknowledges some factual discrepancies between this decision and its grant
of summary judgment to the previous Defendants. See Molly Malone’s LLC, 2020 WL
5816219, at *1–3. While many of the undisputed facts in the instant Motion overlap with the
assertions of the previous Defendants, other aspects of the two accounts appear incompatible.
Because Plaintiff has allowed some conflicting elements of the two accounts to go unchallenged,
the Court has been required to accept both as true.
IV. Conclusion
Based on the undisputed evidence before the Court, Defendants had no interest or
involvement, financial or otherwise, with the establishment when the broadcast took place. As a
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result, they cannot have violated the FCA as a matter of law. The Court therefore will grant their
Motion for Summary Judgment. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 1, 2021
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