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Directv, LLC v. Shirah

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

March 24, 2015

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 Plaintiff's Motion for Summary Judgment. (Doc. 63.) Defendants have filed a response in opposition. (Doc. 71.) In addition, Defendants have filed a Motion to Strike[1] (Doc. 68) an affidavit offered in support of Plaintiff's Motion for Summary Judgment. Plaintiff has filed a response to the Motion to Strike (Doc. 70), to which Defendants have filed a reply (Doc. 73). For the reasons that follow, Defendants' Motion to Strike is DENIED. Plaintiff's Motion for Summary Judgment is GRANTED. The parties shall have thirty days from the date of this order to file briefs regarding the appropriate damages, costs and attorney's fees regarding Plaintiff's Federal Communications Act claim. Because Plaintiff's Electronic Communications Privacy Act claim was not addressed by Plaintiff's Motion for Summary Judgment, this case will proceed to trial on that claim.


Plaintiff provides interstate broadcast satellite programming services on a subscription basis to both residential and commercial customers.[2] (Doc. 1 at 2.) On or about September 27, 2012, Defendants were exhibiting Plaintiff's programming at their commercial establishment- The Islander-located at 221 Johnny Mercer Blvd., Savannah, Georgia. (Doc. 63, Attach. 10 at ¶¶ 2, 8.) Defendants admit that their establishment was open to the public for business on the day in question. (Id. at ¶ 10.) The public display of Plaintiff's programming at the establishment was witnessed by Plaintiff's agent, Jeffrey Dail. (Id. at ¶¶ 11-12.) The programming was being delivered to the establishment pursuant to an account established in 2002 by Defendants' former agent, Gale Woodard. (Doc. 71 at 3.)

The initial sale of Plaintiff's programming service to Defendants and the installation of the equipment necessary to receive the programming was carried out by third-party retailer Circuit City. (Doc. 71 at 3-4.) However, neither party has produced any evidence documenting the specifics of that initial transaction.[3] (Doc. 71 at 4.) Defendants maintain that Ms. Woodard opened a "commercial account" for the programming service. (Doc. 71, Attach. 1 at 3.) However, Plaintiff states that no such commercial account exists. (Doc. 66 ¶ 13.) Rather, Plaintiff's records and billing system list a residential account registered to Defendant Shirah individually at his home address. (Id. ¶ 14.) Defendants state that the designation of the account as residential result of a clerical error by Plaintiff. (Doc. 71 at 5.)

Neither party has presented a signed written contract governing Defendants' account. Rather, Plaintiff states that by accepting Plaintiff's services, its subscribers are deemed to have accepted its terms of service. (Doc. 71 at 4.) The customer agreement Plaintiff argues pertains to 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. 71 at 3.)

Plaintiff discontinued service to Defendants on November 13, 2012, following its discovery of Defendants' public display of its programming in their commercial establishment. (Doc. 66 at 10.) 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.) Plaintiff's claim for civil conversion was dismissed by order of this Court on March 12, 2014. (Doc. 61.) On September 22, 2014, the Court denied Defendants' Motion for Summary Judgment with regard to Plaintiff's FCA and ECPA claims. (Doc. 77.)

Plaintiff has now moved for summary judgment, arguing that no material issue of fact exists regarding Defendants' liability under the FCA. (Doc. 63.) Plaintiff has not moved for summary judgment with regard to its claim under the ECPA. In support of its motion, Plaintiff has filed an affidavit by its vice-president of Risk Management, Kent Mader. (Doc. 66.) Defendants have filed a response in opposition. (Doc. 71.) In addition, Defendants have filed a Motion to Strike Mr. Nader's affidavit (Doc. 68), to which Plaintiff has filed a response (Doc. 70). Finally, Defendants have also filed a reply in support of their Motion to Strike. (Doc. 73.)



As an initial matter, the Court addresses Defendants' Motion to Strike.[4] (Doc. 68.) In their motion, Defendants include a myriad of arguments why Mr. Nader's affidavit should not be considered by the Court, none of which have merit. The Court will not waste time dealing with each of Defendants' individual objections to the various paragraphs, but will instead respond generally to Defendants' concerns.

First, Defendants make the broad assertion that the affidavit should be struck entirely because it is not made upon personal knowledge of the affiant, fails to set out facts that would be admissible in evidence, and fails to demonstrate the affiant's competency to testify on the matters stated.[5] (Doc. 68 at 1.) However, it appears plainly evident that Mr. Mader's testimony is based on his personal knowledge of Plaintiff's business operations and his review of Plaintiff's internal account documents. In addition, the Court finds Mr. Mader is competent to testify concerning the content of these documents given Mr. Mader's position as the Plaintiff's vice-president of risk management. Lastly, the Court finds no reason to question the admissibility of the evidence underlying Mr. Mader's affidavit. Defendants' arguments concerning hearsay, as discussed below, are without merit and have no impact on the admissibility of Mr. Nader's statements.

Next, Defendants object specifically to nine of the sixteen paragraphs for lack of relevancy. (Doc. 68, Attach. 1 at 2-4.) The paragraphs in question provide a general overview of Plaintiff's business and internal procedures. The Court agrees that Mr. Nader's statements are of little interest in this case, although they do appear to give some foundational context to Mr. Nader's more pertinent testimony concerning facts relevant to this action. In any case, the Court finds striking these statements, even if they are of minimal probative value, would be a waste of time. See, e.g., Kirk v. Met. Life. Ins. Co., 331 F.Supp. 1361, 1362 (M. D. Fla. 2003) ("Motions to strike on the grounds of insufficiency, immateriality, irrelevancy and redundancy are not favored, often being considered time wasters, ' and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." (quoting Poston v. Am. President Lines, Ltd., 452 F.Supp. 568, 570 (S.D. Fla. 1978))). Due to their innocuous nature, the Court will not bother to strike these paragraphs for lack of relevancy.

Defendants also object to some statements by Mr. Nader on grounds that they contain inadmissible hearsay. (Doc. 68, Attach. 1 at 2-4.) Hearsay is a statement, other than one made by the declarant, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c) Contrary to Defendants' arguments, only one of Mr. Nader's statements appears to implicate the statement of another person in any way. In paragraph 12 of his affidavit, Mr. Nader states that Plaintiff's agent, Jeffrey Dail, observed Plaintiff's programming being displayed at Defendants' commercial establishment. (Doc. 66 at 6.) While this paragraph is based on the statements of Mr. Dail, rendering it hearsay, the Court notes that Mr. Dail's own affidavit and statements on this incident are already part of the record in this case.[6] (Doc. 66 at 12-13.) As a result, the Court sees no reason to strike this statement. See Ross v. Corp. of Mercer Univ., 506 F.Supp.2d 1325, 1335 (M.D. Ga. ...

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