Opinion
No. 04 Civ. 3100 (KNF).
March 14, 2005
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Garden City Boxing Club, Inc. ("GCBC"), alleges that defendants Jewel Alicia Rice ("Rice") and Jewel's Restaurant, Inc. ("Restaurant"), engaged in the illegal interception of cable or satellite television programming signals and the modification or use of devices to effect that interception, in violation of the Cable Communications Policy Act, as amended, 47 U.S.C. §§ 553 and 605 ("Section 553" and "Section 605," respectively). GCBC contends that the defendants did not respond timely to GCBC's request, pursuant to Fed.R.Civ.P. 36(a), that the defendants admit certain facts relevant to the plaintiff's claims in this action ("Rule 36 Request"). The defendants contend that they served a response to the Rule 36 Request timely ("Rule 36 Response"). Nevertheless, the defendants have also have made an application, pursuant to Fed.R.Civ.P. 36(b), for relief from any admissions they might be deemed to have made. Also before the Court are cross-motions for summary judgment by GCBC and the defendants.
For the reasons set forth below, the defendants' Rule 36(b) application is granted, GCBC's application for summary judgment is denied, and the defendants' application for summary judgment is granted, in part, and denied, in part.
II. BACKGROUND AND FACTS
GCBC alleges that it was granted the exclusive right to distribute, via closed circuit television and encrypted satellite signal, the November 8, 2003 transmission of a boxing match between Antonio Tarver and Roy Jones Jr. ("boxing program"). The Restaurant is a commercial establishment, and Rice is its owner and manager. According to the defendants, Rice was the individual with supervisory capacity and control over the Restaurant on November 8, 2003.
GCBC contends that the defendants intercepted the television signal of the boxing program unlawfully and exhibited it at the Restaurant at the time of its transmission, willfully and for the purposes of commercial advantage and private financial gain, in violation of 47 U.S.C. §§ 553 and 605(a) ("illegal interception claims"). GCBC alleges further that the defendants and/or their agents modified a device or utilized equipment unlawfully, knowing or having reason to know that the device or equipment was primarily of assistance in the unauthorized decryption of satellite cable programming, thereby violating 47 U.S.C. § 605(e)(4).
After initiating this action, the plaintiff requested, pursuant to Fed.R.Civ.P. 36(a), that the defendants admit that: (1) the Restaurant was open for business on the evening of November 8, 2003; (2) the Restaurant had the capability of receiving satellite and/or cable television broadcasts at that time; (3) the Restaurant exhibited some or all of the boxing program; (4) the Restaurant was not authorized by GCBC or any other entity to exhibit the boxing program; (5) the Restaurant was a commercial enterprise and not a residential dwelling; (6) Rice was the individual with supervisory capacity and control over the activities that occurred at the Restaurant on November 8, 2003; (7) Rice benefitted financially from the operation of the Restaurant; and (8) the Restaurant intercepted and exhibited the November 8, 2003 transmission of the boxing program knowingly and willfully. The Rule 36 Request was served upon the defendants' counsel on July 23, 2004. GCBC maintains that the defendants did not respond to the Rule 36 Request within the 30-day period provided by Fed.R.Civ.P. 36(a). Accordingly, on August 27, 2004, GCBC served and filed a notice, pursuant to Fed.R.Civ.P. 36(b), which indicated that the statements contained in the Request to Admit were deemed admitted.
The defendants contend that they served a response to the Request to Admit timely, on August 20, 2004. In their Rule 36 Response, a copy of which the defendants have submitted in support of their Rule 36(b) application, the defendants denied that the Restaurant exhibited any portion of the boxing program or intercepted its television signal. The defendants also declined to admit that the Restaurant had the capability of receiving satellite and/or cable television broadcasts, on the ground that the statement was compound. Although the defendants did not admit the sixth statement or deny the seventh statement in the Request to Admit in toto, the defendants have essentially done so in their statement pursuant to Local Civil Rule 56.1 ("Rule 56.1 statement"). In their Rule 56.1 statement, the defendants note that Rice "was the individual with supervisory capacity and control over the activities occurring within the establishment on November 8, 2003," and that Rice "received no financial benefit from the operations of [the Restaurant], regard [sic] the November 8, 2003 Tarver/Jones program."
In support of their motion for summary judgment and their Rule 36(b) application, the defendants have submitted, inter alia: (1) an affidavit of Rice ("Rice affidavit"); (2) an affirmation of Joseph A. Altman ("Altman"), counsel to the defendants ("Altman affirmation"); (3) a copy of the Rule 36 Response; and (4) a letter from Altman to the plaintiff's counsel, dated October 6, 2004 ("October 6th letter"), stating that a copy of the Rule 36 Response was enclosed and had been served previously on August 20, 2004.
In support of its motion for summary judgment, GCBC has submitted, inter alia: (1) an affidavit of Joseph Gagliardi, president of GCBC ("Gagliardi affidavit"); (2) an affirmation of Julie Cohen Lonstein, counsel to the plaintiff; (3) an affidavit of Edgardo Rodriguez, a private investigator who was present at the Restaurant on November 8, 2003 ("Rodriguez affidavit"); and (4) a copy of the Rule 36 Request, along with a certificate of service.
III. DISCUSSION
Timeliness of Rule 36 Response
It must be determined whether the defendants' Rule 36 Response was served timely. The only competent evidence submitted by the defendants that might demonstrate timely service are the Rice affidavit and the Altman affirmation.
In his affirmation, Altman states that the defendants did respond to the Rule 36 Request, and he suggests implicitly that service was made prior to an October 5, 2004 conference with the Court. Altman does not indicate on what date service might have been made or whether that date was within the 30-day period provided by Rule 36(a). Altman states:
. . . when I discovered that the basis of the Plaintiff's Summary Judgment Motion was to be based upon a claimed failure to serve a response to [the Rule 36 Request], [I] advised the Plaintiff's attorney not only was this not a proper motion but inaccurate, as I had a distinct memory of the Defendant's meeting in my office, signing the document and the mailing of the same. . . .
Altman Affirmation ¶ 10.
Altman states further that this version of events is "confirmed" by the copies of the Rule 36 Response and October 6th letter that are attached as Exhibits A and B, respectively, to the papers submitted by the defendants in connection with the instant motions.
In her affidavit, Rice states that she
. . . remembers receiving at least two (2) telephone calls from my attorneys [sic] office with respect to signing papers for this action which the occuered [sic] on August 20, 2004. That your deponent went to Mr. Altman's office and reviewed the Plaintiff's [Rule 36 Request] and my response thereto, which is hereto annexed as Exhibit "A". That my signature is affixed to the document as is my signature affixed to the Verified Answer, see Plaintiff's Exhibit "B".
Rice Affidavit ¶ 13.
Notwithstanding the foregoing statements by Altman and Rice, the Rule 36 Response is not signed by Rice, but rather by Altman. It is not clear whether Rice's statement — "[t]hat my signature is affixed to the document as is my signature affixed to the Verified Answer" — is intended to convey that she signed the verification at the same time as she signed the Rule 36 Response, or merely that she signed the two documents in the same manner. The latter reading of the statement would render it both irrelevant and, since the Rule 36 Response does not bear her signature, incredible. The former reading would render the statement incredible for an additional reason: While the verification is, in fact, signed by Rice, that signature is dated August 2, 2004, and the affidavit of service attached thereto indicates that it was served upon the plaintiff on August 3, 2004. Consequently, Rice could not have signed the verification on August 20, 2004.
Due to these inconsistencies, the Rice affidavit and the Altman affirmation, to the extent that they purport to prove timely service, are not credible. Moreover, even if the statements contained in these documents were credible, they would establish only that the Rule 36 Response was prepared on August 20, 2004, and mailed. Altman does not indicate with any precision when the document might have been mailed, to whom it was mailed or the address to which it was sent. Rice's affidavit does not contain any statements about service of the document. In light of the foregoing, and due to the absence of any other competent, credible evidence of timely service, the Court finds that the defendants' Rule 36 Response was untimely. Accordingly, the statements contained in the Rule 36 Request are deemed admitted, pursuant to Fed.R.Civ.P. 36(a).
Withdrawal of Admissions
Rule 36(b) provides, in pertinent part: "[T]he court may permit withdrawal or amendment [of an admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits." The provision for withdrawal or amendment of an admission reflects the importance of resolving an action on its merits. See Fed.R.Civ.P. 36, Advisory Committee Notes to 1970 Amendment.
Permitting a party to dispute a central issue in an action may serve the presentation of the merits of an action. See, e.g., Local Union No. 38 v. Tripodi, 913 F. Supp. 290, 294 (S.D.N.Y. 1996). As the admissions Rice and the Restaurant wish to withdraw are of facts central to the claims asserted against them by GCBC, permitting the defendants to dispute those facts would subserve the presentation of the merits in this action.
This is not to say that a request for an admission of a material, disputed fact is improper. The defendants' argument to the contrary is foreclosed by Rule 36 itself, as well as the Advisory Committee Notes to that rule. See Fed.R.Civ.P. 36(a) (permitting a request for admission of "any matters within the scope of Rule 26(b)(1) . . . that relate to statements or opinions of fact," and barring a party from objecting to a request for admission on the ground that the matter "presents a genuine issue for trial"); Fed.R.Civ.P. 36, Advisory Committee Notes to 1970 Amendment (noting that the proper response to a request for admission of a disputed matter is not an objection, but "an answer").
Withdrawal of an admission would require the party who obtained it to prove the matter does not, without more, constitute prejudice, within the meaning of Rule 36(b). See Security Ins. Co. of Hartford v. Trustmark Ins. Co., 217 F.R.D. 296, 298 (D. Conn. 2002) (citations omitted). GCBC has made no showing that its presentation of the merits of the case would be prejudiced by permitting the defendants to withdraw their admissions. Moreover, no such prejudice is apparent from the record before the Court.
In light of the foregoing, the defendants' application for permission to withdraw their admissions is granted. Accordingly, the defendants shall be bound by the answers set forth in the Rule 36 Response, notwithstanding its untimely service.
Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). The moving party's "burden will be satisfied if [it] can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in [her] favor." Id. at 256, 2514. Summary judgment should be granted only if no rational jury could find in favor of the non-moving party. See Heilwell v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994). A. Sections 553(a)(1) 605(a)
The illegal interception claims allege violations of Sections 605(a) and 553(a)(1), respectively.
Section 605(a) provides, in pertinent part:
No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. . . . No person having received any intercepted radio communication . . . shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.
Section 553(a)(1) provides, in pertinent part: "No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law."
Section 553(a)(1) and 605(a) both prohibit the unauthorized interception and reception of cable programming services which originate and are delivered via satellite or by other means of over-the-air signal transmission. See Time Warner Cable of New York City v. Barnes, 13 F. Supp. 2d 543, 547-48 (S.D.N.Y. 1998) (citing International Cablevision, Inc. v. Sykes and Noel, 75 F.3d 123, 133 [2d Cir 1996]); Cablevision Systems New York City Corp. v. Lokshin, 980 F. Supp. 107, 112 (E.D.N.Y. 1997).
"In contrast to section 553, which by its statutory language applies only to transmissions via cable systems, section 605(a) applies to `the interception of cable-borne, as well as over-the-air, pay television' where cable-borne transmissions originate as satellite transmissions." Lokshin, 980 F. Supp. at 112 (quoting Sykes, 75 F.3d at 130). Therefore, "when pay television programming is transmitted over both cable and satellite mediums, both statutes apply. . . ." Lokshin, 980 F. Supp. at 112 (citing Sykes, 75 F.3d at 130).
Sections 553(c)(1) and 605(e)(3)(A) provide private rights of action to any person aggrieved by a violation of the above-noted provisions of Sections 553 and 605, respectively.
In this action, it is undisputed that: (a) the Restaurant is a commercial enterprise that was open for business on the evening of November 8, 2003; (b) the Restaurant was not authorized to exhibit the broadcast of the boxing program; and (c) Rice is the owner and manager of the Restaurant and had supervisory control over the activities occurring at the Restaurant on November 8, 2003. In addition, GCBC has submitted uncontroverted evidence that it possessed the exclusive right to distribute the boxing program in New York, and did so via closed circuit television and encrypted satellite signal. See Gagliardi Affidavit ¶¶ 3, 11-14. GCBC has also presented evidence that the boxing program was exhibited to customers at the Restaurant on at least one television set, on the evening of November 8, 2003. See Rodriguez Affidavit.
Some of these undisputed facts derive from the defendants' Rule 36 Response. The defendants contend that admissions obtained under Rule 36 cannot form the basis for summary judgment. This contention is contradicted by Rule 56(c), as well as by longstanding precedent in the Second Circuit. See Fed.R.Civ.P. 56(c) (permitting entry of judgment when evidence, including the "admissions on file," demonstrate the absence of a genuine issue of material fact); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir. 1966) ("It appears well settled that a failure to respond to a request to admit will permit the District Court to enter summary judgment if the facts as admitted are dispositive. This would follow directly from [Rule 36], which says that `each of the matters of which an admission is requested shall be deemed admitted unless' the other party serves the answer within the proper time. Here defendant replied, but too late. The District Court could have granted summary judgment on the claim, as the request to admit is comprehensive."); see also Donovan v. Carls Drug Co., 703 F.2d 650, 651 (2d Cir. 983) (Rule 36(a) admissions "may be used for Rule 56 summary judgment."), rejected on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133-34 n. 10, 108 S. Ct. 1677, 1680 n. 10 (1988).
The defendants have submitted evidence that the boxing program was not exhibited at the Restaurant on November 8, 2003. See Rice Affidavit ¶¶ 7, 14.
The parties have satisfied their respective burdens of production with respect to the illegal interception claims. However, the affidavits of Rodriguez and Rice demonstrate that a genuine dispute exists about a question of fact material to both of these claims, namely whether the boxing program was exhibited at the Restaurant on November 8, 2003.
The existence of this disputed question of material fact requires that the cross-motions for summary judgment each be denied with respect to the illegal interception claims.
B. Section 605(e)(4)
The complaint also alleges a violation of Section 605(e)(4), which prohibits any person from "manufactur[ing], assembl[ing], modif[ying], import[ing], export[ing], sell[ing], or distribut[ing] any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section. . . ."
In this action, GCBC alleges that the defendants violated this statutory provision by modifying (and/or causing their agents to modify) a device or by "utilizing equipment," knowing or having reason to know that the device or equipment is used for certain prohibited activities. GCBC has submitted evidence that the Restaurant exhibited the boxing program without authorization. However, without more, this does not support a conclusion that either defendant modified a device in order to intercept the signal for the boxing program, in violation of Section 605(e)(4). See, e.g., Garden City Boxing Club, Inc. v. Giambra, No. 02-CV-839S, 2004 WL 1698633, at *2 (W.D.N.Y. July 24, 2004). GCBC has not submitted any other evidence that would permit a reasonable trier of fact to conclude that either defendant modified a device. The above-noted evidence does support a conclusion that the defendants utilized equipment in order to intercept the signal for the boxing program. However, utilization of equipment is not among the activities proscribed by Section 605(e)(4).
Accordingly, with respect to the Section 605(e)(4) claim, GCBC's application for summary judgment must be denied and the defendants' application for summary judgment must be granted.
IV. CONCLUSION
For the reasons set forth above, the defendants' Rule 36(b) application is granted, GCBC's application for summary judgment is denied, and the defendants' application for summary judgment is granted with respect to the Section 605(e)(4) claim and denied with respect to the Section 553(a)(1) and 605(a) claims.
In light of the foregoing, IT IS HEREBY ORDERED that:
(1) any request for a jury trial shall be served and filed on or before March 21, 2005;
(2) the parties shall confer and, thereafter, on or before April 1, 2005, shall submit to the Court their joint pretrial order, along with any proposed voir dire questions, requests to charge and verdict form;
(3) a final pretrial conference shall be held on April 7, 2003, at 3:30 p.m., in courtroom 519, 40 Centre Street, New York, New York; and
(4) the trial of this action shall commence on April 20, 2005, at 10:00 a.m., in courtroom 519, 40 Centre Street, New York, New York.
SO ORDERED.