J & J Sports Productions, Inc. v. Skinner et al

Filing 46

ORDER signed by Judge Lawrence K. Karlton on 5/27/14: The First Claim of the third-party complaint is hereby DISMISSED with prejudice. The court declines to exercise jurisdiction over the Second Claim, Third Claim and Fourth Claim of the third-party complaint and accordingly those claims are hereby DISMISSED without prejudice. CASE CLOSED. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 J & J SPORTS PRODUCTIONS, INC., No. CIV. S-13-0877 LKK/CKD 12 Plaintiff, 13 ORDER v. 14 15 16 JOYCE ANN SKINNER and LARRY LEROY SKINNER, individually and d/b/a CAMANCHE HILLS DINNER HOUSE & LOUNGE A/K/A BELLA ROSA, 17 Defendants. 18 _____________________________ 19 20 JOYCE ANN SKINNER and LARRY LEROY SKINNER, 21 Defendants and Third-Party Plaintiffs, 22 23 24 v. BRIAN M. ELIA and MICHAEL ELIA, 25 26 Third-Party Defendants. 27 28 Third-party defendants move to dismiss the third-party 1 1 complaint. 2 granted. For the reasons set forth below, the motion will be 3 I. 4 BACKGROUND On May 5, 2012, the boxing match between Floyd Mayweather, 5 Jr. and Miguel Cotto (the “Match”) was telecast nationwide. 6 First Amended Complaint (ECF No. 24) ¶ 23. 7 Productions, Inc., “was granted the exclusive nationwide 8 commercial distribution (closed-circuit) rights” to the Program. 9 Id. See Plaintiff J&J Sports The First Amended Complaint alleges that defendants Joyce 10 and Larry Skinner, are the owners and operators of the Camanche 11 Hills Dinner House & Lounge (the “Lounge”). 12 day of the Program, the defendants directed the Lounge employees 13 to unlawfully intercept and broadcast the Match. 14 Id., ¶¶ 7-8. On the Id., ¶ 14. On May 3, 2013, plaintiff filed their original complaint 15 against the Skinners (ECF No. 1), asserting claims under the 16 Cable Communications Policy Act of 1984, 47 U.S.C. §§ 553,1 and 17 the Communications Act of 1934, 47 U.S.C § 605,2 as well as state 18 law claims, for the alleged unauthorized interception and 19 broadcast of the Match. 20 Thereupon, the Skinners filed a third-party complaint 21 against Michael and Brian Elia (father and son). 22 Complaint (“Complaint”) (ECF No. 16). Third Party The third-party complaint 23 1 24 25 26 27 28 “No person shall intercept … any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law.” 47 U.S.C. § 553. 2 “[N]o person receiving, … any interstate … communication by wire … shall … publish the … contents … thereof, except through authorized channels of transmission or reception.” 47 U.S.C. § 605. 2 1 alleges that although the Skinners are the owners of the real 2 estate and building where the Lounge is located, the Elias are 3 the operators of the Lounge. 4 complaint asserts that if anyone unlawfully intercepted and 5 broadcast the Match in the Lounge, it was the Elias, and that any 6 such wrongdoing was carried out without the knowledge, 7 acquiescence or assistance of the Skinners. 8 9 Id., ¶ 7. The third-party Id., ¶ 11. The Elias move to dismiss the third-party complaint in its entirety. II. 10 11 DISMISSAL STANDARDS A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges 12 a complaint’s compliance with the federal pleading requirements. 13 Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short 14 and plain statement of the claim showing that the pleader is 15 entitled to relief.” 16 “‘fair notice of what the ... claim is and the grounds upon which 17 it rests.’” 18 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 The complaint must give the defendant Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) To meet this requirement, the complaint must be supported by 20 factual allegations. 21 (2009). 22 factual allegations contained in the complaint.” 23 Pardus, 551 U.S. 89, 94 (2007).3 Ashcroft v. Iqbal, 556 U.S. 662, 678 Moreover, this court “must accept as true all of the Erickson v. 24 3 25 26 27 28 Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“What Rule 12(b)(6) does not countenance are dismissals based on a judge’s disbelief of a complaint’s factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]t may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test” under Rule 12(b)(6)). 3 1 “While legal conclusions can provide the framework of a 2 complaint,” neither legal conclusions nor conclusory statements 3 are themselves sufficient, and such statements are not entitled 4 to a presumption of truth. 5 Twombly therefore prescribe a two-step process for evaluation of 6 motions to dismiss. 7 conclusory factual allegations, and then determines whether these 8 allegations, taken as true and construed in the light most 9 favorable to the plaintiff, “plausibly give rise to an 10 Iqbal and The court first identifies the non- entitlement to relief.” 11 Iqbal, 556 U.S. at 679. Iqbal, 556 U.S. at 679. “Plausibility,” as it is used in Twombly and Iqbal, does not 12 refer to the likelihood that a pleader will succeed in proving 13 the allegations. 14 conclusory factual allegations, when assumed to be true, “allow[] 15 the court to draw the reasonable inference that the defendant is 16 liable for the misconduct alleged.” 17 “The plausibility standard is not akin to a ‘probability 18 requirement,’ but it asks for more than a sheer possibility that 19 a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. 20 at 557).4 21 4 22 23 24 25 26 27 28 Instead, it refers to whether the non- Iqbal, 556 U.S. at 678. A complaint may fail to show a right to relief either Twombly imposed an apparently new “plausibility” gloss on the previously well-known Rule 8(a) standard, and retired the longestablished “no set of facts” standard of Conley v. Gibson, 355 U.S. 41 (1957), although it did not overrule that case outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir. 2009) (the Twombly Court “cautioned that it was not outright overruling Conley ...,” although it was retiring the “no set of facts” language from Conley). The Ninth Circuit has acknowledged the difficulty of applying the resulting standard, given the “perplexing” mix of standards the Supreme Court has applied in recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir. 2011) (comparing the Court’s application of the “original, more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534 4 1 by lacking a cognizable legal theory or by lacking sufficient 2 facts alleged under a cognizable legal theory. 3 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 4 Balistreri v. III. ANALYSIS 5 A. 6 Third party plaintiffs (Skinners) seek a declaration that Claim One – Declaratory Relief. 7 the third party defendants (Elias) are liable to the Skinners for 8 any and all “legal costs, attorney’s fees, required settlement, 9 and/or judgment” entered against the Skinners. Defendants move 10 to dismiss on the grounds that the Skinners are seeking 11 indemnity, which is not permitted against federal claims under 12 Sections 553 and 605. 13 Doherty v. Wireless Broadcasting Systems of Sacramento, Inc., 151 14 F.3d 1129, 1130-31 (9th Cir. 1998) (no right of indemnification 15 or contribution exists against a suit for unauthorized 16 interception and broadcast of boxing match, under Sections 553 17 and 605), cert. denied, 528 U.S. 813 (1999). 18 Third-party defendants are correct. The Skinners concede the point. ECF No. 33 at 8. However, 19 the Skinners assert that they are still entitled to a declaratory 20 judgment to apportion blame. 21 are entitled to show that they were “innocent, non-participating 22 parties, without knowledge or consent to the alleged pirating – 23 so their liability can be limited to the minimum amount 24 prescribed by these two statutes.” 25 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), with the seemingly “higher pleading standard” in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and Iqbal), cert. denied, 132 S. Ct. 2101 (2012). See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set of facts” standard to a Section 1983 case). 5 26 27 28 Id., at 9. They argue that they Id. 1 The Skinners do not cite any statute or case that would 2 permit the declaratory judgment action to go forward in light of 3 the absence of any possible indemnity or contribution. 4 relevant statute, meanwhile, clearly cuts against their argument. 5 The showing that plaintiffs want to make – that they did nothing 6 wrong – is a showing that is a part of the defense against the 7 primary claim against them, and is specifically addressed in the 8 statute: 9 In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $100. 10 11 12 13 47 U.S.C. § 553(c)(3)(B). 14 Also: In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250. 15 16 17 18 The 47 U.S.C.A. § 605(e)(3)(C)(iii). 19 Accordingly, there is no need to try the issue in a separate 20 third-party lawsuit.5 21 complaint will therefore be dismissed in its entirety, with 22 prejudice. The first claim of the third-party 23 B. 24 The remaining third-party claims are purely state claims for Claims 2-4 – State Claims. 25 26 27 5 In addition, the primary plaintiff has notified the court that the primary lawsuit has been settled. See ECF No. 43. If so, the Skinners’ liability has already been decided, and there is no reason to try the matter in a third-party lawsuit. 28 6 1 “declaratory relief for equitable comparative indemnity,” 2 “implied contractual indemnity,” and “tort of another.” 3 no federal question presented, no diversity jurisdiction, nor are 4 any other grounds for federal jurisdiction apparent. 5 Accordingly, the court declines to exercise supplemental 6 jurisdiction over the state claims, and will dismiss the Second 7 Claim, Third Claim and Fourth claim without prejudice. 8 U.S.C. § 1367(c)(3) (district court may decline to exercise 9 supplemental jurisdiction over state claims when it has 10 There is See 28 “dismissed all claims over which it has original jurisdiction”). 11 IV. CONCLUSION 12 For the reasons stated above, 13 1. 14 The First Claim of the third-party complaint is hereby DISMISSED with prejudice; 15 2. The court declines to exercise jurisdiction over the 16 Second Claim, Third Claim and Fourth Claim of the third-party 17 complaint, pursuant to 28 U.S.C. § 1367(c)(3), and accordingly, 18 those claims are hereby DISMISSED without prejudice;6 and 19 3. 20 IT IS SO ORDERED. 21 DATED: The Clerk is directed to close this case. May 27, 2014. 22 23 24 25 26 27 6 The statute of limitations for the state claims have been tolled during the pendency of this lawsuit, by operation of law. 28 U.S.C. § 1367(d); see Jinks v. Richland County, S.C., 538 U.S. 456, 460 (2003) (the Section 1367(d) tolling provision is constitutional). 28 7

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