United States District Court, D. Nevada
M. Navarro, Chief Judge.
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
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
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-?).
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.
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.
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
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).
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.
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.
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. (See MSJ 1:20- 24, ...