COMCAST OF ILLINOIS X, LLCv.TKA ELECTRONICS, INC.

United States District Court, D. NebraskaMar 30, 2004
8:02CV429 (D. Neb. Mar. 30, 2004)

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8:02CV429

March 30, 2004


MEMORANDUM AND ORDER


Before me are the motions, Filing Nos. 72, 80, and 108, for summary judgment filed by defendants Cathy Vigneri and Thomas Abboud. Both defendants appear prose, and have included briefs within their motions. The plaintiff filed opposing briefs, Filing Nos. 81, 83, and 109, which are supported by an index of evidence, 82. The defendants filed reply briefs, Filing No. 85 and 110; defendant Vigneri's reply brief is supported by an index of evidence, Filing No. 86.

Thomas Abboud's motions, Filing Nos. 80 and 108, are nearly identical. The court notes that neither filing is actually a motion for summary judgment, although the court has construed them as such. Both documents are entitled "Memorandum of Points and Authorities in Support of Defendants Motion Summary Judgement" [sic].

Vigneri's motion for summary judgment, Filing No. 72, also asks the court to dissolve the asset freeze against her. The court has already addressed that portion of the defendant's motion. See Filing No. 78.

Since these motions were filed, the plaintiff has filed an amended complaint, Filing No. 113, which adds defendants but does not significantly change the substance of the allegations found in the original complaint. The court will therefore rule on Vigneri and Thomas Abboud's motions, but this ruling will not preclude the newly added defendants from moving for summary judgment on the amended complaint.

LEGAL STANDARD

In deciding a motion for summary judgment, the court determines whether the record, when viewed in the light most favorable to the nonmoving party, shows any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.

The moving party has the burden of establishing the nonexistence of any genuine issue of material fact. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Therefore, if the moving party does not meet the initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Rec. Inc., 825 F.2d 167, 173 (8th Cir. 1987).

Once the moving party meets the initial burden of showing there is no genuine issue of material fact, the nonmoving party may not rest upon the allegations in the pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). The nonmoving party may not merely show that there is some metaphysical doubt as to the material facts, but must show "there is sufficient evidence to support a jury verdict" in the nonmoving party's favor. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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). In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations. Kenney v. Swift Transp. Co., 347 F.3d 1041, 1044 (8th Cir. 2003).

Here, the court has carefully reviewed the record, the parties' briefs and evidence, and the applicable law, and concludes that the defendants' motions must be denied.

BACKGROUND

The plaintiff seeks declaratory and injunctive relief and monetary damages for the defendants' alleged piracy of the plaintiffs cable television programming services. The individual defendants are/were officers of defendant TKA Electronics, Inc. The plaintiff alleges that from the early 1990s until September 2002, TKA manufactured, sold, and distributed cable television descrambling equipment that others used to intercept the plaintiff's scrambled programming services, in violation of federal and state law. See The Cable Communications Act, 47 U.S.C. § 553, and Neb. Rev. Stat. § 28-515.

On September 17, 2002, this court entered a temporary restraining order which permitted expedited discovery, an asset freeze of the defendants' personal and business accounts, an accounting, and seizure of the defendants' business inventory and records. Filing No. 10. The court granted a preliminary injunction on October 15, 2002. Filing Nos. 21, 23. Settlement attempts have been only partially successful.

The Cable Communications Act, in part, prohibits a "person" from "intercept[ing] or receiv[ing] or assist[ing] 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." 47 U.S.C. § 553(a)(1). The Act also prohibits any "person" who is not authorized by the sender from "intercept[ing] any radio communication [or] divulg[ing] or publish[ing] the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." 47 U.S.C. § 605. The term "person" as used in the Act means "an individual, partnership, association, joint stock company, trust, corporation, or governmental entity." 47 U.S.C. § 522(15).

DISCUSSION Defendant Vigneri's Motion

Vigneri contends that she is entitled to summary judgment on numerous grounds, many of them factual. First, Vigneri contends that none of the evidence used to support the TRO or the preliminary injunction pertain to her. Specifically, she argues that even when she was an employee and officer of TKA, she had no control over the corporation, its operations, or the other defendants because she was only the bookkeeper. She also states that after March 31, 2002, she was no longer either an employee or an officer of TKA. She also attacks the factual bases of specific exhibits which the plaintiff presented in support of the TRO, the preliminary injunction, and a show cause motion, Filing No. 29. For example, Vigneri argues that she had nothing to do with TKA advertising, screen prints, money orders, e-mails, labels, invoices, or user manuals. She also argues that the bank records presented to the court do not in any way pertain to her. See Filing No. 72, Vigneri Motion/Brief, at 3-5.

The plaintiff has presented evidence, however, that creates significant factual questions about Vigneri's claimed noninvolvement in TKA, its operations, or its finances. Vigneri herself does not dispute that she was an employee and officer of TKA through most of the 1990s and until March 2002, the time period at issue in this suit. See Filing No. 82, PI. Evid. Index, Ex. C, W-2s from 1997-2000 for "Cathy A. Vigneri." Records of the Nebraska Secretary of State show that even as of July 2, 2003, Vigneri was listed as TKA's secretary. Id., Exs. A and C. There is also evidence that Vigneri was a TKA shareholder, as shown by the 1996 and 1997 Schedule K-1 from TKA to "CathyAbboud Vigneri." Id., Ex. E. In addition, the evidence shows that in December 2000, TKA made a loan to "Cathy for $68,797.20. Id., Ex. D. While this evidence alone may not be facially sufficient to render Vigneri individually liable, it nevertheless creates genuine issues of material fact about her association with TKA that require the court to deny Vigneri's motion for summary judgment.

Vigneri also raises several legal issues. First, she claims that the plaintiff failed to provide her with service of the complaint pursuant to Rule 4. In cases with multiple defendants, a summons or a copy of the summons should be issued for each defendant to be served. Fed.R.Civ.P. 4(b). Vigneri argues that she was never served with a summons and complaint, even though defendant Thomas Abboud told the plaintiff when the summons and TRO were served on TKA that Vigneri was no longer a TKA employee. The docket sheet in this case reveals that while summonses were issued for Vigneri, Abboud, and TKA, the only summons returned executed was as to TKA. See Filing Nos. 13, 14.

Vigneri is correct that a failure to serve a defendant is fatal to a plaintiff's claim. "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." OmniCapital Int'l, Ltd. v. Rudolf Wolff Co., 484 U.S. 97, 104 (1987). The defense of lack of personal jurisdiction can be waived, however, in one of two ways.

Under Federal Rule of Civil Procedure 12, the defense may be waived if it is neither raised by motion before the answer or asserted in a responsive pleading. Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990); Alger v. Hayes, 452 F.2d 841, 844 (8th Cir. 1972). Rule 12, however, `sets only the outer limits of waiver; it does not preclude waiver by implication.' Yeldell, 913 F.2d at 539 (quoting Marquest Medical Products v. EMDE Corp., 496 F. Supp. 1242, 1245 n. 1 (D. Col. 1980)). Thus, the personal jurisdiction defense may also be `lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.' Id. (quoting Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167 (1939)).
Network Professionals, Inc. v. Network Int'l, Ltd., 146 F.R.D. 179, 181-82 (D. Minn. 1993). Here, rather than raising the insufficiency of service or the lack of personal jurisdiction at the outset of the case, the parties have appeared both by counsel and pro se and have vigorously represented themselves on a number of matters. Under these circumstances, Vigneri clearly has waived the defense of lack of personal jurisdiction.

The court notes that no summonses were issued for either Vigneri or Thomas Abboud in connection with the amended complaint. See Filing Nos. 114-117. Vigneri, however, has already answered the amended complaint, thereby waiving an defense based on lack of personal jurisdiction. Filing No. 119.

Vigneri's second legal argument concerns the statute of limitations for an action brought under the Cable Communications Act. She states that the statute of limitations accrues when "`one has knowledge of a violation or is chargeable with such knowledge.'" Here, Vigneri alleges, that occurred when the plaintiff "through its affiliated companies, including but not limited to its telephone division, solicited, accepted, and profited from providing services to TKA Electronics." Filing No. 85, Reply Brief at 3. Vigneri then supplies several cases from jurisdictions outside the Eighth Circuit that allegedly support her argument.

Vignieri does not indicate the source of this quote.

Even assuming Vigneri is correct in her further assertion that a three-year statute of limitations applies here, Vigneri's argument fails for the larger reason that she has not offered evidence to establish when the plaintiff learned of TKA's piracy. Without such evidence, the court has no way of knowing if, when, or how the statute of limitations was triggered. Vigneri's argument must therefore fail.

Accordingly, Vigneri's motion for summary judgment must be denied.

Defendant Thomas Abboud's Motion

Thomas Abboud (Abboud) argues that he is entitled to summary judgment because the plaintiffs decision to sue him "irreparably injure[s] the defendant by destroying its [sic] rights to federal due process, equal protection and property rights; and destroying the credibility and reputation of the Plaintiff without due process of law." Filing Nos. 80 and 108, Mem. of Points and Authorities in Support of Def.'s Mtn. for SJ, at 12. However, Abboud's "Points and Authorities" offer little in the way of authority and much in the way of unsupported rhetoric and conclusions. Abboud is not entitled to summary judgment just because he says he is. He offers no case law or statutory authority to substantiate his argument that TKA's sale of converter boxes, converter descramblers, and converter compatible remote controls was lawful or authorized. Moreover, Abboud offers no evidence or citations to the prior evidentiary record to support the lengthy factual allegations and legal conclusions he recites in his memorandum.

The court assumes that Abboud meant "defendant" rather than "plainitff."

Under these circumstances, the court finds that Abboud has failed to present any basis for the court to grant summary judgment. Accordingly, his motions are denied.

IT IS THEREFORE ORDERED that the motions, Filing Nos. 72, 80, and 108, for summary judgment filed by defendants Cathy Vigneri and Thomas Abboud are denied.