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Comcast of Illinois X, LLC v. Toguchi

February 11, 2008

COMCAST OF ILLINOIS X, LLC., PLAINTIFF,
v.
DENNIS TOGUCHI, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter is before us on both Defendant Dennis Toguchi ("Toguchi")'s motion to alter or amend this court's summary judgment ruling in favor of Plaintiff Comcast of Illinois X, LLC ("Comcast") and Plaintiff's motion for judgment. For the reasons set forth below, Toguchi's motion is denied and Comcast's motion is granted.

BACKGROUND

Comcast filed suit against Toguchi in September 2005 alleging that he had violated the Cable Communications Act (the "Act"), 47 U.S.C. § 553(a), and several Illinois state statutes. Comcast later voluntarily dismissed the state counts against Toguchi and filed a motion for summary judgment. In June 2007, we denied Comcast's motion for summary judgment for three reasons: 1) Comcast's presentation of the material facts at issue were insufficient to permit us to decide the motion;

2) Comcast provided no legal authority to support its proposition that mere possession of a Boss VII*fn1 implies that Comcast's programming was in fact intercepted or that mere distribution of the Boss VII implies that such distribution was done with the intent to facilitate unauthorized interception of its programming; and

3) Comcast's allegations in its Local Rule 56.1 statement were not properly supported by the record.

Comcast subsequently remedied the deficiencies in its original motion for summary judgment and filed a new motion for summary judgment in August 2007. In an effort to defeat Comcast's second motion for summary judgment, Toguchi cited his self-serving affidavit to show that an issue of fact existed. The Seventh Circuit has held that"self-serving affidavits without factual support in the record will not defeat a motion for summary judgment." Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998) citing Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993). No facts in the record existed to support Toguchi's affidavit, so it was stricken from the record. Subsequently, we entered summary judgment in Comcast's favor and found that Toguchi had personally used a Boss VII and had sold at least three Boss VII's in violation of § 553(a).

Within the time permitted by Fed. R. Civ. P. 59, Toguchi moved to alter or amend our judgment contending: 1) that we should have found that he had no reason to believe that his acts constituted a violation of § 553(a); 2) that we violated the "law of the case" doctrine by allowing Comcast to file a second motion for summary judgment; 3) that Comcast's August 2007 motion for summary judgment failed to correct the deficiencies found in its initial motion; and 4) that it was an abuse to strike his entire affidavit.

In response, Comcast filed a motion for judgment against Toguchi seeking statutory damages pursuant to § 553(c)(3)(A)(ii) in the amount of $40,000 and attorneys' fees and costs pursuant to § 553(c)(2)(C) in the amount of $15,043.50, for a total judgment of $55,043.50.

I. Toguchi's Motion to Alter or Amend Judgment Pursuant to Rule 59(e)

A. Legal Standard

Rule 59(e) motions to alter or amend a judgment "must clearly establish either a manifest error of law or fact or must present newly discovered evidence." LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). The losing party's disappointment does not create a "manifest error." Oto v. Metro Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). A manifest error is demonstrated by a court's "wholesale disregard, misapplication, or failure to recognize controlling precedent." Oto, 224 F.3d at 606. A Rule 59(e) motion "does not allow a party to introduce new evidence or advance arguments that could or should have been presented to the district court prior to the judgment." Popovits v. Circuit City Stores, 185 F.3d 726, 730 (7th Cir. 1999).

B. Discussion

All four of Toguchi's arguments fail to meet the requirements of Rule 59. His first argument, that he had no reason to believe that his acts violated ยง 553(a), fails because it is identical to one that he made in his response to Comcast's motion for summary judgment and it is not proper to present previously litigated arguments in a Rule 59 motion. Holden v. Deloitte and Touche, 390 F.Supp.2d 752, 757 (N.D. Ill. 2005). Popovits, 185 F.3d at 730. Toguchi's second and third arguments, that we did not follow the "law of the case" doctrine and that Comcast's August 2007 summary judgment motion was deficient, fail because they could or should have been presented to us before our December 2007 ruling. Id. Toguchi's final argument consists of one sentence in which he states that it was an abuse to strike the entirety of his affidavit. Such a ...


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