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Directv, LLC v. Shirah

United States District Court, S.D. Georgia, Savannah Division

September 22, 2014

DIRECTV, LLC, Plaintiff,
HERMAN R. SHIRAH, JR., a/k/a Rudy Shirah, individually, and as an officer, director, shareholder and/or principal of Panacea of the Islands, Inc., d/b/a The Islander; and PANACEA OF THE ISLANDS, INC., d/b/a The Islander, Defendants.


WILLIAM T. MOORE, Jr., District Judge.

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 43.) Plaintiff has filed a response in opposition (Doc. 49), to which Defendants have filed a reply (Doc. 53). For the reasons that follow, Defendants' Motion for Summary Judgment is DENIED.


Plaintiff provides interstate broadcast satellite programming services on a subscription basis to both residential and commercial customers.[1] (Doc. 1 at 2.) On or about September 27, 2012, Plaintiff's agent discovered that Defendants were exhibiting Plaintiff's programming at their commercial establishment-The Islander-located at 221 Johnny Mercer Blvd., Savannah, Georgia. (Doc. 49 at 3.) Defendants' admit that their establishment was open to the public for business on the day in question. (Doc. 43 at 5-6.) The programming was being delivered to the establishment pursuant to an account established in 2002 by Defendants' former agent, Gale Woodard. (Doc. 49 at 3.)

While Defendants claim that Ms. Woodard opened a "commercial account" for the service, Plaintiff's account records indicate that the account was residential in nature. (Doc. 49, Attach. 1 ¶ 2.) Plaintiff's records and billing system also list the account as registered to Defendant Shirah individually at his home address. (Doc. 49 at 6.) Plaintiff's records further indicate that it shipped the equipment customers use to receive its programming to Defendant Shirah at this same address. (Doc. 49, Attach. 1 ¶ 8.) The actual installation of equipment was carried out by third-party retailer Circuit City, although no documentation has been presented as to where installation took place.[2] (Doc. 49 at 4.)

Neither party has presented a signed written contract governing Defendants' account. Rather, Plaintiff states that its business practice is to send its subscribers "customer agreements" on a yearly basis that outline the terms of the parties' agreements. (Doc. 49 at 5.) By accepting Plaintiff's services, subscribers are deemed to accept the terms contained within these customer agreements. (Id.) The customer agreement governing Defendants' account describes it as residential and states that Defendants may not exhibit the programming "in areas open to the public or in commercial establishments." (Doc. 49, Ex. C ¶ 1(i).) Defendants dispute ever receiving the customer agreement. (Doc. 53 at 10.)

Plaintiff discontinued service to Defendants on November 13, 2012, following its discovery of Defendants' public display of its programming in their commercial establishment. (Id. at 5.) On April 30, 2013, Plaintiff filed this action alleging conversion, violations of the Federal Communications Act ("FCA") and the Electronic Communications Privacy Act ("ECPA"), and seeking punitive damages and injunctive relief. (Doc. 1.) On November 13, 2013, Defendants moved for summary judgment arguing that Plaintiff is unable to show a material issue of fact with regard to their potential liability because Plaintiff cannot prove the account was for residential service only. (Doc. 43) Prior to addressing Defendants' motion, this Court dismissed count three of Plaintiff's complaint alleging civil conversion, finding that Plaintiff had failed to state a claim upon which relief could be granted. (Doc. 61.) Accordingly, only Plaintiff's claims based on violations of the FCA and ECPA are at issue for purposes of Defendants' motion for summary judgment.



According to Federal Rule of Civil Procedure 56(a), "[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Such a motion must be granted "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." Id . The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56 advisory committee notes).

Summary judgment is appropriate when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). The substantive law governing the action determines whether an element is essential. DeLong Equip. Co. v. Wash. Mills Abrasive Co. , 887 F.2d 1499, 1505 (11th Cir. 1989).

As the Supreme Court explained:

[A] party seeking summary judgment always 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.

Celotex , 477 U.S. at 323. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts that are material to the nonmovant's case. Clark v. ...

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