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).

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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

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