Joe Hand Promotions, Inc. v. C.J.'s Sports Bar, LLP et al

Filing 32

ORDER granted in part 5 Motion to Dismiss Count I and Count II of the complaint 3 are dismissed with prejudice.Count III survives. ORDERED that this matter is remanded to the District Court for the County of El Paso, Colorado, where it was filed as Case No. 13-cv-30964 by Judge Philip A. Brimmer on 9/16/2014.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-02402-PAB-KLM
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
C.J.’S SPORTS BAR, LLP, and
LARRY DEANE COWDEN and DOROTHY GAIL COWDEN, as General Partners,
Defendants.

ORDER

This matter is before the Court on the Notice of Motion and Motion to Dismiss
[Docket No. 5] filed by defendants C.J.’s Sports Bar, LLP (“C.J.’s”), Larry Deane
Cowden, and Dorothy Gail Cowden. The Court’s jurisdiction is based on 28 U.S.C.
§ 1331.
I. BACKGROUND
Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) sets forth the following factual
allegations in its complaint. Docket No. 3. The Cowdens are the general partners of
C.J.’s. Id. at 4, ¶ 4. Joe Hand is a commercial distributor of sports programming. Id. at
5, ¶ 8. Joe Hand spends substantial sums of money on marketing, advertising,
promoting, administering, and transmitting sports programming to the broadcasting
entities. Id.

Joe Hand owns the exclusive national television distribution rights to the
“Ultimate Fighting Championship 134: Anderson Silva vs. Yushin Okami,” which took
place on August 27, 2011. Id. at 5, ¶ 6. Defendants showed the Silva vs. Okami fight
in real time at C.J.’s, despite their knowledge that they were unauthorized to do so. Id.
at 5, ¶ 9.
On August 16, 2013, Joe Hand filed a complaint against defendants in the
District Court for the County of El Paso, Colorado, asserting violations of 47 U.S.C.
§§ 553 and 605 and state law conversion. Docket No. 3 at 4-6. Plaintiff seeks
compensatory and statutory damages, attorney’s fees, and costs. Id. at 6-7. On
September 4, 2013, defendants removed the matter to this Court. Docket No. 1. On
September 6, 2013, defendants filed the instant motion to dismiss. Docket No. 5.
II. STANDARD OF REVIEW
The Court’s function on a Rule 12(b)(6) motion for failure to state a claim upon
which relief can be granted is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is sufficient to
plausibly state a claim. Fed. R. Civ. P. 12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court “must accept all
the well-pleaded allegations of the complaint as true and must construe them in the
light most favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215
(10th Cir. 2007) (quotation marks and citation omitted).
The “plausibility” standard requires that relief must plausibly follow from the facts
alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d

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1282, 1286 (10th Cir. 2008). However, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged–but it has not shown–that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted).
III. ANALYSIS
A. Federal Claims
Defendants argue that plaintiff’s claims are time barred by the applicable oneyear statute of limitations. Docket No. 5.
Section 553 of Title 47 prohibits the “[u]nauthorized interception or receipt” of
“any communications service offered over a cable system.” 47 U.S.C. § 553(a)(1).
Section 605 of Title 47 prohibits the unauthorized publication of “any interstate or
foreign communication by wire or radio.” 47 U.S.C. § 605(a). Neither statute contains a
statute of limitations. When a federal statute does not supply a limitations period,
courts “generally ‘borrow’ the most closely analogous state limitations period.” Graham
County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409,
414 (2005). Under a “closely circumscribed . . . [and] narrow exception to the general
rule,” courts will look instead to analogous federal law when the state limitations period
would “frustrate or interfere with the implementation of national policies” or “be at odds
with the purpose or operation of federal substantive law.” North Star Steel Co. v.
Thomas, 515 U.S. 29, 33-34 (1995) (citations and quotation marks omitted); see also
Barnett v. United Air Lines, Inc., 738 F.2d 358, 363 (10th Cir. 1984) (“if another relevant

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federal statute exists that clearly reflects the interests Congress intended to protect
under the federal statute in question, we must apply it”) (emphasis in original).
In deciding which limitations period to borrow, courts look for a state statute that
is “actually designed to accommodate a balance of interests very similar” to that struck
by the federal law at issue. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S.
151, 169 (1983). Factors relevant to this determination include “commonality of
purpose and similarity of elements.” Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350, 358 (1991).
Defendants contend that the most closely analogous law is the Colorado Cable
Piracy Statute, Colo. Rev. Stat. § 18-4-702, which prohibits theft of cable service. They
further contend that the applicable limitations period is one year as provided by Colo.
Rev. Stat. § 13-80-103(1)(d), which states that “[a]ll actions for any penalty or forfeiture
of any penal statutes” shall be “commenced within one year after the cause of action
accrues,” regardless “of the theory upon which suit is brought, or against whom suit is
brought.”
1. Colorado Cable Piracy Act
Plaintiff claims that Colo. Rev. Stat. § 18-4-702 is not analogous to 47 U.S.C.
§ 605 because the former applies only to the theft of cable service while the latter
applies only to the theft of satellite communications.1 Docket No. 8 at 3-4. Plaintiff
“acknowledges that the Court need not find an identical state statute,” but argues that
“a statute that explicitly excepts certain behavior may [not] be considered sufficiently
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Plaintiff does not dispute that the Cable Piracy Statute is analogous to 47 U.S.C.
§ 553(a)(1). Docket No. 8 at 4.
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analogous to a statute that permits that behavior.” Docket No. 18 at 2-3 (emphasis in
original).
Colo. Rev. Stat. § 18-4-701(3) states that this “section does not apply to satellite
dishes.” Courts are split as to whether § 605 applies to communications distributed
over a cable network, in addition to communications transmitted via radio or satellite.
Compare Charter Communications Entertainment I, DST v. Burdulis, 460 F.3d 168, 172
(1st Cir. 2006) (“We, however, believe that the statutory text does make clear that § 605
is not to apply to signals delivered by wire over a cable network.”); TKR Cable Co. v.
Cable City Corp., 267 F.3d 196, 197 (3d Cir. 2001) (holding that a “cable television
descrambler does not facilitate the interception of ‘communications by radio’ and
therefore the statutory damages available under § 605 do not apply here”); and United
States v. Norris, 88 F.3d at 462, 469 (7th Cir. 1996) (“we find that cable television
programming transmitted over a cable network is not a ‘radio communication’ as
defined in § 153(b), and thus its unlawful interception must be prosecuted under
§ 553(a) and not § 605”) with Int’l Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir.
1996) (“[i]n light of this legislative history and the uniform pre-1984 judicial interpretation
of § 605 as applicable to the distribution of descramblers for the interception of cable
television, we conclude that § 605 continues to apply to such distribution”).
Regardless of whether § 605 is limited to satellite transmissions, plaintiff’s
argument disregards the relevant similarities between these statutes. First, the two
laws prohibit similar conduct, namely, the theft and unauthorized distribution of certain
programming. In this regard, both statutes have a commonality of purpose. See

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Lampf, 501 U.S. at 357. Second, both laws have a similar remedial scheme in that they
permit private individuals to file suit and obtain injunctive relief, damages, attorney’s
fees, and costs. Compare Colo. Rev. Stat. § 18-4-702(1)(a), (2)-(5) with 47 U.S.C. §
605(e). Third, both statutes permit the court to increase the damages awarded in the
case of a willful violation committed for the purpose of personal financial gain.
Compare Colo. Rev. Stat. § 18-4-702(3)(a) with 47 U.S.C. § 605(e)(2). The closeness
of these remedial schemes additionally demonstrates that the laws share a
“commonality of purpose and similarity of elements.” Lampf, 501 U.S. at 357. 2
The cases that plaintiff cites are inapposite because the courts in those cases
were not considering statutes akin to the Cable Piracy Act, but were instead attempting
to analogize 47 U.S.C. §§ 553 and 607 to state laws pertaining to theft or conversion.
See Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc., 98 F. Supp. 2d 958, 964
(N.D. Ill. 2000) (finding that the Copyright Act “affords a ‘closer fit’” to 47 U.S.C. §§ 553
and 605 than the common law tort of conversion); Time Warner Cable Nat’l Div. v.
Bubacz, 198 F. Supp. 2d 800, 804 (N.D. W.Va. 2001) (“A number of federal courts
have considered the precise issue raised by the parties in their cross motions for
summary judgment–whether a state’s statute of limitations for conversion, or the three
year statute of limitations set forth in the Copyright Act, should apply to claims for the
unauthorized interception and distribution of cable services.”); Nat’l Satellite Sports, Inc.

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There is no support for plaintiff’s contention that the Colorado Cable Piracy Act
is “at odds with the purpose of 47 U.S.C. § 605” because one statute “perm its” conduct
that the other one prohibits: neither statute permits piracy; rather, the statutes impose a
closely analogous remedial scheme with respect to piracy of different types of media.
See Docket No. 18 at 2-3.
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v. Time Warner Entertainment Co., L.P., 255 F. Supp. 2d 307, 313-14 (S.D.N.Y. 2003)
(borrowing limitations period from Copyright Act as opposed to borrowing from a New
York law that criminalized theft of cable services, but did not allow for civil actions).
These cases do not undermine the conclusion that the Colorado Cable Piracy Act is
analogous to 47 U.S.C. §§ 553 and 605. See Kingvision Pay-Per-View, Corp., Ltd. v.
898 Belmont, Inc., 366 F.3d 217, 223 (3d Cir. 2004) (“[F]ederal district courts have
applied the federal limitations period under the Copyright Act to FCA claims when the
only state law from which to borrow a limitations period was a general conversion law.
We agree with the District Court that ‘these cases do not predict the proper outcom e of
the case at bar involving a state statute narrowly crafted to deter cable piracy.’”)
(citation omitted).
Plaintiff argues that the Court should apply the limitations period from the
Copyright Act in the interest of “nationwide uniformity.” Docket No. 8 at 6 (quoting Nat’l
Satellite Sports, 255 F. Supp. 2d at 313-14). As the court explained in Kingvision PayPer-View, Corp., 366 F.3d at 222, neither “a general preference for uniformity” nor “the
desire to unify the limitations periods of federal laws with similar purposes” is a
sufficient reason to borrow a federal limitations period. Rather, courts should
characterize federal claims uniformly so they may be analogized to the same types of
state laws, even if this results in the application of different statutes of limitations in
different states. See id.; see also Bowdry v. United Air Lines, Inc., 956 F.2d 999, 1005
(10th Cir. 1992) (rejecting argument that plaintiffs will be harmed if subject to varying
state statutes of limitations because this argument leaves “hardly [any] occasion to

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adopt the state statute of limitations. Every time a state rule is adopted instead of a
federal rule, an entity operating in various states will likely be subject to varying state
statutes of limitations.”).
For example, in Wilson v. Garcia, 471 U.S. 261, 276 (1985) (abrogated by
statute on other grounds as stated in Merrigan v. Affiliated Bankshares of Colo., Inc.,
775 F. Supp. 1408, 1411 (D. Colo. 1991)), the court held that claim s under 42 U.S.C.
§ 1983 are subject to each state’s limitations period for personal injury actions.
Although this results in the application of different limitations periods, the court held that
“uniformity within each State is entirely consistent with the borrowing principle contained
in § 1988.” Id. at 275.
Given the similarities in purpose and remedial scheme between the Colorado
Cable Piracy Act and 47 U.S.C. § 605, the Court finds that there is no basis for applying
the “closely circumscribed exception” and borrowing a limitations period from federal
law. See Lampf, 501 U.S. at 356.
2. Applicable Limitations Period
The Colorado Cable Piracy Act does not contain a statute of limitations for civil
actions. Plaintiff contends that the Court should apply Colorado’s two-year limitations
period for “[a]ll actions upon liability created by a federal statute where no period of
limitation is provided in said federal statute.” Docket No. 8 at 6-7; Colo. Rev. Stat. § 1380-102(1)(g). Defendants contend that the Court should apply the State’s one-year
limitations period for “[a]ll actions for any penalty or forfeiture of any penal statutes.”
Docket No. 5 at 9-10; Colo. Rev. Stat. § 13-80-103(1)(d).

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The parties’ dispute concerns which limitations period is more specifically linked
to the violations alleged in this case. Since the Colorado Cable Piracy Act is a penal
statute, the Court agrees with defendants that § 13-80-103(1)(d) sets forth the
applicable limitations period.
Plaintiff contends that defendants’ argument would prevail “if liability herein were
predicated upon a violation of” Colo. Rev. Stat. § 18-4-701, but, “as Plaintiff relies upon
the federal statutes, Defendants’ argument is misplaced.” Docket No. 8 at 7 (emphasis
in original). Plaintiff’s argument, however, disregards the mechanism of the borrowing
rule, which requires courts to borrow the “local time limitation most analogous to the
case at hand.” Lampf, 501 U.S. at 355. The most closely analogous limitations period
is the period that the state would apply in considering the alleged violation of the
analogous state law. See Bowdry, 956 F.2d at 1006 (applying catch-all limitations
period because it was unable to find an “appropriate analogy” in state law); Joe Hand
Promotions, Inc. v. Dugout, LLC, No. 13-cv-00821-CMA-CBS, 2013 WL 5323403, at *3
n.3 (D. Colo. Sept. 23, 2013) (“The task of the Court is to use the statute of limitations
from the most closely analogous state law, not to apply the statute’s general statute of
limitations for federal claims.”) (citation omitted). Plaintiff’s suggested approach would
undermine the purpose of the borrowing rule by requiring courts to engage in a lengthy
search for a similar state law, only to ignore that law’s limitations period and apply a
catch-all provision with no substantive connection to the claims at issue. Accordingly,
the Court finds that plaintiff’s federal claims are subject to a one-year statute of
limitations.

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The parties do not dispute that plaintiff’s federal claims accrued on August 27,
2011, when defendants allegedly aired the protected programming. Docket No. 5 at 11;
Docket No. 8 at 7. Plaintiff filed this case on August 16, 2013. Docket No. 1-1 at 3. As
plaintiff filed this case more than one year after its federal claims accrued, its federal
claims are time barred.
B. State Law Claim
Plaintiff asserts a supplemental state law claim for conversion.3 Plaintiff argues
that it would be unfair to decline supplemental jurisdiction over its conversion claim
because plaintiff originally brought this case in state court and defendants removed it.
Docket No. 8 at 12.

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In its notice of removal, defendants alleged that the Court has jurisdiction
pursuant to 28 U.S.C. § 1332. Docket No. 1 at 2, ¶¶ 4-5. Def endants alleged that
C.J.’s, a limited liability partnership, is a citizen of Colorado because it “is a Colorado
business entity.” Id. at 2, ¶ 5. According to the complaint, the Cowdens are the general
partners of C.J.’s. Docket No. 1-1 at 4, ¶ 4. A limited partnership, unlike a corporation,
is deemed to be a citizen of all of the states of which its members are citizens. See
Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 569 (2004) (recognizing the
“accepted rule” that a partnership “is a citizen of each State or foreign country of which
any of its partners is a citizen”). Since defendants do not state that they are C.J.’s only
partners, or set forth the citizenship of any other partners, their allegations are
insufficient to establish jurisdiction under § 1332. See Zambelli Fireworks Mfg. Co., Inc.
v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (citizenship of all members relevant to
determining LLC’s citizenship regardless of certain members’ passive management
role); Allegheny Cas. Co. v. United Constr. Co. of Cent. Fla., Inc., 2013 WL 1344588, at
*1 (M.D. Fla. Feb. 6, 2013) (recommending dismissal where plaintiff pled identity of
LLC’s managing member but “did not show that [he] was the only member” of
defendant LLC), adopted by 2013 WL 1344844 (M.D. Fla. Apr. 2, 2013); see also
Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir. 2009) (plaintiff must “distinctly
and affirmatively” allege citizenship of each of limited partnership’s general and limited
partners to establish diversity jurisdiction) (emphasis in original). Plaintiff does not
allege that the Court has diversity jurisdiction. See Docket No. 8 at 11-13. Thus, the
jurisdictional basis for plaintiff’s conversion claim is supplemental jurisdiction. 28 U.S.C.
§ 1367.
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In the Tenth Circuit, when “the district court has dismissed all claims over which
it has original jurisdiction,” 28 U.S.C. § 1367(c)(3), courts must dismiss pendent state
law claims without prejudice “‘absent compelling reasons to the contrary.’” Brooks v.
Gaenzle, 614 F.3d 1213, 1230 (10th Cir. 2010) (quoting Ball v. Renner, 54 F.3d 664,
669 (10th Cir. 1995) (reversing the district court’s grant of summary judgment on state
law claims)). “Compelling reasons to the contrary” may include considerations of
judicial economy, convenience, fairness, and comity. Carnegie-Mellon University v.
Cohill, 484 U.S. 343, 350 (1988).
In this case, remanding plaintiff’s state law claim will not result in a waste of
judicial resources because the case has not progressed beyond its early stages. Apart
from entering a scheduling order, Docket No. 20, the Court has not issued any orders
and has not addressed the substantive merit of plaintiff’s state law claim. Convenience
to the parties does not appear to be at issue g iven that plaintiff initially filed its claims in
state court. Moreover, plaintiff’s conversion claim raises a novel issue of state law.
See Docket No. 8 at 8 (“The issue of whether a piracy claim may be the subject of a
conversion claim has not yet been adjudicated in Colorado.”). Given the existence of a
novel legal issue and plaintiff’s original choice of a state forum, there is no support for
plaintiff’s assertion that remand would be unfair. Since there are no compelling reasons
for this Court to retain jurisdiction over plaintiff’s state law claim, that claim will be
remanded.
IV. CONCLUSION
In light of the foregoing, it is

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ORDERED that the motion to dismiss [Docket No. 5] filed by defendants C.J.’s
Sports Bar, LLP, Larry Deane Cowden, and Dorothy Gail Cowden is GRANTED in part.
Count I and Count II of the complaint [Docket No. 3] are dismissed with prejudice.
Count III survives. It is further
ORDERED that this matter is remanded to the District Court for the County of El
Paso, Colorado, where it was filed as Case No. 13-cv-30964.

DATED September 16, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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