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

Filing 122

ORDER granting with prejudice Counterdefendant J & J Sports Productions, Inc.'s 109 Motion to Dismiss Third Amended Counterclaim. Signed by Judge Cynthia Bashant on 4/4/2016. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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J&J SPORTS PRODUCTIONS,
INC.,

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Case No. 13-cv-2924-BAS-KSC
ORDER GRANTING PLAINTIFF
AND COUNTER-DEFENDANT’S
MOTION TO DISMISS
[ECF No. 109]

Plaintiff,

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v.

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SALLY AND HENRY’S
DOGHOUSE BAR & GRILL LLC,

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Defendant.

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SALLY AND HENRY’S
DOGHOUSE BAR & GRILL LLC,

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Counterclaimant,

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v.

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J&J SPORTS PRODUCTIONS,
INC.,

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Counter-Defendant.

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I.

BACKGROUND
J&J Sports Productions, Inc. (“J&J Sports”) brings this case against Sally and

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Henry’s Doghouse, LLC, d/b/a Sally and Henry’s Doghouse Bar and Grill

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(“Doghouse”), claiming Doghouse displayed the “Manny Pacquiao v. Juan Manuel
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Marquez IV” welterweight fight program (“the fight”) without authorization at its

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Bar and Grill on December 8, 2012. J&J Sports brings four causes of action against

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Doghouse for: (1) a violation of 47 U.S.C. §605 (unauthorized publication or use of

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communications), (2) a violation of 47 U.S.C. §553 (unauthorized reception of cable

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services), (3) conversion, and (4) a violation of California Business & Professions

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Code §17200 et seq.

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Doghouse answered denying most of the allegations in the Complaint and, in

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addition, filed several affirmative defenses. In the second affirmative defense,

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Doghouse alleges that broadcasting the fight was authorized by Directv, “an

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authorized channel of transmission and reception under Section 605.” (ECF No. 108

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at 11-12.) In the seventh affirmative defense, Doghouse alleges that “Section 605 is

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unconstitutionally vague and ambiguous” because “[i]ts plain language does not

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invite or allow for the phrase ‘authorized channel of transmission or reception’ to be

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defined, limited or restricted by the undisclosed terms of a private contract between

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private parties.” (Id. at 14) Additionally, in the seventh affirmative defense,

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Doghouse alleges that “[i]nterpreting Section 605 to allow for liability where the

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signal was received from an authorized channel of transmission or reception and yet

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cause a violation of section 605 and impose liability would make it impossible for a

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reasonable person to know when and under what circumstances the statute might be

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violated and when it would not.” (Id. at 14-15.) “Accordingly, Section 605 should

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provide a safe harbor to [Doghouse] as the intended addressee for its reception of

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the encrypted signal Program through Directv, an authorized channel of

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transmission or reception, or Section 605 be declared unconstitutionally void for

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vagueness.” (Id. at 15.)

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Doghouse has also filed a Third Amended Counter-claim (“TACC”) for one

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count of declarative relief. (ECF No. 108.) In the one count, Doghouse, in essence,

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asks this Court to declare that the J&J Sports’ complaint is unfounded (TACC ¶30)

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and that sections 605 and 553 are unconstitutional as applied to Doghouse. (TACC
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¶11, 30). Furthermore, Doghouse asks this court to find that a “safe harbor”

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provision in section 553 “exempt[s] a subscriber from liability under Section [sic]

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for display of a program received from Directv’s multi-step transmission process . . .

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regardless of the license rights conveyed to Directv.” (TACC ¶26) Finally,

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Doghouse contends that “only one of the Sections [605 and 553] can be applicable

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to Directv’s multi-step transmission process as applied to the Doghouse, and [J&J

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Sports] contends [in its complaint] that both sections may be applicable.” (TACC

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¶32.)
The Court finds this motion suitable for determination on the papers

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submitted and without oral argument. See Civ. L.R. 7.1(d)(1). Because the Counter-

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claim for Declarative Relief is duplicative of the pleadings already filed by

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Doghouse (answer and affirmative defenses), the Court GRANTS J&J Sports’

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Motion to Dismiss (ECF No. 109).

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II.

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DISCUSSION
As a preliminary matter, Doghouse has failed to comply with Civil Local

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Rule 15.1(c) which requires that “[a]ny amended pleading filed after the granting of

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a motion to dismiss or motion to strike with leave to amend, must be accompanied

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by a version of that pleading that shows – through redlining, underlining, strikeouts,

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or other similarly effective typographic methods – how that pleading differs from

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the previously dismissed pleading.” Civ. L. R. 15.1(c). Nonetheless, the Court will

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address the underlying Motion to Dismiss.

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As stated in the last Order dismissing Doghouse’s Second Amended Counter-

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claim (ECF No. 104), “[f]ederal courts do not have a duty to grant declaratory

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judgment; therefore, it is within a district court’s discretion to dismiss an action for

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declaratory judgment.” Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 533

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(9th Cir. 2008) (citation omitted); McGraw-Edison Co. v. Preformed Line Products

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Co., 362 F.2d 339, 342 (9th Cir. 1966) (“[T]he question of whether a district court

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shall exercise jurisdiction in a declaratory judgment action rests in the sound
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discretion of that court.”) The purpose of a declaratory judgment action is to allow

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an individual to request an early adjudication without having to wait until his

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adversary decides to bring suit. Id. Declaratory relief may be refused “where it is

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being sought merely to determine issues which are involved in a case already

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pending and can be properly disposed of therein.” Id. at 343. The question is

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whether declaratory relief would serve some useful purpose in clarifying and

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settling relations between the parties. Id. Avoiding multiplicity of litigation is

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always an important factor for the court to consider. Id.
Using a declaratory relief cause of action “to anticipate an affirmative defense

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is not ordinarily proper.” Veoh Networks, Inc. v. UMG Recordings, Inc., 522

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F.Supp.2d 1265, 1271 (S.D. Cal. 2007). A court may dismiss counterclaims if they

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are just mirror images of the claims in the complaint or redundant of the affirmative

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defenses. Apple Inc. v. Samsung Elec. Co., 11-cv-1846-LHK, 2011 WL 4948567, at

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*9-10 (N.D. Cal. Oct. 18, 2011).
Although the Federal Rules of Civil Procedure state leave to amend “shall be

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freely given when justice so requires,” repeated failure to cure deficiencies by

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amendments previously allowed and futility of amendment are grounds that support

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denying leave to amend. Leadsinger, 512 F.3d at 532 (quoting Fed. R. Civ. P. and

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citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

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This court exercises its discretion and dismisses Doghouse’s action for

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declaratory judgment. The TACC merely asks this Court to determine issues already

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raised in J&J Sports’ complaint and Doghouse’s affirmative defenses. Hence, ruling

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on the declaratory relief complaint would not serve any additional purpose in

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clarifying or settling relations between the parties. Because further amendment

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would be futile and because this is Doghouse’s fourth attempt to allege an adequate

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counter-claim, the TACC is dismissed without leave to amend.

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III.

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CONCLUSION
For the foregoing reasons, the Court GRANTS WITH PREJUDICE J&J
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Sports’ Motion to Dismiss the TACC (ECF No. 109).
IT IS SO ORDERED.

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DATED: April 4, 2016

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