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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS,
INC.,

No.

CIV. S-13-0877 LKK/CKD

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Plaintiff,
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ORDER
v.

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JOYCE ANN SKINNER and LARRY
LEROY SKINNER, individually
and d/b/a CAMANCHE HILLS
DINNER HOUSE & LOUNGE A/K/A
BELLA ROSA,

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Defendants.
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_____________________________
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JOYCE ANN SKINNER and LARRY
LEROY SKINNER,

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Defendants and
Third-Party
Plaintiffs,

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v.
BRIAN M. ELIA and MICHAEL
ELIA,

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Third-Party
Defendants.

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Third-party defendants move to dismiss the third-party
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complaint.

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granted.

For the reasons set forth below, the motion will be

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I.

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BACKGROUND

On May 5, 2012, the boxing match between Floyd Mayweather,

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Jr. and Miguel Cotto (the “Match”) was telecast nationwide.

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First Amended Complaint (ECF No. 24) ¶ 23.

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Productions, Inc., “was granted the exclusive nationwide

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commercial distribution (closed-circuit) rights” to the Program.

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Id.

See

Plaintiff J&J Sports

The First Amended Complaint alleges that defendants Joyce

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and Larry Skinner, are the owners and operators of the Camanche

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Hills Dinner House & Lounge (the “Lounge”).

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day of the Program, the defendants directed the Lounge employees

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to unlawfully intercept and broadcast the Match.

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Id., ¶¶ 7-8.

On the

Id., ¶ 14.

On May 3, 2013, plaintiff filed their original complaint

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against the Skinners (ECF No. 1), asserting claims under the

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Cable Communications Policy Act of 1984, 47 U.S.C. §§ 553,1 and

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the Communications Act of 1934, 47 U.S.C § 605,2 as well as state

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law claims, for the alleged unauthorized interception and

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broadcast of the Match.

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Thereupon, the Skinners filed a third-party complaint

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against Michael and Brian Elia (father and son).

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Complaint (“Complaint”) (ECF No. 16).

Third Party

The third-party complaint

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“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.
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“[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.
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alleges that although the Skinners are the owners of the real

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estate and building where the Lounge is located, the Elias are

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the operators of the Lounge.

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complaint asserts that if anyone unlawfully intercepted and

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broadcast the Match in the Lounge, it was the Elias, and that any

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such wrongdoing was carried out without the knowledge,

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acquiescence or assistance of the Skinners.

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Id., ¶ 7.

The third-party

Id., ¶ 11.

The Elias move to dismiss the third-party complaint in its
entirety.
II.

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DISMISSAL STANDARDS

A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges

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a complaint’s compliance with the federal pleading requirements.

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Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short

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and plain statement of the claim showing that the pleader is

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entitled to relief.”

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“‘fair notice of what the ... claim is and the grounds upon which

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it rests.’”

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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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

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factual allegations.

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(2009).

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factual allegations contained in the complaint.”

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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.

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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)).
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“While legal conclusions can provide the framework of a

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complaint,” neither legal conclusions nor conclusory statements

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are themselves sufficient, and such statements are not entitled

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to a presumption of truth.

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Twombly therefore prescribe a two-step process for evaluation of

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motions to dismiss.

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conclusory factual allegations, and then determines whether these

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allegations, taken as true and construed in the light most

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favorable to the plaintiff, “plausibly give rise to an

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Iqbal and

The court first identifies the non-

entitlement to relief.”

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Iqbal, 556 U.S. at 679.

Iqbal, 556 U.S. at 679.

“Plausibility,” as it is used in Twombly and Iqbal, does not

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refer to the likelihood that a pleader will succeed in proving

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the allegations.

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conclusory factual allegations, when assumed to be true, “allow[]

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the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”

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“The plausibility standard is not akin to a ‘probability

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requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 557).4

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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
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by lacking a cognizable legal theory or by lacking sufficient

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facts alleged under a cognizable legal theory.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Balistreri v.

III. ANALYSIS

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A.

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Third party plaintiffs (Skinners) seek a declaration that

Claim One – Declaratory Relief.

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the third party defendants (Elias) are liable to the Skinners for

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any and all “legal costs, attorney’s fees, required settlement,

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and/or judgment” entered against the Skinners.

Defendants move

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to dismiss on the grounds that the Skinners are seeking

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indemnity, which is not permitted against federal claims under

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Sections 553 and 605.

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Doherty v. Wireless Broadcasting Systems of Sacramento, Inc., 151

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F.3d 1129, 1130-31 (9th Cir. 1998) (no right of indemnification

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or contribution exists against a suit for unauthorized

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interception and broadcast of boxing match, under Sections 553

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and 605), cert. denied, 528 U.S. 813 (1999).

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Third-party defendants are correct.

The Skinners concede the point.

ECF No. 33 at 8.

However,

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the Skinners assert that they are still entitled to a declaratory

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judgment to apportion blame.

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are entitled to show that they were “innocent, non-participating

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parties, without knowledge or consent to the alleged pirating –

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so their liability can be limited to the minimum amount

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prescribed by these two statutes.”

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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).
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Id., at 9.

They argue that they

Id.

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The Skinners do not cite any statute or case that would

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permit the declaratory judgment action to go forward in light of

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the absence of any possible indemnity or contribution.

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relevant statute, meanwhile, clearly cuts against their argument.

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The showing that plaintiffs want to make – that they did nothing

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wrong – is a showing that is a part of the defense against the

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primary claim against them, and is specifically addressed in the

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statute:

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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.

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47 U.S.C. § 553(c)(3)(B).

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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.

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The

47 U.S.C.A. § 605(e)(3)(C)(iii).

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Accordingly, there is no need to try the issue in a separate

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third-party lawsuit.5

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complaint will therefore be dismissed in its entirety, with

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prejudice.

The first claim of the third-party

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B.

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The remaining third-party claims are purely state claims for

Claims 2-4 – State Claims.

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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.

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“declaratory relief for equitable comparative indemnity,”

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“implied contractual indemnity,” and “tort of another.”

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no federal question presented, no diversity jurisdiction, nor are

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any other grounds for federal jurisdiction apparent.

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Accordingly, the court declines to exercise supplemental

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jurisdiction over the state claims, and will dismiss the Second

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Claim, Third Claim and Fourth claim without prejudice.

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U.S.C. § 1367(c)(3) (district court may decline to exercise

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supplemental jurisdiction over state claims when it has

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There is

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“dismissed all claims over which it has original jurisdiction”).

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IV.

CONCLUSION

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For the reasons stated above,

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1.

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The First Claim of the third-party complaint is hereby

DISMISSED with prejudice;

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2.

The court declines to exercise jurisdiction over the

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Second Claim, Third Claim and Fourth Claim of the third-party

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complaint, pursuant to 28 U.S.C. § 1367(c)(3), and accordingly,

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those claims are hereby DISMISSED without prejudice;6 and

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3.

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IT IS SO ORDERED.

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DATED:

The Clerk is directed to close this case.

May 27, 2014.

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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).

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