Joe Hand Promotions, Inc. v. Dugout, LLC, The
Filing
22
ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings by Judge Christine M. Arguello on 9/23/13. This action is remanded to the District Court, Weld County, Colorado.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-00821-CMA-CBS
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
THE DUGOUT, LLC,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS AND REMANDING CASE
This matter is before the Court on Defendant The Dugout, LLC’s Motion for
Judgment on the Pleadings (Doc. # 13), filed on April 23, 2013. For the reasons
discussed below, the Court dismisses the two federal claims as time-barred, and
remands the remaining conversion claim.
I. BACKGROUND
In this action brought under 47 U.S.C § 553, 47 U.S.C. § 605, and the state law
of conversion, Plaintiff Joe Hand Productions, Inc. alleges that Defendant showed
Ultimate Fighting Championship 130: Quinton Jackson v. Matt Hammill to its customers
without authorization on May 28, 2011. (Doc. # 4 at 1-4.) Plaintiff filed the case in state
court on March 28, 2013. (Doc. # 1 at 1.) Defendant removed the case to federal court.
(Id.)
In the instant motion, Defendant moves for judgment on the pleadings by
asserting that the applicable statute of limitations bars Plaintiff’s claims. (Doc. #13 at 2.)
Plaintiff responded on May 14, 2013 (Doc. # 18 at 1), to which Defendant replied on
May 29, 2013 (Doc. # 21 at 1).
II. STANDARD OF REVIEW
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is governed by the same standard of review applicable to a motion to dismiss
under Rule 12(b)(6). Nelson v. State Farm. Mut. Auto. Ins. Co., 419 F.3d 1117, 1119
(10th Cir. 2005). A party may move to dismiss a claim for relief in any pleading for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
A claim is subject to dismissal for failure to state a claim for relief if the allegations in
the complaint show that relief is barred by the applicable statute of limitations. Jones v.
Bock, 549 U.S. 199, 215 (2007). The defense of statute of limitations may be resolved
upon a motion to dismiss where the complaint shows on its face that the action has not
been instituted within the statutory period. See Aldrich v. McCulloch Properties, Inc.,
627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (“While the statute of limitations is an
affirmative defense, when the dates given in the complaint make clear that the right
sued upon has been extinguished, the plaintiff has the burden of establishing a factual
basis for tolling the statute.”)
The Court accepts all well-pleaded allegations in the complaint as true and views
them in the light most favorable to the non-moving party. Nelson, 419 F.3d at 1119.
Dismissal under Rule 12(b)(6) should be granted only when it appears that the non-
2
moving party can prove no set of acts in support of the claims that would entitle the
plaintiff to relief. Id.
III. DISCUSSION
Defendant moves to dismiss Plaintiff’s federal claims, under 47 U.S.C. §§ 553
and 605, as time-barred. Additionally, Defendant moves to dismiss the state-law claim
of conversion.
A.
FEDERAL CLAIMS
Under 47 U.S.C. §§ 553 and 605, an aggrieved party may initiate a lawsuit
and collect civil penalties for the unauthorized reception or interception of any
communication from a cable operator and the unauthorized publication or use of an
interstate communication received by wire. Because neither provision has a statute of
limitations, the determinative issue is whether to borrow the statute of limitations from
state or federal law.
When there is no statute of limitation, courts do not “ordinarily assume that
Congress intended that there be no time limit on actions.” DelCostello v. Int’l Bd. of
Teamsters, 462 U.S. 151, 158 (1983). Rather, courts look to other sources to find the
appropriate time limit on causes of action. Id. The “lender of first resort” for a statute
of limitations is the “most closely analogous” state statute. North Star Steel Co., v.
Thomas, 515 U.S. 29, 33 (1995) (internal quotation and citation omitted).
The Court agrees with Defendant that the Colorado Cable Piracy Statute, Colo.
Rev. Stat. § 18-4-702(1)(a), which prohibits civil theft of cable service, is closely
analogous to both 47 U.S.C. § 553(a)(1), which prohibits the interception of any
3
communication service offered over a cable system without authorization, and 47
U.S.C. § 605(a), which prohibits the reception and publication of an interstate
communication by wire without authorization. Although each provision uses slightly
different language, the three provisions prohibit similar behavior. All three statutory
provisions permit the injured party to file a lawsuit against a party engaging in civil theft
and permit the plaintiff to seek similar remedies. Compare Colo. Rev. Stat. §§ 18-4702(1)(a) and (2)(a)-(b), with 47 U.S.C. § 553(c) and U.S.C § 605(e)(3). Finally, all
three statutes authorize a judge to increase the damages awarded to the injured party
if the act was committed willfully. Compare Colo. Rev. Stat. § 18-4-702(3)(a), with 47
U.S.C. § 553(c)(3)(B), and 47 U.S.C § 605(e)(3)(C)(ii). Thus, the Colorado Cable
Piracy Statute is closely analogous to the federal statutory provisions at issue in this
case and the appropriate source of the statute of limitations for Section 553 and Section
605 causes of action. 1
While statutes of limitations from analogous state statutes are the primary
source, DelCostello, 462 U.S. at 161, a court may look to a federal statute of limitations
when the federal law provides a closer analogy than the state law. Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 356 (1991). Importantly, using a
federal statute of limitations is “a closely circumscribed exception.” Id. at 356. Plaintiff
asserts that the federal Copyright Act is the appropriate source of the statute of
1
Plaintiff argues that the Colorado Cable Piracy Statute is not the most closely analogous statute
because it contains a provision exempting satellite dishes. See Colo. Rev. Stat. § 18-4-701(3). The
object is not to find an identical state statute from which to borrow a statute of limitations when the federal
statute is silent. Rather, courts look for the “most closely analogous” state statute. See North Star, 515
U.S. at 33.
4
limitations for Section 553 and 605 causes of action. (Doc. #18 at 5-6.) However, in all
but one of the cases Plaintiff cites, the courts borrowed the Copyright Act’s three-year
statute of limitations for Section 553 and 605 causes of action because the states did
not have a cable piracy statute. 2 With that one exception, courts “have applied the
federal limitations period under the Copyright Act to [Section 553 and 605] claims when
the only state law from which to borrow a limitations was a general conversion law.”
Kingvision Pay-Per-View, Corp., Ltd. v. 898 Belmont, Inc., 366 F.3d 217, 223 (3d Cir.
2004). This is because state cable piracy statutes often provide a closer analogue
to Sections 553 and 605 than the Copyright Act. See Lampf, 501 U.S. at 356.
Furthermore, this case does not warrant the narrowly-prescribed exception of
applying a federal limitations period because the state limitations period of the Colorado
Cable Piracy Statute does not frustrate the purpose of the federal law. See id. at 356.
The purpose of Title 47 is to “regulate interstate and foreign commerce in
communication by wire and radio so as to make available . . . a rapid efficient . . .
communication service with adequate facilities at reasonable charges . . . .” Kingvision,
366 F.3d at 225 (internal quotations and citation omitted). One year is sufficient for a
plaintiff to bring suit under these statutory provisions to deter theft and keep costs down.
See id. (two-year statute of limitations does not impede the purpose of Title 47).
Therefore, the Court declines to apply the federal limitations period exception.
2
See, e.g., Nat’l Satellite Sports, Inc. v. Time Warner Entm’t Co., L.P., 255 F. Supp. 2d 307 (S.D.N.Y.
2003) (applying Copyright Act’s statute of limitation rather than limitation period from New York’s cable
theft statute); Time Warner Cable Nat’l Div. v. Bubacz, 198 F. Supp. 2d 800 (N.D.W. Va. 2001)(no cable
theft statute); Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc., 98 F. Supp. 2d 958 (N.D. Ill.
2000)(no cable theft statute); but see Joe Hand Promotions, Inc. v. Duede, 2010 WL 1782260 (C.D. Ill.
2010)(questioning the application of the Copyright Act’s statute of limitations because Illinois
subsequently enacted a cable theft statute that is closely analogous to Section 553 and 605 actions).
5
Accordingly, the Court finds the statute of limitation applicable to 47 U.S.C.
§§ 553 and 605 causes of action is the one year statute of limitation applicable under
the Colorado Cable Piracy Statute. 3 Defendant allegedly broadcast Ultimate Fighting
Championship 130 to its customers on May 28, 2011, and Plaintiff filed the instant case
in state court on March 28, 2013. (Doc. # 4 at 1.) Because more than one year elapsed
between these two events, Plaintiff’s Section 553 and 605 claims are time-barred.
B.
STATE-LAW CLAIM OF CONVERSION
Defendant asks for judgment in its favor on the state-law conversion claim.
However, Defendant is not entitled to such a remedy at this stage. Instead, the Court
must decide whether to exercise its discretion to maintain jurisdiction over the
conversion claim. The Court has discretion to dismiss or remand the cause upon
dismissal of all claims over which it has original jurisdiction. Cf. Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343 (1988) (district courts have discretion to dismiss or remand
cases to state court after federal claims have been dismissed and only pendant state
law claims remain), superseded by statute, 28 U.S.C. 1367(c)(3) (enacted 1990) (“[t]he
district courts may decline to exercise supplemental jurisdiction over a claim if the
district court has dismissed all claims over which it has original jurisdiction”). Because
3
The Court rejects Plaintiff’s argument that it should apply Colorado’s two-year statute of limitations
for “all actions upon liability created by a federal statute where no period of limitation is provided in said
statute.” Colo. Rev. Stat. § 13-80-102(1)(g). The task of the Court is to use the statute of limitations from
the most closely analogous state law, see North Star, 515 U.S. at 33, not to apply the statute’s general
statute of limitations for federal claims.
6
all of the federal claims have been dismissed, the Court declines to exercise
supplemental jurisdiction over the remaining state law claim. 4
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion for
Judgment on the Pleadings (Doc. # 13) is GRANTED IN PART and DENIED IN PART.
Specifically, it is
ORDERED that claims one and two are DISMISSED. It is
FURTHER ORDERED that this action is REMANDED to the District Court, Weld
County, Colorado, for further proceedings related to Plaintiff’s conversion claim.
DATED: September 23, 2013.
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
4
Although neither party argued that the Court should exercise jurisdiction over the conversion claim
based on diversity jurisdiction, the Court notes that Defendant also removed the action on this basis.
(Doc. # 1 at 1). For a court to exercise diversity jurisdiction, there must be diversity of citizenship and
an amount in controversy that exceeds $75,000.00. 28 U.S.C. § 1332(a). However, neither Plaintiff’s
Complaint nor the Notice of Removal state the dollar amount associated with the conversion claim. The
Civil Cover Sheet lists the total amount in controversy as $150,000.00, which is the dollar amount equal
to the amount Plaintiff listed for the time-barred Section 553 and Section 605 claims. (Doc. #2 at 2-3).
Accordingly, this Court lacks diversity jurisdiction because there is no showing that the amount in
controversy for the conversion claim exceeds the statutory requirement. See 28 U.S.C. § 1332(a).
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?