Joe Hand Promotions, Inc. v. Cariaso et al

Filing 39

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFFS MOTION TO STRIKE; AND VACATING DECEMBER 21, 2012 HEARING 35 28 31 (Illston, Susan) (Filed on 12/18/2012) (Additional attachment(s) added on 12/18/2012: # 1 Certificate of Service) (tlS, COURT STAFF).

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

10
11
12
13
14
15

No. C 12-2706 SI

JOE HAND PROMOTIONS INC,

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS AND DENYING
PLAINTIFF’S MOTION TO STRIKE;
AND VACATING DECEMBER 21, 2012
HEARING

Plaintiff,
v.
CHRISTOPHER CARIASO, et al.,
Defendants.

/

16
17

Defendant Cariaso’s motion to dismiss the complaint and plaintiff’s motion to strike are

18

scheduled for a hearing on December 21, 2012. Docket Nos. 28 & 31. Pursuant to Civil Local Rule 7-

19

1(b), the Court determines that these matters are appropriate for resolution without oral argument, and

20

VACATES the hearing. The case management conference has been rescheduled to December 20,

21

2012 at 9:00 a.m.

22
23

BACKGROUND

24

Plaintiff, the exclusive licensor of rights to exhibit certain closed circuit and pay-per-view sports

25

programming, brought suit against Christopher Cariaso, individually and d/b/a Fight and Fitness, and

26

against Fight and Fitness, Inc. The complaint alleges that Fight and Fitness is located at 123 Van Ness

27

Avenue, San Francisco, and that Cariaso is the legal operator of Fight and Fitness. Compl. ¶¶ 7-8.

28

1

The complaint alleges that plaintiff was granted the exclusive nationwide commercial

2

distribution (closed-circuit) rights to Ultimate Fighting Championship 130: Quinton Jackson v. Matt

3

Hamill, including the undercard bouts and commentary (the “Program”). Id. ¶ 16. The complaint

4

alleges that defendants “unlawfully intercepted and broadcasted” the Program on May 28, 2011, at Fight

5

and Fitness. Id. ¶ 11. The complaint alleges that defendants are liable under the Federal Communications

6

Act, 47 U.S.C. §§ 553 and 605, for receiving, intercepting and assisting in the receipt or interception

7

of licensed programming. 47 U.S.C. § 605 prohibits the unauthorized interception of satellite

8

programming, and 47 U.S.C. § 553 prohibits unauthorized interception of cable programming. The

9

complaint does not allege which method of transmission defendants used.

United States District Court
For the Northern District of California

10
11

LEGAL STANDARD

12

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

13

fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

14

the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

15

Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff

16

to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

17

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of

18

specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.”

19

Twombly, 550 U.S. at 555, 570.

20

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court

21

must assume that the plaintiff’s allegations are true and must draw all reasonable inferences in the

22

plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the

23

court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions

24

of fact, or unreasonable inferences.” In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

25

2008).

26
27
28
2

1

DISCUSSION

2

Defendant Cariaso has moved to dismiss the complaint. Defendant states that he showed the

3

Program through a streaming Internet connection and that he did not intercept any cable or satellite

4

signal. Defendant has submitted a declaration stating that on May 28, 2011, the Program was shown at

5

Fight and Fitness after regular business hours during a private gathering for his friends and family, and

6

that an employee of Fight and Fitness paid for the transmission of the Program through a “Roku” device

7

which streamed an Internet signal. Docket No. 28-1 ¶¶ 6-8. Based upon these factual assertions,

8

defendant argues that “plaintiff has no standing to bring cable and satellite theft law claims against me.”

9

Docket No. 28 at 3:3.

United States District Court
For the Northern District of California

10

The Court concludes that dismissal is not appropriate because defendant’s motion presents

11

factual questions that cannot be resolved at this stage of the litigation. Defendant’s motion to dismiss

12

is premised on the factual assertion that defendant did not violate the Communications Act because

13

defendant streamed the Program from the internet. However, the complaint alleges claims for unlawful

14

interception of cable and satellite programming, and plaintiff is entitled to take discovery in order to

15

determine the precise method of interception. Defendant may renew his arguments on a fuller factual

16

record in a motion for summary judgment.

17

Accordingly, the Court DENIES defendant’s motion to dismiss the complaint. The Court

18

sustains plaintiff’s objections to the Solomon declaration and DENIES plaintiff’s motion to strike. The

19

Court DENIES AS MOOT defendant’s request to allow Mr. Solomon to represent him at the hearing,

20

as the hearing on the motion has been vacated.

21
22

IT IS SO ORDERED.

23
Dated: December 18, 2012
SUSAN ILLSTON
United States District Judge

24
25
26
27
28
3