J&J Sports Productions, Inc. v. Gabby's Restaurant & Lounge, Inc. et al

Filing 17

ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.

CIVIL ACTION

VERSUS

NO: 14-0989

GABBY’S RESTAURANT & LOUNGE,
INC. d/b/a GABBY’S LOUNGE,
THERESA A. PIER AND
ELIZABETH A. PIER

SECTION: "A" (5)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 11) filed
by defendants Gabby’s Restaurant & Lounge, Inc. d/b/a Gabby’s
Lounge, Theresa A. Pier, and Elizabeth A. Pier (collectively
“Defendants”).

Plaintiff J&J Sports Productions, Inc. opposes

the motion. The motion, set for submission on August 13, 2014, is
before the Court on the briefs without oral argument. For the
reasons that follow, the motion is DENIED.
I.

BACKGROUND
Plaintiff J&J Productions, Inc. is a nationwide distributor

of closed circuit pay-per-view events. (Rec. Doc. 1, Comp. at 4).
Through a valid and enforceable contract, Plaintiff purchased
commercial distribution and broadcast (closed circuit) rights to
Floyd Mayweather, Jr. v. Miguel Cotto, WBA World Light
Middleweight Championship Fight Program (hereinafter “Program”).
Id. at 7.

Through sub-licensing agreements, Plaintiff granted

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various entities limited rights to display the Program on May 5,
2012 at their respective establishments. Defendants Gabby’s
Lounge, Theresa A. Pier, and Elizabeth A. Pier did not have a
sub-licensing agreement with plaintiff J&J Productions, Inc. nor
any right regarding the Program. Id. However, at the time of the
Program’s transmission, Plaintiff claims that Defendants
knowingly and unlawfully “intercepted, received, published,
divulged, displayed, and/or exhibited” the Program at its
establishment. Id. at 8.
Plaintiff subsequently filed this Complaint on April 30,
2014 asserting violations of Title 47 U.S.C. Section 605 (a),
(e)(3)(a) and (e)(4), Title 18 U.S.C. section 2511 in conjunction
with section 2520, and Title 47 U.S.C. Section 553. Id. at 11.
Defendants move to dismiss Plaintiff’s complaint, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, based on
the matter being procedurally time barred. Plaintiff opposes the
motion.
II.

DISCUSSION
In the context of a motion to dismiss the Court must accept

all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v. Ritemoney, Ltd.,
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378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet
is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). Thread-bare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S.
544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v. Rege,
627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008)). To avoid dismissal, a
plaintiff must plead sufficient facts to “state a claim for
relief that is plausible on its face.” Id. (quoting Iqbal, 129 S.
Ct. at 1949). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The Court does not accept as true
“conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d
690, 696 (5th Cir. 2005)). Legal conclusions must be supported by
factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950). A
Rule 12 (b)(6) motion is a proper vehicle to raise an argument
that an action is barred based on the applicable statute of
limitations. See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (2003)

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(citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79
(2002)).
The FCA does not provide a statute of limitations for
actions under 47 U.S.C.

§ § 553 and 605. Prostar v. Massachi,

239 F.3d 669, 671 (5th Cir. 2001). In the absence of a federal
statute of limitations for a particular statute, the court should
first borrow from the limitations period of the most analogous
state statute. North Star Steel Co. v. Thomas, 515 U.S. 29
(1995). However, there is a narrow exception that allows courts
to borrow the limitations period from analogous federal law if
borrowing from the state law would be at odds with the purpose of
the federal substantive law or would frustrate federal policy.
Id. Courts should only decline to follow a state limitations
period “when a rule from elsewhere in federal law clearly
provides a closer analogy than available state statutes, and when
the federal policies at stake and the practicalities of
litigation make that rule a significantly more appropriate
vehicle for interstitial lawmaking.” Id. at 35.
Defendants bring this 12(b)(6) motion asserting that
Plaintiff’s right of action under 47 U.S.C. § 605; 18 U.S.C. §
2511, 2520; and 47 U.S.C. § 553 et seq is time barred.
Defendants, citing to North Star, state that because there is no
express statute of limitations for sections 605 and 553, the
court must turn to the most analogous state prescription period.

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Defendants suggest Plaintiff’s complaint is a claim for personal
injury; therefore, the court should apply the one-year
limitations period for personal injury claims under Louisiana
tort law.
Plaintiff responds to Defendant’s Motion by asserting that
Louisiana’s one-year tort statute of limitations would undermine
the purpose of the Federal Communications Act (“FCA”).
Plaintiffs, citing to Pro Star v. Massachi, argue that the court
should consider competing interests and compare protection of
similar federal and state law to arrive at the applicable statute
of limitations. Plaintiffs contend that the three-year United
States Copyright Act statute of limitations should apply because
of its similarity in policy objectives and purpose.
Plaintiff correctly identifies Fifth Circuit precedent
determining this very issue. In Prostar, the plaintiff was a
corporation that purchased commercial sales rights in Louisiana,
among other states, for the transmission of a particular
broadcast. The plaintiff filed a claim against the defendant,
Jimani Lounge and Restaurant, asserting violations under the FCA.
Prostar 239 F.3d at 671. The plaintiff alleged that the
defendants unlawfully intercepted and displayed the broadcast.
Id.

Defendants contended that the action was time barred based

on Article 3492 of the Louisiana Civil Code which has a one-year
statute of limitations period governing delictual actions. Id.

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The court in Prostar set forth three successive levels of
analysis to determine whether the exception of using federal
limitations periods would apply. Id. at 672. First, the court
must “characterize the essence” of the statute in question in
order to determine which state cause of action is most analogous.
Id. Next, the court must decide if the most analogous state
statute would frustrate the policies underlying the federal law
or interfere with its practical implementation. Id. Lastly, the
court must determine whether there is another federal law more
closely analogous than the state law. Id.
During the first part of the analysis, the court in Prostar
determined through legislative history that Congress’ main
purpose in creating §§ 553 and 605 was to discourage cable theft
and to “protect the revenue of television cable companies from
unauthorized reception of their transmissions.” Id. at 673. The
court examined three possible analogous state laws: Louisiana law
governing delictual actions, Louisiana law governing personal
actions, and Louisiana law regarding recovery of compensation.
Id. at 675. The court decided that the Louisiana law governing
delictual actions was the most analogous state law. Id. In the
second part of the analysis, the court recognized the “multistate
nature” of actions brought under the FCA. Id. at 676. The court
noted that cable broadcasts are conducted on a national and
international basis, unlike the many other cases where courts
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applied the limitations period of the most analogous state
statute. Id. The court concluded that using the state law
limitations period would seriously weaken the implementation of
the FCA because applying state law would cause each of the fifty
states to use varying limitations periods. Id. In the third part
of the analysis, the court examined other analogous federal law
and determined that the Copyright Act provided a more appropriate
analogue to the FCA because it would eliminate the practical
difficulties of applying the state law. Id. Therefore, the court
held that the claims in Prostar were to be governed by a threeyear statute of limitations under the Copyright Act. Id.
The case before this Court is nearly identical to the
Prostar case. Both cases involve plaintiffs who purchased
broadcasting rights for the transmission of a particular
broadcast. Both cases involve defendants allegedly displaying the
particular broadcasts at their establishment without any
authority to do so. Additionally, both plaintiffs assert
violations under §§ 553 and 605 in the original complaint.
Finally, the defendants in both cases argue that the complaint is
procedurally time barred.
Because the case before this Court is indistinguishable from
the binding precedent in Prostar, the Court concludes that the
applicable statute of limitations is three years under the
Copyright Act.

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As to an action brought under 2511 in conjunction with 2520,
the statute clearly states, “a civil action under this section
may not be commenced later than two years after the date upon
which the claimant first has a reasonable opportunity to discover
the violation.” 18 U.S.C. § 2520. The alleged violation took
place on May 5, 2012. The claim was filed on April 30, 2014.
Plaintiff’s claims were not time barred under either a two year
or three year period; therefore, Defendant’s 12(b)(6) Motion to
Dismiss is DENIED.
IT IS ORDERED that the

Motion to Dismiss (Rec. Doc. 11)

filed by defendants Gabby’s Restaurant & Lounge, Inc. d/b/a
Gabby’s Lounge, Theresa A. Pier, and Elizabeth A. Pier
(collectively “Defendants”), is DENIED.
November 6, 2014

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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