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

Filing 36

ORDER by Judge Claudia Wilken granting 29 Motion for Leave to File Reply Briefs; granting in part and denying in part 21 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 22 Motion to Strike ; denying 23 Motion to Strike (cwlc3, COURT STAFF) (Filed on 9/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff and
Counterclaim Defendant,

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United States District Court
For the Northern District of California

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v.
CHRISTINE LYNN DEAN and JAMES
ROLAND DEAN, individually and
doing business as TAVERN ON THE
GREENS, and PMGC, INC., an
unknown business entity doing
business as TAVERN ON THE GREENS,
Defendants.

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________________________________/

No. 10-05088 CW
ORDER GRANTING IN
PART PLAINTIFF‟S
MOTION TO DISMISS
DEFENDANTS‟
COUNTERCLAIM,
Docket No. 21, AND
MOTION TO STRIKE
DEFENDANTS‟
AFFIRMATIVE
DEFENSES, Docket
No. 22, DENYING
PLAINTIFF'S
SPECIAL MOTION TO
STRIKE DEFENDANTS'
COUNTERCLAIM,
Docket No. 23, AND
GRANTING
PLAINTIFF'S MOTION
FOR LEAVE TO FILE
REPLY BRIEFS,
Docket No. 29

Plaintiff and Counterclaim Defendant J & J Sports
Productions, Inc. has moved to dismiss for lack of subject matter
jurisdiction and failure to state a claim the counterclaim filed
by Defendants Christine Lynn Dean and James Roland Dean,
individually and doing business as Tavern on the Greens, and PMGC,
Inc., also doing business as Tavern on the Greens.

Docket No. 21.

In addition, Plaintiff has specially moved to strike Defendants‟
counterclaim pursuant to California Code of Civil Procedure
§ 425.16, Docket No. 23, and moved to strike Defendants‟
affirmative defenses, Docket No. 22.

Defendants have opposed the

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motions to dismiss and strike.

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reply to any of the opposition briefs, but later moved for leave

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to file late reply briefs.

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proposed reply briefs.

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leave.

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Plaintiff did not file a timely

The motion for leave included the

Defendants have not opposed the motion for

Having considered all of the parties‟ submissions, the Court

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GRANTS Plaintiff's motion for leave to file reply briefs, and

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GRANTS IN PART Plaintiff‟s motions to dismiss Defendants'

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counterclaim and strike Defendants' affirmative defenses.

United States District Court
For the Northern District of California

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Plaintiff's special motion to strike the counterclaim pursuant to

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section 425.16 is DENIED.
BACKGROUND

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This lawsuit arises from a boxing match between Manny

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Pacquiao and Miguel Cotto, the World Boxing Organization‟s

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Welterweight Championship Fight, which was telecast on November

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14, 2009.

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commercial distribution (closed-circuit) rights to the nationwide

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telecast, including the match, all under-card bouts and fight

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commentary encompassed in the television broadcast of the event

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(the Program).

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Plaintiff has alleged that it was granted the exclusive

On November 10, 2010, Plaintiff filed suit alleging that

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Defendants unlawfully showed the Program at their establishment,

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Tavern on the Greens, in Martinez, California.

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four claims: (1) a violation of 47 U.S.C. § 605, (2) a violation

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of 47 U.S.C. § 553, (3) conversion and (4) a violation of

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California Business and Professions Code § 17200.

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its first two claims, Plaintiff seeks statutory damages in the

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amount of $170,000 against each of the Defendants, in addition to
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Plaintiff brings

With respect to

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reasonable attorneys‟ fees and costs, as permitted by the

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statutes.

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exemplary, damages from Defendants in connection with its claim

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for conversion.

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Plaintiff seeks restitution and disgorgement of Defendants‟

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purportedly ill-gotten gains, as well as injunctive and

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declaratory relief, and attorneys‟ fees.

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Plaintiff seeks compensatory, as well as punitive and

Pursuant to its claim under section 17200,

On April 3, 2011, Defendants filed their Answer to
Plaintiff‟s Complaint.

Defendants Christine Lynn Dean and James

United States District Court
For the Northern District of California

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Roland Dean admitted to owning a business entity known as PMGC,

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Inc., which conducted business as Tavern on the Greens, but

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otherwise denied Plaintiff‟s allegations and stated eleven

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affirmative defenses.

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counterclaim for declaratory relief, seeking an order from this

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Court that sections 605 and 553 violate various provisions of the

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Constitution.

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rights and duties,” and a “declaration of the validity” of

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sections 553 and 605, or, in the alternative, “a declaration of

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the exact terms and meaning of the statutes, the conduct and/or

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acts prohibited by the statute and/or permitted by the statutes,

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so that the Defendants/Counter-claimants or other similar [sic]

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similarly situated in the public can conform their conduct . . .”

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In connection with their counterclaim, Defendants allege the

In addition, Defendants alleged a

Defendants seek a “judicial determination of their

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following facts.

Defendant PMCG, Inc. operates a golf course, on

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which two buildings are located.

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trailer.

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facility caretaker.

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a “Pro Shop” and “Tavern.”

One building is a mobile home

The mobile home is a residential dwelling rented to the
The other building, located nearby, includes
The Tavern is a meeting and waiting
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area for the golf course patrons when the golf course is open to

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the public.

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room and a large screen television.

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lease agreement, the caretaker is permitted private use of the

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Tavern, including the kitchen and television, when the Tavern is

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closed to the public.

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a commercial facility when it is open to the public.

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The Tavern includes a kitchen, a snack bar, a large
As part of the residential

Defendants contend that the Tavern is only

On November 14, 2009, the Tavern on the Greens was closed to
the public, and the facility was used solely by the caretaker as a

United States District Court
For the Northern District of California

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dwelling unit.

The caretaker and Defendants ordered through a

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cable service provider a telecast of the Program and watched it

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with a group of friends.

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sale to any person, and no business activities were conducted.
DISCUSSION

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No products or services were offered for

I. Motion to Strike Affirmative Defenses
Plaintiff moved to strike Defendants‟ first through tenth

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affirmative defenses.

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their first, seventh and tenth affirmative defenses.

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seek leave to amend their second, third, fourth, fifth and sixth

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affirmative defenses, and contend that their eighth, ninth and

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eleventh affirmative defenses are adequately plead.

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In response, Defendants agreed to withdraw
Defendants

Under Federal Rule of Civil Procedure 12(f), the court may

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strike from a pleading an insufficient defense.

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defendant need only “state in short and plain terms its defenses

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to each claim asserted against it.”

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“The key to determining the sufficiency of pleading an affirmative

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defense is whether it gives plaintiff fair notice of the defense.”

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Wyshak v. City Nat‟l Bank, 607 F.2d 824, 827 (9th Cir. 1979).
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However, a

Fed. R. Civ. P. 8(b)(1).

A

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court should strike defenses only if they are clearly

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insufficient.

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Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984).

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See William Z. Salcer, Panfeld, Eldman v. Envicon

Defendants‟ second affirmative defense asserts that Plaintiff

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failed to mitigate its damages.

Because Plaintiff seeks statutory

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damages with respect to its claims under sections 553 and 605, and

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restitution for allegedly ill-gotten gains pursuant to its claim

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under section 17200, the defense of mitigation is not applicable.

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Plaintiff seeks compensatory damages for conversion.

Mitigation

United States District Court
For the Northern District of California

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in the context of Plaintiff‟s claim for conversion of its rights

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to the Program is meaningless.

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Plaintiff could have prevented its damage by notifying the public

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that Comcast and other cable and satellite service providers were

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not authorized to offer the Program does not amount to a defense

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of mitigation.

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stricken without leave to amend.

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Defendants‟ argument that

Accordingly, Defendants‟ mitigation defense is

In their third affirmative defense, Defendants contend that

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the damages Plaintiff allegedly suffered were the result of third

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party actions.

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defense, that Defendants did not damage Plaintiff.

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without leave to amend.

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This is not an affirmative defense, but rather a
It is stricken

Defendants‟ fourth affirmative defense contends that the

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damages Plaintiff allegedly suffered are too speculative to be

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recoverable.

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a defense to Plaintiff's claim of damages.

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leave to amend.

Again, this is not an affirmative defense but merely
It is stricken without

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Defendants‟ fifth affirmative defense states that in the

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event that Plaintiff is found to have suffered damage, Defendants
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are entitled to indemnity from third parties.

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to plead sufficient facts to give Plaintiff notice of the

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identities of these third parties or the nature of their actions.

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Leave to amend, however, is unwarranted because the existence of a

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right to indemnification is not a defense to liability.

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Defendants must bring an action against whomever they claim should

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indemnify them.

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Defendants failed

Defendants‟ sixth affirmative defense asserts estoppel.
Defendants allege that “Plaintiff directed, ordered, approved

United States District Court
For the Northern District of California

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and/or ratified” their conduct, but plead no further details to

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give Plaintiff fair notice of the defense.

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stricken with leave to amend.

The defense is

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In their eighth affirmative defense, Defendants charge that

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Plaintiff‟s “Complaint is unconstitutionally vague as applied to

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these Defendants.”

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read in the context of Defendants‟ entire Answer and Counterclaim,

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makes apparent that Defendants argue that sections 553 and 605 are

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unconstitutionally vague as applied to their actions.

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defense is sufficient as plead.

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v. Nguyen, 2010 WL 3749284, *6 (N.D. Cal.).

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This generally-worded affirmative defense,

Thus, the

G & G Closed Circuit Events, LLC

Defendants‟ ninth affirmative defense alleges that “the

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Complaint is penal in nature in the damages sought by Plaintiff

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disproportionate to any actual harm, if any it has suffered as a

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result of the acts alleged, such that the Defendants have been

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deprived of due process without reasonable notice.”

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defense is incomprehensible and fails to give Plaintiff fair

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notice of the defense.

Leave to amend is granted.

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This asserted

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Finally, Defendants‟ eleventh affirmative defense, broadly

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alleging that sections 605 and section 553 are unconstitutional,

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mirrors the language in Defendants‟ counterclaim.

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the sufficiency of the pleading of the defense is addressed with

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respect to the counterclaim and the defense is not stricken.

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II. Motion to Dismiss Defendants‟ Counterclaim

Accordingly,

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A. Subject Matter Jurisdiction--Standing

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Dismissal is appropriate under Rule 12(b)(1) when the

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district court lacks subject matter jurisdiction over the claim.

United States District Court
For the Northern District of California

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Fed. R. Civ. P. 12(b)(1).

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standing to pursue their counterclaim for declaratory relief.

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Lujan v. Defenders of Wildlife, the Supreme Court explained that

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the irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must
have suffered an injury in fact--an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of--the injury has to be fairly traceable
to the challenged action of the defendant, and not the
result of the independent action of some third party
not before the court. Third, it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.

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Plaintiff contends that Defendants lack

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504 U.S. 555, 560-61 (1992) (internal citations and quotation

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In

marks omitted).

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Defendants have standing to pursue a claim for declaratory

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relief to the extent that they seek an order that the federal

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provisions are unconstitutional as applied to their conduct

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alleged in this case.

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have allegedly been injured by the enforcement of the two

Standing is satisfied because Defendants

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provisions whose constitutionality is challenged, the enforcement

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action is contingent on the validity of the two provisions, and an

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order declaring the provisions are unconstitutional would preclude

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Plaintiff‟s two claims against Defendants.

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Defendants appears to seek declaratory relief not only on
their own behalf, but also on behalf of others similarly situated.
Three criteria must be satisfied when a litigant seeks to assert

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the constitutional right of third parties: “The litigant must have

United States District Court
For the Northern District of California

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suffered an „injury in fact,‟ thus giving him or her a

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„sufficiently concrete interest‟ in the outcome of the issue in

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dispute; the litigant must have a close relation to the third

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party; and there must exist some hindrance to the third party‟s

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ability to protect his or her own interests.”

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Powers v. Ohio, 499

U.S. 400, 410-11 (1991) (internal citations omitted) (citing

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Singleton v. Wulff, 428 U.S. 106, 112-16).
Defendants lack standing to seek a declaration on behalf of

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other members of the public, addressing the constitutional

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validity of applying the provisions to various hypothetical

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situations.

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arising from the various hypothetical scenarios, have not alleged

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Defendants have failed sufficiently to allege injury

their likely future injury resulting from the challenged
applications of the laws, and have failed to plead a close

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relationship with third parties facing the hypothetical situations

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and a hindrance to the third parties‟ ability to protect their own

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interests.
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Thus, Defendants have standing to pursue relief regarding the

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alleged unconstitutionality of the statutes, but they do not have

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standing to pursue relief for third parties.

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B. Failure to State a Claim

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Plaintiff also moves to dismiss Defendants‟ counterclaim

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under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim.

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Dismissal for failure to state a claim is appropriate only

United States District Court
For the Northern District of California

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when the complaint does not give the defendant fair notice of a

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legally cognizable claim and the grounds on which it rests.

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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Bell

A complaint must

In

considering whether the complaint is sufficient to state a claim,

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the court will take all material allegations as true and construe
them in the light most favorable to the plaintiff.

NL Indus.,

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Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

However, this

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principle is inapplicable to legal conclusions; “threadbare

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recitals of the elements of a cause of action, supported by mere

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conclusory statements,” are not taken as true.

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Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555).
Defendants‟ counterclaim alleges,

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Title 46 United States Code Section 605 and Section
553 are unconstitutional and violate the United States
Constitution, as amended, including specifically the
First, Fifth, Sixth, Ninth and Fourteenth Amendments,
in that the statutes are penal in nature, are void for
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vagueness, are overbroad, and violate the fundamentals
of due process, including, but not limited to, the
lack of sufficient notice to Defendants and lack of
guidance for enforcement.

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In turn, Defendants plead eight hypothetical scenarios to
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demonstrate that the statutes are void for vagueness and

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overbroad.

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have alleged two distinct constitutional theories--one challenging

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the statutes' purported vagueness and another challenging the

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statutes' overbreadth.

United States District Court
For the Northern District of California

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Although stated in a single counterclaim, Defendants

"A statute is unconstitutionally vague if persons of 'common
intelligence must necessarily guess at its meaning and differ as

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to its application.'"

Planned Parenthood of Cent. and Northern

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Ariz. v. State of Ariz., 718 F.2d 938, 947 (9th Cir. 1983) (citing

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Connally v. General Construction Co., 269 U.S. 385, 391 (1926)).

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"[W]e insist that laws give the person of ordinary intelligence a

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reasonable opportunity to know what is prohibited, so that he may

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act accordingly . . . A vague law impermissibly delegates basic

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policy matters to policemen, judges, and juries for resolution on

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an ad hoc and subjective basis, with the attendant dangers of

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arbitrary and discriminatory application."

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City of Rockford, 408 U.S. 104, 108 (1972)).

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Id. (citing Grayned v.

Although claims of statutory vagueness usually arise in

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criminal prosecutions, "the Supreme Court has also applied this

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principle in civil proceedings, and in so doing has expressly

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ruled that a criminal penalty need not be involved."

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Fleuti v.

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Rosenberg, 302 F.2d 652 (9th Cir. 1962) (citing Small Company v.

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American Sugar Refining Co., 267 U.S. 233, 239 (1925)).

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regulation may be less precise than other forms of legislation

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because businesses are more apt to plan behavior carefully,

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consult relevant legislation in advance of action, and clarify the

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Economic

uncertainties through inquiry or administrative proceedings.
Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498 (1982).

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“The Court has also expressed greater tolerance of enactments with

United States District Court
For the Northern District of California

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civil penalties because the consequences of imprecision are

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qualitatively less severe.”

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Id. at 499.

"A clear and precise enactment may nevertheless be

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'overbroad' if in its reach it prohibits constitutionally

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protected conduct."

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Grayned, 408 U.S. at 114.

A claim that a

statute is overbroad presents the question of whether the

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challenged law unduly interferences with established
constitutional rights, such as rights protected under the First
Amendment.

See id. at 115.

Defendants' claim that the federal statutes are

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unconstitutionally vague is based on the Constitution's due

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process guarantee under the Fifth Amendment.

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Makowski, 120 F.3d 1078, 1080 (1997).

United States v.

Furthermore, Defendants

allege that the overly vague statutes infringe on their First

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Amendment freedoms.

Defendants challenge the constitutionality of

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section 553, which relates to the unauthorized interception and

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receipt of cable service, and section 605, which concerns the
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unauthorized use of the contents of cable channel transmissions.

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Defendants allege that sections 553 and 605, facially and as

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applied in the present case, are unconstitutionally vague and

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overbroad, threatening liability without fair notice and chilling

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their protected First Amendment activities.

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This claim is

cognizable.
Plaintiff argues that Defendants' counterclaim is

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inadequately plead because it is overly general and implausible.

United States District Court
For the Northern District of California

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Plaintiff complains that Defendants have alleged, in a conclusory

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fashion, violations of the First, Fifth, Sixth, Ninth and

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Fourteenth Amendments.

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on the Fifth and First Amendments, Defendants' counterclaim is

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cognizable.

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As noted above, to the extent it is based

Plaintiff is correct that it is impossible to

ascertain the theories upon which Defendants assert violations of

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the Sixth, Ninth and Fourteenth Amendments.

The Court also

disregards the various hypothetical scenarios that Defendants have

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plead.

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Redondo Beach, 607 F.3d 1178, 1193 (9th Cir. 2010) (Courts “cannot

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invalidate an ordinance for vagueness based on these sorts of

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hypertechnical, imaginative interpretations and hypothetical

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See Comite de Jornaleros de Redondo Beach v. City of

concerns.”).
Accordingly, the Court denies Plaintiff's motion to dismiss

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Defendants' counterclaim to the extent that it is based on the

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First and Fifth Amendments.

However, Plaintiff‟s motion is

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granted to the extent Defendants‟ counterclaim is based on the
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Sixth, Ninth and Fourteenth Amendments.

Within fourteen days of

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this order, Defendants may submit an amended counterclaim,

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rectifying their allegations as to the Sixth, Ninth and Fourteenth

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Amendments.

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III. Special Motion to Strike Defendants‟ Counterclaim

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Finally, Plaintiff specially moves under California Code of
Civil Procedure § 425.16 to strike Defendants‟ counterclaim.

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United States District Court
For the Northern District of California

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Section 425.16(b)(1), which addresses Strategic Lawsuits Against
Public Participation (SLAPP), provides,
A cause of action against a person arising from any
act of that person in furtherance of the person's
right of petition or free speech under the United
States or California Constitution in connection with a
public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff
has established that there is a probability that the
plaintiff will prevail on the claim.
California anti-SLAPP motions are available to litigants

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proceeding in federal court.

Thomas v. Fry‟s Elecs., Inc., 400

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F.3d 1206, 1206 (9th Cir. 2005).

However, Plaintiff's anti-SLAPP

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motion must be denied because it is directed at Defendants'

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counterclaim, which presents a federal constitutional question.

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Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) ("[A]

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federal court can only entertain anti-SLAPP special motions to

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strike in connection with state law claims.").

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See In re Bah, 321

B.R. 41, 45 (9th Cir. 2005).

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CONCLUSION

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Plaintiff's motion for leave to file late reply briefs is
GRANTED.

Plaintiff‟s motion to strike Defendants‟ affirmative
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defenses is GRANTED IN PART.

Defendants‟ second, third, fourth

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and fifth affirmative defenses are stricken without leave to

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amend.

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stricken with leave to amend within fourteen days of the date of

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this order.

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Defendants‟ sixth and ninth affirmative defenses are

Defendants‟ eighth affirmative defense is not

stricken.
Plaintiff's motion to dismiss Defendants' counterclaim is

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DENIED to the extent that it is based on the First and Fifth

United States District Court
For the Northern District of California

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Amendments.

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counterclaim is GRANTED to the extent Defendants‟ counterclaim is

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based on the Sixth, Ninth and Fourteenth Amendments, but

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Defendants may amend their counterclaim within fourteen days of

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this order.

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Plaintiff's motion to dismiss Defendants'

Plaintiff‟s motion to dismiss Defendants‟

counterclaim is GRANTED to the extent that it seeks relief for

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third parties and an explanation of the application of sections
553 and 605 to various hypothetical scenarios.
Plaintiff's special motion to strike Defendants' counterclaim
is DENIED.
On July 12, 2012, the parties shall appear for a further case
management conference and for hearing in regards to any
dispositive motion that the parties may file.
IT IS SO ORDERED.

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Dated: 9/12/2011

CLAUDIA WILKEN
United States District Judge
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