Opinion
10 Civ. 3753 (KBF)
07-10-2012
PREMIUM SPORTS INC., Plaintiff, v. MATTHEW CONNELL, et al., Defendants.
MEMORANDUM & ORDER
:
On May 3, 2010, plaintiff Premium Sport, Inc. sued defendants Matthew Connell, Patrick J. Reilly, Eugene Rooney, and Old Castle Corp. d/b/a Old Castle Restaurant and Pub for violating 47 U.S.C. § 605(a), a portion of the Federal Communications Act ("FCA") that prohibits unauthorized publication or use of communications. (See Compl. (Dkt. No. 1) ¶¶ 17-26.) On June 18, 2010, defendants answered plaintiff's complaint and asserted counterclaims for breach of contract. (See Answer & Countercl. (Dkt. No. 7) ¶¶ 32-47.) After discovery was closed, on March 18, 2011, the parties cross-moved for summary judgment on plaintiff's claim. Both motions were fully briefed as of May 6, 2011. On February 9, 2012, this case was reassigned to this Court.
Defendant Old Castle Corp. has asserted two breach of contract counterclaims against plaintiff (see Answer & Counterclaims (Dkt. No. 7) at ¶¶ 32-47), neither of which were addressed or resolved by the Order. --------
On March 1, 2012, this Court issued a Memorandum & Order granting defendants' motion for summary judgment on plaintiff's claims and thus, denying plaintiff's motion for summary judgment (the "Opinion"), 2012 WL 691891 (S.D.N.Y. Mar. 1, 2012). The Court reached that decision on the grounds that § 605(a) of the FCA did not reach the conduct of which plaintiff complained. Id. at *2. Plaintiff now seeks reconsideration of the Opinion pursuant to Local Rule 6.3 and Rule 59(e) of the Federal Rules of Civil Procedure.
For the reasons set forth below, plaintiff's motion is DENIED.
DISCUSSION
I. Standard of Review
The standard for granting reconsideration is strict. Generally, motions for reconsideration are not granted "unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Rule 6.3, Local Civil Rules, S.D.N.Y. "Controlling authority means decisions of the Second Circuit Court of Appeals or the U.S. Supreme Court." Ivan Visin Shipping, Ltd. v. Onego Shipping & Chartering B.V., 543 F. Supp. 2d 338, 339 (S.D.N.Y. 2007) (citation omitted). The Court should not revisit a prior order unless there is "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quotation marks omitted).
A motion for reconsideration should not be used as a vehicle simply to voice disagreement with the Court's decision, see R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp. 2d 506, 512-13 (S.D.N.Y. 2009), nor does it present "an occasion for repeating old arguments previously rejected []or an opportunity for making new arguments that could have previously been made." Associated Press v. U.S. Dep't of Defense, 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005) (citations omitted). Therefore, a motion for reconsideration should be denied if the moving party "merely offers substantially the same arguments he offered on the original motion." U.S. v. Kerik, 615 F. Supp. 2d 256, n. 27 (S.D.N.Y. 2009) (internal quotation marks omitted). At bottom, the decision to grant or deny the motion for reconsideration is within "the sound discretion of the district court." Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (citation omitted).
II. Analysis
In the Opinion, the Court found that because section 605(a) requires an "'interception' of a signal or transmission," and because plaintiff did not assert a claim against Michael Caulfield--i.e., the receiver of the broadcast at issue who then transmitted it to defendants--no "interception" was made giving rise to a claim under § 605(a). 2012 WL 691891, at * 2-3. Nowhere in the Opinion did the Court state that it was basing its finding upon any specific prong or sentence of § 605(a); rather, its finding was based upon caselaw demonstrating that a claim under § 605(a) required an "interception."
Plaintiff seeks reconsideration of the Opinion on the basis that (a) the Court overlooked the third prong of § 605(a) in deciding summary judgment in defendants' favor (including caselaw regarding liability under that prong); and (b) the Court relied upon caselaw regarding "interception" that is "overly broad". (See Mem. in Support of Pl.'s Mot. to Vacate Decision and For Reargument ("Pl. Mem.") (Dkt. No. 67) at 2, 4.) Neither of those arguments provides grounds for reconsideration of the Opinion.
As an initial matter, plaintiff concedes that the arguments raised on this motion were previously before the Court on the summary judgment motion. (See Pl. Mem. at 4 ("The decision by this Court overlooked that Plaintiff moved for summary judgment based on the third sentence of 47 U.S.C. § 605 . . .").) Indeed, the summary judgment papers from both parties indicate that the question of whether the third prong requires an interception was sufficiently briefed in the summary judgment papers. (See, e.g., Defs.' Mem. of Law in Supp. of Mot. for Summ. J. (Dkt. No. 43) at 17 (arguing that "[a]pplication of the third sentence of § 605(a) to the facts of this case demonstrates that there has been no violation."); Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. for Summ. J. (Dkt. No. 53) at 7 (responding that "[d]efendants argument that 47 U.S.C. § 605 doesn't [sic] apply because there was no 'interception' is also flawed because sentence three of § 605(a) doesn't [sic] even require an interception, just that '[n]o person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication for his own benefit.'" (citation omitted)).) In other words, plaintiff's motion for reconsideration merely attempts to "relitigate issues already decided by the Court," which is inappropriate on a motion for reconsideration. See Stemcor UK Ltd. v. Sesa Int'l Ltd., No. 09-1155, 2009 WL 2191245, at *1 (S.D.N.Y. July 20, 2009). On that basis alone the motion should be denied. See Kerik, 615 F. Supp. 2d at n. 27.
In addition, plaintiff's argument that the third prong of section 605(a) is contrary to law from the Second Circuit and this Court that holds otherwise. The Second Circuit has held that "the subsequent act of interception (or assistance in interception) is a violation of the third sentence of § 605(a)." Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir. 1996). Thus, when a plaintiff relied on a similar argument in another FCA case, Chief Judge Preska held that "[t]he third sentence, contrary to the unsupported assertion from J.P.T., Inc. upon which NBA relies, similarly requires an interception and is inapplicable." Nat'l Basketball Ass'n v. Sports Team Analysis & Tracking Sys., Inc., 939 F. Supp. 1071, 1114 (S.D.N.Y. 1996) (citation omitted)(emphasis added), rev'd in part on other grounds sub nom. Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997); see also Cablevision of S. Conn., Ltd. P'ship v. Smith, 141 F. Supp. 2d 277, 285 (D. Conn. 2001). Plaintiff does not cite caselaw from this Circuit that states otherwise and thus, there are no controlling decisions before this Court that counsel in favor of reconsideration. See Analytical Surveys, Inc. v. Tonga Partners, L.P., No. 06-2692, 2009 WL 1514310, at *3 n.9 (S.D.N.Y. May 29, 2009) ("persuasive but nonbinding authority from other circuits does not constitute a point of law or fact that mandates reconsideration") (citation omitted), aff'd, --- F.3d ---, 2012 WL 1970389 (2d Cir. June 4, 2012).
Finally, plaintiff's argument that this Court's citation to Cablevision of Michigan, Inc. v. Sports Palace, 27 F.3d 566 (6th Cir. 1994), and Smith v. Cincinnati Post & Times Star, 475 F.2d 740, 741 (6th Cir. 1973) (both cited in 2012 WL 691891, at *2-3), mandates reconsideration is not persuasive. Plaintiff seeks reconsideration because Cablevision is "unpublished" and not binding, and because Smith's limitation on the scope of section 605 was later found to be "'overly broad, taken out of context, and not definitive in determining the applicability of § 605.'" (Pl. Mem. at 8 (citing Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 914 (6th Cir. 2001).) Smith was cited once in the Opinion as additional support for a certain proposition. See 2012 WL 691891, at *3. As for Cablevision, in the absence of "overlooked" Second Circuit precedent, the fact that it is unpublished and not binding on this Court falls short of meeting the standard for reconsideration. See Shrader, 70 F.3d at 257. In other words, plaintiff's "caselaw" argument does not provide grounds for reconsideration here, either.
Accordingly, plaintiff's motion for reconsideration is DENIED.
The parties should not take the Opinion--or the denial of reconsideration of that Opinion--as authorization to engage in the type of conduct in which defendants engaged here. Indeed, the Court in no way condones the conduct that is at the heart of this action. As the Court stated in the Opinion, "It is possible that there would have been other potential routes to have address an allegedly unauthorized use of an exclusively licensed game." 2012 WL 691891, at *3. Indeed, the Court provided examples of types of claims that may have been meritorious, including under the Copyright Act. Id. However, as stated in the Opinion and reiterated here, section 605(a) does not provide a vehicle for redress of the conduct complained of in this action.
CONCLUSION
For the aforementioned reasons, plaintiff's motion for reconsideration is DENIED.
The parties shall provide a joint letter to the Court no later than July 16, 2012, regarding (i) what is outstanding as to defendants' counterclaims, including any discovery, (ii) any outstanding deadlines, and (iii) the status of any settlement discussions.
The Clerk of the Court is directed to terminate the motion at Docket No. 66.
SO ORDERED: Dated: New York, New York
July 10, 2012
/s/_________
Katherine B. Forrest
UNITED STATES DISTRICT JUDGE