MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
The plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) brings this action under the
The matter is before the court on the defendants’ motion for summary judgment. The defendants move for summary judgment on three grounds, each of which is discussed below.
Standards
Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In considering a motion for summary judgment, the court “must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.” Playboy Enters., Inc. v. Welles,
The Ninth Circuit Court of Appeals has described “the shifting burden of proof governing motions for summary judgment” as follows:
The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,477 U.S. 317 , 323,106 S.Ct. 2548 ,91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case. Id. at 325,106 S.Ct. 2548 . Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324,106 S.Ct. 2548 . This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc.,477 U.S. 242 , 252,106 S.Ct. 2505 ,91 L.Ed.2d 202 (1986). The non-moving party must do more than show there is some “metaphysical doubt” as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574 , 586,106 S.Ct. 1348 ,89 L.Ed.2d 538 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s favor. Anderson,477 U.S. at 252 ,106 S.Ct. 2505 . In determining whether a jury could reasonably render a verdict in the non-moving party’s favor, all justifiable inferences are to be drawn in its favor. Id. at 255,106 S.Ct. 2505 .
In re Oracle Corp. Securities Litigation,
Discussion A. Corporate Veil
The defendants argue Joe Hand has not shown Jacobson had any involvement in the alleged showing of the Program, and in any event, he cannot be held individually liable for Par Ill’s actions solely on the basis that he is president of the corporation. Joe Hand responds that Jacobson is listed on records of the Oregon Secretary of State as the registered agent, president, and secretary of Par III, Inc., with no other individual being listed as an officer or shareholder of the corporation. Joe Hand asserts Jacobson is solely responsible for the day-to-day operations of the corporation (and, therefore, the Restaurant), giving rise to “an inference that the corporation is his alter ego[.]” Dkt. # 26 (Pi’s Memorandum), p. 3 (citing Jacobson’s Declaration, Dkt. #24); see Dkt. #24, Jacobson’s Declaration, ¶ 2 & attachment). Joe Hand claims, therefore, that issues of fact exist regarding Jacobson’s involvement in showing the Program, precluding summary judgment. Id.
The defendants rely on State ex rel. Neidig v. Superior National Insurance Co.,
“We state the exception to the rule as follows: When a plaintiff seeks to collect a corporate debt from a shareholder by virtue of the shareholder’s control over the debtor corporation rather than on some other theory, the plaintiff must allege and prove not only that the debt- or corporation was under the actual control of the shareholder but also that the plaintiffs inability to collect from the corporation resulted from some form of improper conduct on the part of the shareholder. This causation requirement has two implications. The shareholder’s alleged control over the corporation must not be only potential but must actually have been exercised in a manner either causing the plaintiff to enter the transaction with the corporation or causing the corporation’s default on the transaction or a resulting obligation. Likewise, the shareholder’s conduct must have been improper either in relation to the plaintiffs entering the transaction or in preventing or interfering with the corporation’s performance or ability to perform its obligations toward the plaintiff.”
Neidig,
The Neidig court noted the Amfac test, “although easily stated, may not be easily applied .... Indeed, each part of the test—control, wrongful conduct, and cau
“While the factors that will justify piercing the corporate veil vary from jurisdiction to jurisdiction, a number of courts will disregard the existence of a corporate entity when the plaintiff shows: (1) control, not merely majority or complete stock control, but complete domination, not only of the finances, but of policy and business practice in respect to the transaction so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control was used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or to commit a dishonest and unjust act in contravention of the plaintiffs legal rights; and (3) that the aforesaid control and breach of duty proximately caused the injury or unjust loss.”
Neidig,
Stated another way:
To pierce the corporate veil, ... plaintiff must make a prima facie showing that the individual defendants controlled the corporations, that they engaged in improper conduct in their exercise of control, and that their improper conduct caused plaintiffs inability to obtain an adequate remedy from the corporation.
Aero Planning Int’l, Inc. v. Air Assoc., Inc.,
In the present case, Jacobson has submitted a Declaration in which he states he “had no involvement in any alleged showing of a UFC event on January 17, 2009, at the Porterhouse Restaurant.” Dkt. # 24, ¶ 4. Joe Hand has offered no contrary evidence. Likewise, it has offered no evidence that raises an issue of fact regarding Jacobson’s personal involvement in causing Joe Hand to be unable to collect a judgment against the corporation. Joe Hand has failed to meet its burden to “designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp.,
B. Timeliness
The defendants argue Joe Hand’s FCA claims are untimely under both Federal Rule of Civil Procedure 4(m), and the FCA, as interpreted by this court in Kingvision Pay-Per-View Ltd. v. Shilo Inn, 05-cv-1065-HU, Dkt. # 18, Findings & Recommendation (D.Or. Mar. 1, 2006) (Hubei M.J.), adopted at Dkt. # 25 (D.Or. Apr. 26, 2006) (Redden, J.).
Joe Hand responds that the Complaint was timely filed. It asserts the filing deadline fell on a legal holiday—Martin Luther King Day, January 17, 2011—and
In Kingvision, I noted the FCA does not, itself, contain a limitations period for private actions by non-carriers for violations of the “anti-piracy provisions.” I analyzed relevant case law, and concluded the federal Electronic Communications Privacy Act (ECPA) is most analogous to the FCA, and the ECPA’s two-year statute of limitations is appropriate for private actions brought under the FCA’s anti-piracy provisions. My analysis was adopted by Judge James A. Redden of this court, who applied the two-year statute of limitations in a similar case. See Kingvision, supra.
Nothing has occurred to change that analysis here. The two-year statute of limitations in the analogous ECPA is appropriately applied to Joe Hand’s Complaint. The defendants’ unauthorized interception and transmission of the Program allegedly occurred on January 17, 2009,
The defendants also assert a second timeliness argument, based on Joe Hand’s failure to serve them within 120 days after the Complaint was filed. The case was filed on January 18, 2011, and a Scheduling Order was entered by the court. On June 29, 2011, when no timely service of process had been made within 120 days as required by Federal Rule of Civil Procedure 4(m), the court entered an order requiring Joe Hand to show cause by July 28, 2011, why the case should not be dismissed for failure to prosecute. Dkt. #4. In response, Joe Hand’s counsel submitted a letter outlining his efforts to locate and serve the defendants, and to attempt to obtain a waiver of service. Dkt. # 5. The court accepted counsel’s explanation of his failure to effect service of process, and set a new service deadline of September 16, 2011. Dkt. #6.
When, once again, service had not been made by the deadline, the court entered another Order to Show Cause, directing Joe Hand to show cause by October 26, 2011, why the case should not be dismissed for failure to prosecute. Dkt. # 7. In response, Joe Hand’s counsel had Summonses issued to the defendants on October 12, 2011, Dkt. # 8; the defendants were served on October 13, 2011, Dkt. ## 9-1 & 9-2; and Joe Hand filed a writ
The defendants argue the court erred in failing to dismiss the case when Joe Hand failed to effect service of process earlier. They argue there was no showing of good cause for Joe Hand’s failure to effect service prior to the original deadline, and the court should reverse its order finding good cause had been shown. The defendants claim Joe Hand’s failure even to get Summonses issued until October 12, 2011, showed a lack of diligence in prosecuting the action. They further argue, without citation to any supporting authority, that the court lacked authority to extend the date for service a second time without good cause, and they claim Joe Hand lacked good cause for its failure to effect service of process sooner. Dkt. # 25, pp. 24-26.
The defendants rely on Federal Rule of Civil Procedure 4(m), which provides, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period ....
Fed.R.Civ.P. 4(m). On both occasions, the court found Joe Hand had shown good cause for its failure to effect service on the defendants sooner. Joe Hand was attempting to avoid the costs of personal service by requesting a waiver, pursuant to Federal Rule of Civil Procedure 4(d). When those efforts ultimately proved unsuccessful, Joe Hand had Summonses issued and served the defendants personally.
The court finds no reasons to disturb its prior rulings that Joe Hand had shown good cause for failure to effect service sooner. Further, the court rejects the defendants’ argument that the time to effect service may only be extended once under Rule 4(m). The defendants’ motion for summary judgment is denied on this basis.
C. Conversion
The defendants argue Joe Hand cannot show conversion occurred under Oregon law, and even if the Program was shown, which they deny, its showing would constitute “ ‘no more than a trespass which may be compensated by the actual damage inflicted upon the owner, which would be covered by the reasonable value of the use to which it was put.’ ” Dkt. # 25, p. 5 (quoting Jeffries v. Pankow,
Joe Hand responds, first, that whether its “action is properly styled conversion or trespass ... matters less under notice pleading than it would under Oregon law.” Dkt. #26, p. 3. Joe Hand asserts the defendants are on notice of the nature of the claim, and can respond to it. Id. Second, Joe Hand argues the defendants’ actions do, in fact, meet the elements of conversion under Oregon law. And third, Joe Hand asserts the defendants are relying on an inappropriate definition of “chattel,” taken from the Oregon definition applicable to lien statutes. Joe Hand claims the definition upon which the defendants rely “is not a statutory definition of chattel for purposes of conversion.” Id. However, Joe Hand offers no alternative definition for “chattel” that it claims the court should apply in this case.
“(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
“(a) the extent and duration of the actor’s exercise of dominion or control;
“(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
“(c) the actor’s good faith;
“(d) the extent and duration of the resulting interference with the other’s right of control;
“(e) the harm done to the chattel;
“(f) the inconvenience and expense caused to the other.”
Id. (citing Mustola v. Toddy,
An actor can even commit conversion unknowingly, “if the actor mistakenly believes that he or she is acting legally with respect to the other person’s property, ... and even if the actor innocently acquires the property from a knowing converter.” In re Conduct of Martin,
Here, the parties disagree as to whether the Program constituted a “chattel” that was capable of being converted. The defendants rely on the definition of “chattel” that applies in the case of statutory liens; i.e., “movable objects that are capable of being owned, but does not include personal rights not reduced to possession but recoverable by an action at law or suit in equity, money, evidence of debt and negotiable instruments.” ORS § 87.142. Joe Hand argues this definition does not apply for purposes outside the statutory lien context.
“A chattel is ‘[mjovable or transferable property; personal property; esp. a physical object capable of manual delivery and not the subject matter of real property.’ ” Rapacki v. Chase Home Finance LLC,
The Chappell court cited, with approval, Olschewski v. Hudson,
As the nature of property interests began to change, so, too, did the law relating to the type of property that is capable of conversion. Over forty years ago, the United States Court of Appeals for the District of Columbia Circuit observed the “traditional rule ... that conversion will lie only for the taking of tangible property, or rights embodied in a tangible token necessary for the enforcement of those rights,” had been “relaxed in favor of the reasonable proposition that any intangible generally protected as personal property may be the subject matter of a suit for conversion.” Pearson v. Dodd,
The Oregon courts do not appear to have considered whether an intangible right, such as Joe Hand’s license to distribute the Program, constitutes a “chattel” capable of being converted, nor have the Oregon courts ever expressly excluded intangible personal property from the definition of a “chattel” for purposes of a conversion action. In the context of property tax laws, Oregon statutes define what constitutes “intangible personal property,” distinguishing such property from “ ‘[tjangible personal property’ [which] in-
In Reynolds v. Schrock,
It thus appears there is no controlling precedent in the decisions of the Oregon appellate courts as to whether the type of property at issue here would fall within the definition of a “chattel” capable of conversion. Nevertheless, I find it likely the Oregon courts would conclude that a license or contractual right to receive a transmitted signal; to rebroadcast the signal; and to determine when, where, and by whom the program contained within the signal can be displayed or exhibited, constitutes a chattel that can be converted. This holding is consistent with courts’ treatment of the evolving state of property and property rights. As Justice Stevens once observed, “The human condition is one of constant learning and evolution— both moral and practical. Legislatures im
I find it likely the Oregon courts would concur with decisions from other jurisdictions holding rights such as those claimed by Joe Hand in this case are subject to conversion. See, e.g., J & J Sports Productions, Inc. v. Gamino, slip op.,
The appellate court affirmed the chancery court’s decision. The court noted the Tennessee Code defines “tangible personal property” as “ ‘personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses.’ ” Id.,
In the present case, Joe Hand possessed a license or contract right to the broadcast signal containing the Program. I find persuasive the Tennessee court’s conclusion that a broadcast signal is, in some sense, tangible property. Joe Hand was contractually entitled to determine when, where, and by whom the broadcast signal containing the Program could be displayed to the viewing public. An unauthorized showing of the Program would result in an exercise of dominion or control over the broadcast signal constituting a “failure to yield possession.” I find, therefore, that the broadcast signal was subject to conversion, and Joe Hand can maintain its conversion action. As a result, the defendants’ motion for summary judgment on the conversion claim is denied.
CONCLUSION
In conclusion, the defendants’ motion for summary judgment as to Jacobson, in his individual capacity, is granted, and the motion is denied on all other grounds.
IT IS SO ORDERED.
Notes
. Section 553 prohibits the unauthorized reception or receipt of "any communications service offered over a cable system, or assisting in the unauthorized reception or receipt of such service.” 47 U.S.C. § 553(a). Section 553 provides for a private right of action for injunctive relief, damages, and attorneys' fees to "any aggrieved party who prevails.” 47 U.S.C. § 553(c).
. Section 605 prohibits the unauthorized receipt, assistance in receiving, transmitting, or assisting in transmitting, of communications by wire or radio. Prohibited practices include divulging or publishing the intercepted communications for the benefit of the recipient or of "another not entitled thereto.” 47 U.S.C. § 605(a). Section 605 provides for a private right of action for injunctive relief, damages, attorney's fees, and costs. 47 U.S.C. § 605(e).
. The actual applicable subsection is (a)(1)(C), rather than "6(c).'’ Compare Fed.R.Civ.P. 6(a)(1)(C) with Fed.R.Civ.P. 6(c).
. The Affidavit of investigator Steve Wilson submitted by Joe Hand contains a discrepancy regarding the date the Program allegedly was shown. On page one, Wilson states he saw the Program being shown on January 17, 2007; on page two, he states the date was January 17, 2009. At oral argument, Joe Hand’s counsel indicated Wilson's deposition has been taken, and Wilson explained this was a scrivener's error; the correct date was 2009. Neither party has submitted a copy of the deposition to the court, but the defendants do not argue that the 2007 date was anything other than a scrivener’s error. For purposes of the defendants' motion for summary judgment, I accept the explanation that the date discrepancy was the result of a scrivener's error.