Joe Hand Promotions, Inc. v. Bick et al
Filing
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OPINION: Third-Party Defendant Cass Communications Management, Inc.'s Motion to Dismiss the Third-Party Complaint of Defendants and Third-Party Plaintiffs Pamela Bick and City Limits Bar and Grill, Inc. 11 is DENIED. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 10/20/2014. (GL, ilcd)
E-FILED
Monday, 20 October, 2014 02:12:09 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOE HAND PROMOTIONS, INC.,
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Plaintiff,
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v.
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PAMELA BICK, individually and
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d/b/a CITY LIMITS BAR & GRILL, )
INC. d/b/a UPTOWN CITY LIMITS )
BAR & GRILL and CITY LIMITS
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BAR & GRILL, INC. d/b/a
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UPTOWN CITY LIMITS BAR &
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GRILL,
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Defendants,
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PAMELA BICK and CITY LIMITS )
BAR & GRILL, INC.,
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Third-Party Plaintiffs, )
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v.
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CASS COMMUNICATIONS
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MANAGEMENT, INC.,
)
)
Third-Party Defendant. )
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
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CIVIL NO. 14-3054
Before the Court is Third-Party Defendant Cass
Communications Management, Inc.’s Motion to Dismiss the ThirdParty Complaint of Defendants and Third-Party Plaintiffs Pamela
Bick and City Limits Bar and Grill, Inc. (d/e 11). The motion is
DENIED. The Court possesses subject-matter jurisdiction over the
Defendants’ third-party claim, venue in this Court is proper, and
the third-party complaint states a claim upon which relief can be
granted.
I. BACKGROUND
The original Plaintiff in this case, Joe Hand Promotions
(“JHP”), is in the business of distributing licensing rights to
televised fighting events. Complaint, d/e 1 ¶¶ 1, 14. JHP
distributed licensing rights for a program entitled “Ultimate Fighting
Championship 160: Cain Velasquez v. Antonio Silva,” which took
place on May 25, 2013, to various businesses throughout Illinois.
Id. ¶ 15. Defendant and Third-Party Plaintiff City Limits Bar and
Grill was among the businesses that showed the Velasquez/Silva
fight. Id. ¶ 17. JHP filed this lawsuit against City Limits and its
owner, Defendant and Third-Party Plaintiff Pamela Bick, on
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February 11, 2014, claiming that Bick and City Limits showed the
fight without authorization in violation of the Communications Act
of 1934, 47 U.S.C. § 605 et seq., and the Cable and Television
Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553
et seq. Id. ¶¶ 17-26.
In their answer to JHP’s complaint, Bick and City Limits deny
JHP’s allegations and raise a number of affirmative defenses to
JHP’s claims. See Defendants Pamela Bick and City Limits Bar and
Grill, Inc.’s Answer, Affirmative Defenses, and Third-Party
Complaint, d/e 8. They also bring a third-party complaint against
their cable company, Third-Party Defendant Cass Communications
Management, Inc. Id. at 11. Specifically, Bick and City Limits
allege that Cass assured them that they were permitted “to order
and show pay-per-view programming as long as [they] did not
charge customers any extra fee or cover charge.” Id. at 12. Bick
and City Limits claim that Cass should have known they needed to
pay JHP a commercial fee to show the Velasquez/Silva fight and
that they relied on Cass’s assurances to the contrary when they
showed the fight without paying such a fee. Id. at 12-13. They
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argue that as a result, Cass is liable for any damages they owe JHP.
Id. at 13.
Cass now moves to dismiss Bick and City Limits’s complaint
against Cass. See Motion to Dismiss Third-Party Complaint
(“Motion”), d/e 11. Cass contends that the third-party complaint
must be dismissed under Federal Rule of Civil Procedure 12(b)(1)
for lack of subject-matter jurisdiction, 12(b)(3) for improper venue,
and 12(b)(6) for failure to state a claim upon which relief can be
granted. Id. at 1.
II. ANALYSIS
Cass’s motion purports to move to dismiss Bick and City
Limits’s third-party complaint under Rule 12(b)(1), 12(b)(3), and
12(b)(6), but the motion does not clearly connect its arguments to
those rule provisions. Furthermore, the motion is a little over two
pages long and contains no citations to legal authority. Instead, the
motion quotes the contract that Bick and City Limits entered into
with Cass, which provided: “It is agreed the Circuit Court of the
Eighth Judicial Circuit, Cass County, Illinois shall be the exclusive
forum for any legal action arising out of or relating to this
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Agreement.” Motion at 2. Cass also quotes a contract provision
that stated: “Customer acknowledges that Cass Communications is
not responsible or liable for the content of any programming or
services.” Id. Cass then argues that JHP cannot state a claim
against it under 47 U.S.C. § 605 or 47 U.S.C. § 553, meaning that
no question of federal law can exist in Bick and City Limits’s thirdparty complaint against Cass. Id. at 2-3.
Bick and City Limits respond that the Court has subjectmatter jurisdiction under 28 U.S.C. § 1367(a), that venue is proper
under 28 U.S.C. § 1391, and that they state a valid claim under
Illinois law. See Defendants’/Third-Party Plaintiffs’ Response to
Third-Party Defendant’ Motion to Dismiss, d/e 12 at 2;
Defendants’/Third-Party Plaintiffs’ Memorandum of Law in Support
of Their Response to Third-Party Defendant’ Motion to Dismiss, d/e
13 at 4-6. Bick and City Limits are correct on all counts.
First, 28 U.S.C. § 1367(a) provides the Court with
supplemental jurisdiction over any claims that are “so related to”
claims over which the Court has original jurisdiction—here, JHP’s
statutory claims against Bick and City Limits—such that the related
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claims “form part of the same case or controversy” as the original
claims. See 28 U.S.C. § 1367(a). This supplemental jurisdiction
can include “claims that involve the joinder . . . of additional
parties.” Id. The Seventh Circuit has held that “[c]laims form part
of the same case or controversy when they ‘derive from a common
nucleus of operative fact.’” McCoy v. Iberdrola Renewables, Inc.,
760 F.3d 674, 683 (7th Cir. 2014) (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966)). “A loose factual connection
between the claims is generally sufficient” to establish such a
common nucleus. Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir.
1995). Since Bick and City Limits claim that Cass is liable for the
conduct for which JHP is seeking to hold them liable, their claim
against Cass does arise out of the same facts as JHP’s claims
against them. Therefore, this Court has subject-matter jurisdiction
over Bick and City Limits’s third-party claim against Cass.
Bick and City Limits are also correct in pointing to 28 U.S.C.
§ 1391 as providing venue in this Court. The United States
Supreme Court recently clarified that “[w]hether the parties entered
into a contract containing a forum-selection clause has no bearing
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on whether a case falls into one of the categories of cases listed in
§ 1391(b).” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of
Texas, __ U.S. __, 134 S. Ct. 568, 577 (2013). Here, venue is proper
under § 1391(b)(2) because the Central District of Illinois is “a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred.” See 28 U.S.C. § 1391.
The Court in Atlantic Marine held that “a case filed in a district that
falls within § 1391 may not be dismissed under . . . Rule 12(b)(3).”
134 S. Ct. at 577. Rather, the Court clarified that a motion to
transfer under 28 U.S.C. § 1404 was the proper way to seek
enforcement of a forum-selection clause when the desired forum
was federal, and the doctrine of forum non conveniens could be
invoked when the forum-selection clause provided for a state forum.
Id. at 579-80. Cass has made no such arguments here, and since
venue is proper under § 1391(b)(2), dismissal under Rule 12(b)(3)
must be denied.
Lastly, Cass has not shown that Bick and City Limits cannot
state a claim under Illinois law upon which relief may be granted.
Dismissal under Rule 12(b)(6) is proper if a complaint does not
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“contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Cass does not clearly articulate why it believes Bick
and City Limits’s third-party complaint should be dismissed under
Rule 12(b)(6). Cass may be attempting to make such an argument
by raising the provision of its contract with Bick and City Limits
that states that Cass “is not responsible or liable for the content of
any programming or services.” See Motion, d/e 11 at 2. However,
insofar as that provision may relate to a motion to dismiss, the
provision does not appear to apply to Bick and City Limits’s claim.
Bick and City Limits are trying to hold Cass responsible for a
statement Cass allegedly made concerning the licensing of its
programming, not the content of that programming.
Aside from quoting that contract provision, Cass does not
make any arguments to show why Bick and City Limits would not
be able to bring an indemnity claim against Cass. Such a claim is
cognizable under Illinois law when a defendant can show that a
third party is actually responsible for harm that the defendant
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caused the plaintiff. See, e.g., Kerschner v. Weiss & Co., 667
N.E.2d 1351, 1355-56 (Ill. App. Ct. 1996). Since Bick and City
Limits at least arguably make out a claim that Cass is responsible
for their not paying a commercial fee for the Velasquez/Silva fight,
and Cass does nothing to counter that claim, the claim survives
Cass’s 12(b)(6) motion to dismiss.
III. CONCLUSION
Accordingly, Third-Party Defendant Cass Communications
Management, Inc.’s Motion to Dismiss the Third-Party Complaint of
Defendants and Third-Party Plaintiffs Pamela Bick and City Limits
Bar and Grill, Inc. (d/e 11) is DENIED.
ENTER: October 20, 2014.
/s Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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