Larry Polsky v. Dish Network Service, L.L.C.

Case: 15-41101 Document: 00513403242 Page: 1 Date Filed: 03/02/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41101 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
March 2, 2016
LARRY MARK POLSKY, et al, Member of a "Class", Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
DISH NETWORK SERVICE, L.L.C.,
Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CV-64
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Larry Mark Polsky appeals the district court’s final
judgment dismissing his action with prejudice on cross-motions for summary
judgment. In brief, Polsky, a licensed attorney, brought this action against
Defendant-Appellee Dish Network Service, L.L.C. (“Dish”), eventually
asserting, after several amendments to his complaint, three fundamental
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-41101
claims arising out of Dish’s internet and television services. On de novo review,
applying the same Rule 56 standards as the district court, 1 we affirm
essentially for the reasons set out by the district court in its August 7, 2015
memorandum opinion and order granting Dish’s motion for summary
judgment and denying Polsky’s motion.
Polsky asserted claims against Dish under what is currently Section
17.46(b)(24) of the Texas Deceptive Trade Practices Act (“TDTPA”) based on
Dish’s internet and television service, for which he entered into a contract in
late 2013. Polsky signed up for an internet plan that allowed him to use up to
30 gigabytes per month divided equally between two time periods: 15 gigabytes
per month between 8:00 a.m. and 2:00 a.m. (“peak hours”), and 15 gigabytes
per month between 2:00 a.m. and 8:00 a.m. (“off-peak hours”). As part of his
television service, he gained access to a Dish feature called the Hopper, which
would allow him to skip commercials under some circumstances. The Hopper
also allowed the user to view recorded television content in multiple locations.
First, although Polsky conceded he received the service for which he
paid, he argued Dish somehow harmed him by failing to inform him that it did
not actually monitor customers’ usage during non-peak hours—a fact Polsky
learned during discovery. Polsky claimed that if he had known Dish did not
monitor off-peak usage, he would have signed up for a lower tier of service and
simply used the internet more during off-peak hours, saving himself money.
The district court rejected this claim using an apt analogy:
During oral arguments, this Court searched without total success
to come up with an analogy to accurately portray this claim, but,
placed in a fast food context, Polsky’s complaint is as follows. A
consumer goes into a fast food restaurant and orders a large drink,
pays for a large drink, and receives a large drink. The restaurant
charges a fee for refills. After purchasing and receiving that drink,
1 Berquist v. Washington Mut. Bank, 500 F.3d 344, 348 (5th Cir. 2007).
2
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the consumer notices that the employees are too busy doing other
duties to monitor whether individuals are paying for refills or just
getting their own refills without paying. The purchaser of the large
drink then sues the restaurant, not for its failure to provide him
with the very item he ordered, but, instead, for not telling him that
they were too busy to see who got refills and who did not. If he had
been told this facet, he could have ordered a medium drink and
then just pilfered a refill without paying, thereby saving money.
This Court finds that there is no cause of action, regardless of
whether it is based in contract, tort, upon a consumer protections
statute, or in law or equity, that would lie against a merchant
because it did not disclose to a consumer a way in which, instead
of honestly paying for a good or service, that consumer could
surreptitiously obtain that good or service. No merchant is
required to inform a consumer that there is a way in which its
products or services can be bootlegged to avoid a lawful payment.
The Defendant’s Motion for Summary Judgment as to Polsky’s
Internet claim is granted. 2
We agree. There is no merit whatsoever to Polsky’s internet claim.
Second, Polsky argued that Dish wrongfully failed to disclose facts about
the Hopper’s limitations. Specifically, he claimed he was led to believe that he
could use the feature to skip commercials in a wide variety of television shows
when it fact the feature was limited to certain television programs from a
handful of television networks, and the feature usually was only available the
day after the program originally aired. As the district court noted, Dish’s
advertisements featuring the Hopper were replete with references to the
Hopper’s limitations, statements that restrictions applied, and notices that
potential customers should contact Dish for more details. Polsky conceded that
he never asked about the Hopper’s limitations, and he failed to point out any
affirmative misstatement by Dish regarding its service.
2 Polsky v. Dish Network Service, L.L.C., No. 1:14-cv-00064, slip op. at 3-4 (S.D. Tex.
Aug. 7, 2015).
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As the district court noted in its well-reasoned opinion, for Hopper to
prevail on his TDTPA claim, he would have to show, among other things, that
Dish failed to disclose information about the Hopper and that Dish intended to
dupe consumers by failing to disclose that information. 3 The district court
concluded that Polsky failed to present evidence on either of one of these points.
To the contrary, the record unequivocally shows that Dish plainly disclosed the
Hopper’s limitations, and Polsky has presented no competent summary
judgment evidence of any intent to deceive consumers. Thus, we necessarily
reach the same conclusion as the district court and affirm the dismissal of
Polsky’s Hopper claim.
Third and finally, Polsky argues that he is entitled to relief under Tex.
Bus. & Comm. Code § 17.50(a)(3), which provides: “(a) A consumer may
maintain an action where any of the following constitute a producing cause of
economic damages or damages for mental anguish: . . . (3) any unconscionable
action or course of action by any person . . . .” We concur with the district
court’s assessment:
The plaintiff’s assertions in this regard are at best hypothetical
and at worse made in bad faith. Plaintiff has suffered no injury
whatsoever from Dish’s conduct that was not precipitated by his
own actions. Thus, the plaintiff has no damages and thus lacks
standing to make the claim he has. 4
The district court set out other valid reasons for denying Polsky’s third claim,
but this is sufficient to bar relief.
In sum, Polsky’s claims are contrary to common sense and good faith, are
not supported by record evidence, and are frivolous. We conclude the district
3 Id. at 5 (citing, inter alia, Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 604 (Tex. App.
2001)).
4 Id. at 7.
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court properly dismissed them, and we affirm essentially for the reasons given
by the district court.
AFFIRMED.
5