Star Cable NA, INC. v. Total Cable USA LLC.

• Court: District Court, E.D. New York
• Decided: February 12, 2020
• Docket: 1:16-cv-04067
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK woe anne nnnnn □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ STAR CABLE NA, INC., Plaintiff, 16 CV/4067 (SJ) v. MEMORANDUM AND ORDER TOTAL CABLE USA LLC, et al., Defendants. eeennnenenren anew □□□□□□□□□□□□□□□□□□□□□□□□□□□ XK APPEARANCES DANIEL JOHN LEFKOWITZ 320 New York Avenue ! Huntington, NY 11743 (631) 692-4700 Attorney for Plaintiff HOGAN & CASSELL 500 North Broadway, Suite 153 Jericho, NY 11753 (516) 942-4700 By: Michael D. Cassell Shaun K. Hogan Attorneys for Plaintiff SATISH K. BHATIA 38 West 32nd Street, Suite 1511 New York, NY 10001 (212) 239-6898 Attorney for Defendants

JOHNSON, Senior District Judge: This is an unauthorized publication or use of commu ications action brought pursuant to 47 U.S.C. § 605. Plaintiff's Second Ame sed Complaint (“SAC”) alleges that Total Cable USA LLC (“Tot al Cable USA”) and 1StopMedia and Entertainment, Inc. d/b/a Radiant I (“1Stop”) (collectively “Defendants”) distributed programming servic ps in contravention of Plaintiff's exclusive rights to air those pro amming services in the United States via Internet Protocol Televisio ("IPTV") The services in question are Bangladeshi TV channels, specifical 1) Independent TV, 2) Jamuna TV, 3) Channel 16, 4) My TV, 5) Asian TV, 6) Bangla Vision, 7) Ekushey TV, and 8) Somoy TV (collectivel the “Exclusive Services”). Plaintiff seeks enjoinment of the Defendants from utilizing the Exclusive Services and monetary damages. Before this Cou bre motions for summary judgment by the Defendants. Based on the submissions of the parties and for the reasons stated below, both motions for summary judgment are DENIED.

I. Background Facts! Star Cable provides subscription video services to its clients through the internet via IPTV. Its services include hundreds of chant als including the Exclusive Services listed above. Star Cable claims to have contracted with each of the Exclusive Services providers individually f Dt the exclusive rights to distribute these channels in the United States and ¢ anada. In exchange for the distribution rights, Star Cable has paid and satin to

pay license fees to the content owners. Star Cable alleges tha Defendants Total Cable USA and 1Stop each actively advertise and redi stribute the Exclusive Services to their customers without authorization (Dit. No. 38 at P22.) Defendant Total Cable USA was incorporated on Octpper 20, 2013 and dissolved in May 2016. However, Star Cable brings the nstant action

on the premise that Total Cable USA continues to operate a distribute the Exclusive Services under the name “Total Cable BD.” Historical website data shows that a company holding itself out as “Total Cable” operated a website at the URL “totalcableusa.4 om,” that sold subscription internet television packages similar to the mod 1 described 1 Unless otherwise stated, all facts are taken from the complaint, the part lL submissions, and representations before this Court. 3

above as late as May 7, 2016. However, by at least August 17, 2016—shortly after Total Cable USA had dissolved —the same website had pnangee the logo on its homepage to instead read “Total Cable BD” and hanged its contact email address to “info@totalcablebd.com.” All other|information on the website remained virtually identical, including the “Ab a Us” description which begins: “Total Cable USA is leading IPTV providers to the Bangladeshi community in the USA and Canada.” An August 17, 2016 search revealed that the URL “totalcableusa.com” was registered to a man named Habib ahman, at the phone number (646) 474-0418, and address 15 Westmoylan Lae Coram, NY 1127. That URL is no longer operational, however, the RL “totalcablebd.com” was created in 2015 and registered to th exact same

person, phone number, and address. Rahman was also found in a Southern District of New York lawsuit to be “a representative of Tota Cable [USA] LLC.” Asia TV USA, Ltd. V. Total Cable USA LLC, 2018 WL 1 26165 (S.D.N.Y Mar. 29, 2018). Total Cable USA denies ownership of the we bite and claims that they never operated any website. (Bhatia Aff. at 11.)

Additionally, the physical address that both websites|were registered to is the same address of process registered with e New York

Department of State for Total Cable USA. (Opp. to Total Cable at Ex. N.) 4

Total Cable USA’s Department of State registration also list Ine company’s CEO, Ahmodul Barobhuiya, as the appropriate person for service. (Id.) II. Legal Standard A party moving for summary judgment has the burden of establishing that there exists no genuine issue of material fact and that tl . moving party is entitled to judgment as a matter of law. See Fed. R. Civ. FP. 56(0); Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). Material facts are those that may affect the utcome of the

case. See Anderson, 477 U.S. at 248. An issue of fact is considered “genuine” when a reasonable finder of fact could render a verdict in f oe of the non- moving party. (Id.) In considering a summary judgment motion, “the court's responsibility is not to resolve disputed issues of fact but td assess whether there are any factual issues to be tried, while resolving ¢ mbiguities and drawing reasonable inferences against the moving party.” Kj ight v. ULS. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Anderson, 477 ub at 248). If the Court recognizes any material issues of fact, summary judg ent is improper, and the motion must be denied. See Eastway Constr. Corp. v. 4 ty of New York, 762 F.2d 243, 249 (2d Cir. 1985). If the moving party discharges its burden of proof u fler Rule 56(c),

the non-moving party must then “set forth specific facts shawing that there

oe 5 yi

is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The nan-moving party opposing a properly supported motion for summary judgment “may not rest

upon mere allegations or denials of his pleading.” Anderson, US. at 256. Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported moti hs for summary judgment. (Id. at 247-48.) Rather, enough evidence mus favor the non- moving party’s case such that a jury could return a verdict in 'its favor. Id. at 248; see also Gallo v. Prudential Residential Servs., Lid., 22 F.3¢ 11219, 1224 (2d Cir. 1999) (“When no rational jury could find in favor of the npnmoving party because the evidence to support its case is so slight, there is ° genuine issue of material fact and a grant of summary judgment is proper, ?. III, Discussion As an initial matter, defendants’ motions for summary judgment do not include a legal memorandum as required by Local Rule or arule 56.1 statement. Both of these failures by counsel, in and of t einselves, are

proper grounds to deny the motions. See Local Rule 56.1 (“ dailure to submit such a statement may constitute grounds for denial afithe motion.”); Cea v. Access 23 TV, 2015 WL 5474070 (S.D.N.Y. Sep. 15, 2015) (The failure to submit a memorandum of law, standing alone, is sufficie t cause for

granting or denying a motion. It is not necessary to reach the merits.”)

(citations and quotations omitted); Corbley v. County of 45 F. Supp. 3d 276 (E.D.N.Y. 2014) (“The Court finds that Plaintiff's fail to provide a statement of undisputed facts is fatal to its motion for su L judgment, and therefore the motion is denied on this basis.); United Sta l. v. Katz, 2011 WL 2175787 (S.D.N.Y 2011) (denying motion for summary j 1dgment because party submitted affidavits rather than a rule 56.1 sté tement) ; Wenzhou v. Wanli Food Co. v. Hop Chong Trading Co., 2000 WIL 964944 (S.D.N.Y. July 11, 2000) (denying motion for summary judg pat for failure accompanying legal memorandum). But even putting aside hese glaring procedural defects, the motions still fail. A. Total Cable Total Cable USA's motion for summary judgment is based entirely on its claim that it dissolved in May 2016, declared bankruptcy, Ind never distributed any of the Exclusive Services. (Satish Bhatia Affi ation in Support of Total Cable USA’s Motion to Dismiss (“Bhatia Af I. at P 2.) Total Cable USA claims that “Plaintiff is confused with the ords ‘Total Cable’” as “there are many corporations that start with the rords “Total Cable.” (Bhatia Aff. P 9.) Defendant goes so far as to say that Total Cable USA and Total Cable BD have “no[] relation whatsoever” (Id. et P10) and

that defendants are “not familiar with Total Cable Bd [sic].” ld. at P11)

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Accordingly, Defendant argues, there is no genuine dispute 4 material fact because Plaintiff's claims pertain only to Total Cable BD, anjentirely distinct entity. Unsurprisingly, Star Cable’s position is that Total Cable SA and Total Cable BD are effectively the same company. In response to t P instant motion, Star Cable argues that “there is a clear issue of fact 4s to whether Total Cable is still operating, albeit now under the name To L Cable BD.” (Star Cable’s Opposition to Total Cable’s Motion to Dismiss Opp. to Total Cable”) at 1.) This Court agrees. While the degree to which Total Cable USA and Total able BD are in fact connected is unclear, the record is rife with reasons to d bt Total Cable USA’s claim that there is “no relation whatsoever” bet een the two businesses. (Bhatia Aff. 10.) Plaintiffs have demonstrated a strong link between the o berators of “totalcableusa.com” and the entity Total Cable BD. While rd Cable USA denies creating this website or any other (Bhatia Aff. at P 11)) it would be reasonable to disbelieve this claim. The domain “totalcableu bacom,” which later became the website for Total Cable BD, was registered Qa Habib Rahman known representative of Total Cable USA. See Abia TV USA,

2018 WL 1626165 at *3. Additionally, the website was registered toa

physical address associated with Total Cable USA, as proven by the company’s registration with the New York Department of S ite (Opp. to Total Cable at Ex. N.) The same is true for the domain “total elebel com” which was created later in time. (Opp. to Total Cable at Ex. } 1) Additional facts outline, supra, lend support to the theor bt the “totalcableusa.com” domain belonged to Total Cable USA, i cluding content on the site relating to Total Cable, Total Cable USA, □ nd Total Cable BD. There also appears to be overlap among key executives Jetooth companies. Defendant Total Cable USA argues in its Reply that both web domains actually belong to yet another company called Lalon TV Inc. (“Lalon TV”), and thereby cannot belong to Total Cable USA (Total Cable’s Reply in Opposition to Plaintiff's Response (“Total Cable Re at P13.) If this is in fact true, this Court is troubled by Barobhuiya’s deposition testimony in which he claimed he was “not familiar with To a Cable Bd [sic].” (Bhatia Aff. At P 11.) Barobhuiya was found to be the CEO of both Total Cable USA LLC and Lalon TV in Asia TV USA, Ltd. v. iat Cable USA LLC. 2018 WL 1626165 *3 (“Barobhuiya is the CEO of both otal Cable [USA] LLC and Lalon TV, and the address for service of pro éss is the same

for both companies.”)

Plaintiffs allege that “defendants seem to be engaged in 4 scheme to evade detection of their proper name and ownership.” (SA at P 6.) While the full merits of this argument are not clear at this stage, th re certainly remains a genuine dispute of material fact as to who is operating Total Cable BD. Defendant Total Cable USA and its executives ha far from exonerated themselves from that charge and for that reason, their motion for summary judgment is dismissed. B. 1Stop With the exception of Somoy TV, 1Stop does not deny di tributing the Exclusive Services. (Bhatia Affirmation in Support of 1Stop’ Motion for Summary Judgment (“Bhatia 1Stop Aff.”) at 4.) Rather, 1Stop’s motion for

summary judgment is based on its position that Star Cable oes not retain exclusive rights to distribute the Exclusive Services and wm has sold

access to the channels in accordance with its own written a |ments with the content owners. (Id. at 2.) 1Stop’s motion falls far i its position as a matter of law. The Court shall address each ch | el in turn: 1. Independent TV 1Stop alleges that Star Cable’s exclusive contract with lndependent TV was for three years and expired in 2017. (Bhatia 1Stop Af at P 6.) It

argues that Plaintiff “has not provided any other agreement | owing that 1 □

the [contract] was ever renewed.” (Id.) However, 1Stop’s position is belied by the fact that Paragraph 2 of the relevant contract clearly | hee that the “[a]greement automatically shall renew for additional three year Terms, unless either party provides at least 90 days written notice to lhe other party...” (Plaintiff's Opposition to 1Stop’s Motion for Sumnjary Judgment (“Opp. to 1Stop”) at Ex. A, P 2.) 1Stop offers no evidence wha soever to

demonstrate that the agreement has ended in a manner congistent with the contract. 1Stop also points to a contract it allegedly entered into with Independent TV in 2013 for a three-year period, with a 1-year automatic renewal provision. (Bhatia 1Stop Aff. at Ex. Q.) Star Cable challenges the authenticity of this contract based on its own agreement wit [Independent TV, demonstrating an additional clear dispute of material fa | (Plaintiff's Rule 56.1 Statement as to 1Stop’s Motion for Summary Judgt lent (“Plaintiff's 1Stop Rule 56 Statement”) at P 18.)

2. Jamuna TV ! 1Stop similarly asserts that Star Cable’s contract with Jamuna TV ended in 2017. (Bhatia 1Stop Aff. at P 7.) Again, this position is contradicted by the express terms of Star Cable’s contract with Jamuna TV which state

that the agreement automatically renews at the end of the t ee-year period unless properly terminated by one of the parties. (Opp. to 1$ bo at Ex. B.) 1Stop also attaches a letter supposedly from a Jamung TV executive affirming that 1Stop is their client and that “[n]o other orga | etion has any valid exclusive rights with Jamuna...” (Bhatia 1Stop Aff. at x. G.) This letter, addressed “TO WHOM IT MAY CONCERN,” is not a enentiated, notarized, or certified in anyway. As such, it is inadmissible evidence and will not be considered for purposes of this motion for su | y judgment. See F.R.C.P. 56(c)(4) (“affidavit or declaration used to suppo t or oppose a motion must be made on personal knowledge, set out facts | t would be admissible in evidence, and show that the affiant or declara tis competent to testify on the matters stated.”); Raskin v. Wyatt Co., 125 F. 55, 66 (2d Cir. 1997) (“only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment”). 3. Channel 16 1Stop asserts, based on the deposition of Saiful Siddi ue, that Channel 16 is “no longer in circulation and it is not broadcasting.” (Bhatia 1Stop Aff. at P 7.) It also provides a copy of a contract betwe " 1Stop and Lalon TV for a period of ten years which predates Star Cable s contract with

Channel 16. (Id.) Star Cable challenges Siddique’s “unsupported claim” that 12

: Channel 16 is no longer in business, creating yet another fac | al dispute. (Plaintiff's 1Stop Rule 56 Statement at 7.) As 1Stop has not ere any evidence outside a conclusory statement that Channel 16 is 1 longer operating, this issue of fact is still clearly in dispute. Further} even if Channel 16 was no longer in business, 1Stop does not state when it stopped operating or if its closure predated the relevant date range o} this lawsuit. 4. mytv 1Stop also provided a letter addressed “To Whom It ay Concern,” from a mytv executive stating that Star Cable “has no valid legal agreement with [mytv],” and “has absolutely no rights to broadcast or Ldoresent mytv channel anywhere in the world.” (Bhatia 1Stop Aff. at ex. I.) | me the proffered Jamuna letter, this letter is not authenticated, nota ized, or certified in anyway. As such, it is inadmissible evidence and will not be considered for purposes of this motion for summary judgme t F.R.C.P. 56(c)(4); Raskin, 125 F.3d at 66. 5. Asian TV 1Stop submitted two contracts in its motion that it sup posedly entered into with Asian TV for rights to distribute in North America. One contract, dated November 20, 2014, is for the exclusive right 0 distribute

for three years. (Bhatia 1Stop Aff. at Ex. K.) The other is dated June 6, 2016 i

and is for the non-exclusive right to distribute for three years, (Bhatia 1Stop Aff. at Ex. L.) Star Cable disputes the authenticity of both thse documents for two reasons. (Plaintiff's 1Stop Rule 56 Statement at [P 13.) Fist Star Cable claims that it entered into an agreement for the exclusive rights to distribute Asian TV’s content for an eight-year period begi ing November 25, 2014. (Id.) Second, Star Cable points out that 1Stop offers|no explanation as to why it had negotiated for exclusive distribution rights bs three years only to renegotiate, not even two years later, for non-exclusi : distribution rights. (Id.) There may be a legitimate reason for this, howev t, there clearly remains a dispute as to the authenticity of the offered contra ts. 6. Bangla Vision With regards to Bangla Vision, 1Stop offered yet ano br letter addressed, “To Whom It May Concern,” this time from a Ba gla Vision executive. (Bhatia 1Stop Aff. at Ex. H.) The letter states that ta Cable has “no valid agreement or the rights to broadcast/represent BANGLAVISION.” (Id.) Once again, the letter is not authenticated, notarized, or certified in anyway. As such, it is inadmissible idence and will not be considered for purposes of this motion for samme judgment. F.R.C.P. 56(c)(4); Raskin, 125 F.3d at 66.

1Stop also submits a contract it supposedly entered into with Bangla Vision for distribution rights for a three-year period beginning September 23, 2014. (Bhatia 1Stop Aff. at Ex. M.) Star Cable points out, and it is clearly stated in the title, that this contract is only applicable to “mo ile apps” and thereby irrelevant to Star Cable’s IPTV claim. (Opp. to 1Stop at 10-11.) Accordingly, the documents submitted by 1Stop fall far sho tof demonstrating it should be granted summary judgment wit vegard to Bangla Vision. 7. Ekushey TV 1Stop argues that Star Cable has no valid distributio agreement with Ekushey TV. In support of this position, 1Stop submitt da one- sentence letter from an Ekushey executive to Star Cable, dat i August 23, 2016. (Bhatia 1Stop Aff. at Ex. J.) The letter supposedly termi tes the distribution agreement between Star Cable and Ekushey. St ‘Cable challenges the authenticity of this letter based on its utter fai re to comply with the procedures outlined in the contract for terminating the agreement. 15

(Plaintiff's 1Stop Rule 56 Statement at 11.) Again, 1Stop’s | submission clearly fails to sustain its burden of proof for suy ary judgment.? 8. Somoy TV 1Stop claims that it is not involved in the sale or distr bution of Somoy TV. (Bhatia 1Stop Aff. at P 4.) In support of this posi on, 1Stop offers no evidence other than a blanket denial. (Id.) Unsurpr singly, Star Cable disputes the claim, highlighting yet another dispute a to a material fact in this case. (Plaintiff’s 1Stop Rule 56 Statement at P 4.) | IV. Conclusion For the foregoing reasons, Defendants have failed to dmonstrate that summary judgment is warranted and both motions for | ary judgment are DENIED. The parties shall file a joint pretrial jae within 14 days of this order. SO ORDERED. Dated: February 12 , 2020 s/ Sterling Johnson, Jr. Brooklyn, NY __ 2 Sterling J&RAson, Jr., kS.D □□

2 Star Cable refers to this channel as “Ekhusey” while Defendants refer to it as “Ekushey.” The parties shall clarify the proper spelling of this company to the Court hd confirm the correct company is in dispute in their joint pre-trial order. 16