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Players Network, Inc. v. Comcast Corp.

United States District Court, D. Nevada

March 6, 2017

PLAYERS NETWORK, INC., Plaintiff,
v.
COMCAST CORPORATION, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion for Summary Judgment, (ECF No. 63), filed by Defendants Comcast Corporation, Comcast Programming Development, Inc., and Comcast Cable Communications, LLC (collectively “Defendants”). Plaintiff Players Network, Inc. (“Plaintiff”) filed a Response, (ECF No. 70), and Defendants filed a Reply, (ECF No. 75). For the reasons discussed below, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.

         I. BACKGROUND

         This case arises out of a dispute over an agreement (“Agreement”) executed between Plaintiff and Comcast Programming Development, Inc. (See Second Am. Compl. (“SAC”), ECF No. 1-1). Plaintiff is a Nevada corporation that produces and sells movie and television programming related to “any type of content in and around the Las Vegas area.” Defendants own and operate television channels that broadcast programming content. (Id. ¶¶ 6, 13-17); (see also Agreement at 2, ECF No. 12-2). Pursuant to the Agreement, Plaintiff provided “specialty interest programming networks” for Defendants' video-on-demand (“VOD”) platform. (Agreement at 2).

         On November 1, 2005 (the “Effective Date”), Plaintiff and Defendants entered into the Agreement allowing Defendants to show Plaintiff's programming on Defendants' VOD platform. (Id.). Plaintiff's Chief Executive Officer, Mark Bradley (“Bradley”), participated in negotiation of the Agreement and signed it on behalf of Plaintiff. (Id. at 16); (Bradley Dep., Ex. 2 to Mot. for Summ. J. (“MSJ”) 50:16-20, ECF No. 63-?).

         The parties allude to their strained relationship during performance of the Agreement; indeed, Defendants indicate that they attempted to terminate the Agreement early. (MSJ 13:27- 14:10). However, the parties fail to clarify whether the Agreement was terminated or still in effect at the time Plaintiff initiated this case, and Plaintiff does not allege early termination as a basis for its breach of contract claim. Instead, Plaintiff's claims center on its allegations that the Agreement required Defendants to supply dynamic ad insertion, which the parties refer to as “middleware technology.” (See, e.g., SAC ¶¶ 25, 43, 45, 48). Based upon these allegations, Plaintiff filed its Second Amended Complaint asserting claims for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) tortious breach of the implied covenant of good faith and fair dealing; (5) tortious interference with prospective economic gain; (6) breach of a consent decree; and (7) fraudulent misrepresentation. (Id. ¶¶ 54-87).

         On August 11, 2015, the Court granted Defendants' Motion for Judgment on the Pleadings, dismissing with prejudice: (1) Plaintiff's breach of the implied covenant of good faith and fair dealing claim, insomuch as it is premised on an implied contractual obligation that Defendants utilize dynamic ad insertion; (2) breach of fiduciary duty; (3) tortious breach of the implied covenant of good faith and fair dealing; (4) tortious interference with prospective economic advantage; and (5) fraudulent misrepresentation. (See Mot. for J. (“MJP”) Order, ECF No. 52). Defendants filed the instant Motion seeking summary judgment for Plaintiff's remaining causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. (See MSJ 1:20-24, ECF No. 63).

         II. LEGAL STANDARD

         The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).

         If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

         At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         III.DISCUSSION

         Defendants seek summary judgment on the remaining causes of action: (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing.[1] (See MSJ 1:20- 24, ...


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