United States District Court, E.D. Wisconsin
J.P. Stadtmueller U.S. District Judge
Plaintiff DIRECTV LLC, (“DIRECTV”), brings this action against Defendants, Rose Hui, a/k/a Rose M. Hui, Dennis Yi Hui, and Haiwen, Inc, d/b/a Hui’s Chinese, a/k/a Hui’s Cantonese and American Restaurant, a/k/a Hui’s Restaraunt (collectively “the defendants”) for illegally receiving and displaying DIRECTV’s satellite programming on April 22, 2014. (See Compl., Docket #1). This matter comes before the Count on DIRCTV’s unopposed motion to dismiss the defendants’ counterclaim (Docket #10), which the Court will grant for lack of opposition, and DIRECTV’s motion for summary judgment, filed on September 30, 2015. (Docket #19). The motion for summary judgment is now fully briefed and ready for disposition. As discussed in detail below, the Court finds that material issues of fact preclude summary judgment and, thus, DIRECTV’s motion for summary judgment will be denied.
1.1. Defendants’ Failure to Follow Civil Local Rule 56 (b)(2)(B)
Before turning to the factual background of this case, the Court must first discuss the defendants’ failure to comply with Civil Local Rule 56 (b)(2)(B). In opposing summary judgement, the defendants failed to respond to each of the numbered facts in DIRECTV’s statement of proposed material facts (Docket #23), and further failed to provide any references to affidavits, declarations, parts of the record, or other supporting materials relied upon to support their own proposed findings of fact (Docket #30). As a result of the defendants’ failure to comply with the local rules, the Court has discretion to deem admitted each of DIRECTV’s submitted facts. See Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“[D]istrict court judges are entitled to insist on strict summary judgment filings.”)
The Court, however, declines to exercise this discretion because the defendants’ brief in opposition to the motion for summary judgment clearly identifies material facts that remain in dispute. Additionally, as discussed more fully below, the defendants’ argument largely rests on factual disputes that can be observed in DIRECTV’s own submitted video evidence. As such, the Court views the facts in the light most favorable to the defendants as the non-moving party, as it must, and draws all reasonable inferences in their favor. See Tebbens v. Mushol, 692 F.3d 807, 815 (7th Cir. 2012).
1.2 Factual Background
DIRECTV is the United States’ leading direct broadcast satellite service. (PPFF ¶ 38). DIRECTV offers its television programming to residential and business customers on a subscription and pay-per-view basis only. (PPFF ¶ 39). In order to receive and view DIRECTV satellite programming, each customer is required to obtain DIRECTV satellite hardware (including a small satellite dish and DIRECTV integrated receiver/decoder with DIRECTV access card) and is required to establish an account with DIRECTV. (PPFF ¶ 40). DIRECTV’s residential and commercial subscribers use the same satellite receiving equipment to receive DIRECTV programming signals. (PPFF ¶ 42).
Rose Hui and Dennis Hui operate Hui’s Chinese, a restaurant in Wauwatosa, Wisconsin. (Defs’ Opp. at 1). Haiwen, Inc., is a corporation that has ownership of the restaurant, and Rose Hui is the registered agent for Haiwen, Inc. (PPFF ¶ 2). During the relevant time period, Rose and Dennis Hui were principals of Haiwen, Inc. (PPFF ¶¶ 10, 11). Currently, Rose Hui and Dennis Hui are the only employees of the restaurant, (Defs’ Opp. at 1), however, as of April 22, 2014, the restaurant employed one other individual, Yan Hong Ruan. (PPFF ¶ 33).
On May 15, 2007, Rose Hui activated a residential account, number 038584454 with DIRECTV with an address located at 12500 Laurel Ln., Elm Grove, WI 53122. (PPFF ¶ 24). The account allowed for several televisions to be used. (DPPF ¶ 1). Near the end of 2012, the defendants moved one of those televisions to Hui’s Restaurant so that Rose Hui could watch Chinese programing while at work. (DPPF ¶ 2). The defendants maintain that the television was located in the restaurant for Rose Hui’s personal viewing only. (DPPF ¶ 3).
On April 22, 2014, a DIRECTV auditor, Mark Butler, arrived at Hui’s restaurant at approximately 8:56 p.m. (Docket #20-1 at 2-3). During this visit, the auditor took pictures and a video of his visit. (Docket #20-1 at 4.). While in the restaurant, the investigator observed “DIRECTV programming, a DIRECTV remote control and a DIRECTV receiver, ” and “the DIRECTV blue information banner and the DIRECTV Receiver ID number 249784 on one television.” (PPFF ¶¶ 36, 37). On this date, it is undisputed that there was no DIRECTV commercial account for Hui’s Chinese Restaurant. (PPFF ¶ 44).
Count I of the Complaint alleges that the defendants violated certain provisions of the Communications Act of 1934, 47 U.S.C. § 605 (“§ 605"). Count II alleges that the defendants violated Title 18 U.S.C. § 2511, and Count III alleges a state law claim for civil conversion. DIRECTV moved for summary judgment on Count I only.
2. LEGAL STANDARD
“The court shall 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.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over ...