Joe Hand Promotions, Inc. v. Davis

Filing 63

ORDER by Judge Claudia Wilken GRANTING IN PART AND DENYING IN PART 54 MOTION TO DISMISS THIRD-PARTY COMPLAINT. (ndr, COURT STAFF) (Filed on 4/4/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,
Plaintiff,

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No. C 11-6166 CW
ORDER GRANTING IN
PART AND DENYING
IN PART MOTION TO
DISMISS THIRDPARTY COMPLAINT
(Docket No. 54)

v.
BILL DAVIS,
Defendant.
________________________________/

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United States District Court
For the Northern District of California

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BILL DAVIS,
Third-Party Plaintiff,

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v.
DISH NETWORK, LLC,
Third-Party Defendant.
________________________________/

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Third-Party Plaintiff Bill Davis brings this action against

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Third-Party Defendant DISH Network LLC for negligent

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misrepresentation, breach of contract, negligence, and violations

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of California’s Unfair Competition Law (UCL).

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to dismiss the third-party complaint for failure to state a claim.

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After considering the parties’ papers and oral argument, the Court

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GRANTS the motion in part and DENIES it in part.

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DISH Network moves

BACKGROUND
In February 2012, Plaintiff Joe Hand Promotions, Inc. filed a

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first amended complaint (FAC) against Davis for violations of 47

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U.S.C. §§ 553, 605, and the UCL.

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that Davis unlawfully showed a televised fight at the cigar lounge

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Docket No. 8.

The FAC alleges

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he operates, West Coast Cigars, in violation of Joe Hand’s

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exclusive rights to promote the fight.

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Id. ¶¶ 13-41.

Davis subsequently filed a third-party complaint against DISH
Network, the satellite television provider for West Coast Cigars.

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Docket No. 48, Third-Party Compl. ¶ 8.

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DISH Network failed to provide his business with lawful television

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services.

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provided West Coast Cigars with a residential service account --

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rather than a commercial account -- even though, “when the DISH

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United States District Court
For the Northern District of California

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Network L.L.C. personnel came to perform the installation it was

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obvious that this was a business establishment.”

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alleges that, by relying on DISH Network’s implicit promise to

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provide lawful services, he has “been forced to defend himself and

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incur significant damages and liabilities to [Joe Hand].”

Id. ¶ 10.

Specifically, he claims DISH Network

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His complaint asserts that

Id. ¶ 8.

Davis

Id.

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

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taken as true.

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(citing Twombly, 550 U.S. at 555).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

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complaint could be amended to cure the defect requiring dismissal

In determining whether

United States District Court
For the Northern District of California

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“without contradicting any of the allegations of [the] original

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complaint.”

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Cir. 1990).

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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DISCUSSION
Davis has alleged that DISH Network provided his commercial

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business with a residential service subscription in breach of its

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service agreement and its promise to provide lawful commercial

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services.

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signed an agreement to purchase residential services, it conceded

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that it is unable to provide a copy of that agreement.

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Accordingly, the Court must accept Davis’ plausible factual

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allegations as true.

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negligent misrepresentation, breach of contract, and negligence.

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They do not, however, support his claim under the UCL, Cal.

Although DISH Network argued at the hearing that Davis

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Those allegations support his claims for

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Bus. & Prof. Code §§ 17200 et seq., which must be plead with

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particularity under Federal Rule of Civil Procedure 9(b).

See

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This failure distinguishes the present case from Joe Hand Promotions,
Inc. v. Campbell, 2011 WL 3439217, *5-*7 (E.D. Cal.), where the third-party
defendant provided a copy of the operative service agreement and the agreement
“expressly contemplate[d] residential service, not commercial service.”
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Kearns v. Ford Motor Co., 567 F.3d 1120, 1127-28 (9th Cir. 1998).

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Thus, Davis’ UCL claim is dismissed.

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complaint within fourteen days of this order if he can truthfully

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plead specific details regarding when, how, and by whom DISH

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Network’s alleged misrepresentations were communicated to him, as

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well as the nature of the false representations.

He may amend his third-party

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CONCLUSION

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For the reasons set forth above, DISH Network’s motion to

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dismiss (Docket No. 54) is GRANTED in part and DENIED in part.

United States District Court
For the Northern District of California

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Davis’ UCL claim is dismissed with leave to amend; his claims for

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negligent misrepresentation, breach of contract, and negligence

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may proceed.

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IT IS SO ORDERED.

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Dated: 4/4/2013

CLAUDIA WILKEN
United States District Judge

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