J&J Sports Productions, Inc. v. Frank J. Salmeron, L.L.C. et al
Filing
22
ORDER AND REASONS - the Court GRANTS defendants motion 19 to dismiss J&J Sports's claim arising under 47 U.S.C. § 553 and DENIES defendants' motion to dismiss J&J Sports's claim arising under 47 U.S.C. § 605. J&J Sports is granted leave to amend its claim arising under 47 U.S.C. § 553 within 14 days of the entry of this Order.. Signed by Chief Judge Sarah S. Vance on 11/21/14. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.
CIVIL ACTION
VERSUS
NO: 14-1000
FRANK J. SALMERON, L.L.C.,
D/B/A PUPUSERIA DIVINO
CORAZON, ET AL.
SECTION: R
ORDER AND REASONS
Defendants FRANK J. SALMERON, L.L.C., d/b/a Pupuseria Divino
Corazon, Francisco Salmeron, and Aisher Salmeron move to dismiss
plaintiff’s complaint under Rule 12(b)(6) for failure to state a
claim.1
For the following reasons, the Court GRANTS the motion in
part and DENIES the motion in part.
I.
BACKGROUND
Plaintiff J&J Sports Productions, Inc. filed this lawsuit on
May 1, 2014, alleging that on May 5, 2012, defendants willfully
intercepted and broadcast J&J Sports’s closed circuit pay-per-view
boxing program without J&J Sports's authorization.2
According to the complaint, J&J Sports is a distributor of
closed circuit, pay-per-view boxing and special events in the
United States.
To view one of J&J Sports's pay-per-view events,
1
R. Doc. 19.
2
R. Doc. 2.
customers must pay a fee to J&J Sports for that event.
J&J Sports
alleges
nationwide
that
commercial
it
had
been
distribution
Mayweather,
Jr.
v.
granted
and
Miguel
the
broadcast
Cotto,
exclusive,
rights
WBA
to
Light
the
"Floyd
Middleweight
Championship Fight Program" ("boxing program"), which was telecast
nationwide on May 5, 2012.3
According to the complaint, J&J Sports
entered into "limited sub-licensing agreements" with a number of
commercial
entities
in
Louisiana,
which
conferred
upon
these
entities the right to publicly broadcast the boxing program within
their respective commercial establishments.4
J&J Sports alleges
that none the defendants was granted sublicensing rights or any
other rights related to the boxing program.5
According to the complaint, Pupuseria Divino Corazon is a
commercial restaurant and bar that serves food and alcoholic
beverages.6
The complaint alleges that on May 1, 2012, defendants
knowingly and unlawfully intercepted and exhibited the boxing
program at Pupuseria Divino Corazon for commercial advantage and
private financial gain.7
J&J Sports contends that the allegedly
unauthorized display of the boxing program at Pupuseria Divino
3
See id. at 7.
4
See id.
5
See id.
6
Id. at 5.
7
Id. at 6.
2
Corazon violated three federal statutes: 47 U.S.C. § 605, which is
part of the Cable Communications Policy Act of 1984; 47 U.S.C. §
553, which is part of the Cable and Television Consumer Protection
and Competition Act; and 18 U.S.C. §§ 2511 and 2520, which are part
of
the
Electronic
Communications
Privacy
Act
of
1986.8
The
complaint seeks monetary damages as well as attorneys' fees and
costs.9
On July 30, 2014, defendants filed this motion to dismiss J&J
Sports's claims under 47 U.S.C. § 553 and 47 U.S.C. § 605.10
Defendants argue that J&J Sports failed to state a claim under 47
U.S.C. § 553 because it did not allege that its program was
"offered over a cable system."11
Defendants also argue that J&J
Sports failed to state a claim under 47 U.S.C. § 605 because it did
not specifically allege that the communication was "not . . .
authorized by the sender" or that the boxing program was not
received via "authorized channels of transmission or reception."12
II. LEGAL STANDARD
8
Id. at 2.
9
Id. at 11-12.
10
R. Doc. 19.
11
R. Doc. 19-1 at 2.
12
Id. at 4.
3
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead “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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible
when the plaintiff pleads facts that “allow[] the court to draw the
reasonable
inference
misconduct alleged.”
that
Id.
the
defendant
is
liable
for
the
A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in favor of
the plaintiff.
Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th
Cir. 2012) (quoting In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007)).
But a court is not bound to accept as
true legal conclusions couched as factual allegations.
Iqbal, 556
U.S. at 678.
A legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's claim is true.
Id.
It
need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action.
Id. (citing Twombly, 550 U.S. at
555); Coleman v. Sweetin, 745 F.3d 756, 763-64 (5th Cir. 2014). In
other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal
evidence of each element of the plaintiff's claim. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
4
If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed.
Twombly, 550 U.S. at 555; Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th
Cir. 2007).
III. DISCUSSION
A.
Plaintiff's Claim Under 47 U.S.C. § 553
Section 553 imposes civil and criminal liability on a person
or entity that intercepts or receives communications "offered over
a cable system" without authorization.
See 47 U.S.C. § 553(a)(1);
J&J Sports Prods., Inc. v. Mandell Family Ventures, LLC, 751 F.3d
346, 348 (5th Cir. 2014).
Thus, to state a claim under Section
553, J&J Sports must allege facts that, if proved, would establish
that defendants' interception of the boxing program involved the
interception or receipt of a cable communication.
Plaintiff does not allege that defendants intercepted or
received a cable communication or a communication offered over a
cable system in violation of Section 553.
Instead, plaintiff
alleges that defendants intercepted or received a "closed circuit"
event, without explaining what type of transmission a closed
circuit program uses.13
13
The term "closed circuit" does not convey
R. Doc. 2 at 5, 7.
5
enough information to allow the Court to reasonably infer that
defendants are liable for unlawfully intercepting or receiving a
cable communication.
J&J Sports requests that it be allowed to amend its complaint
if the Court finds it deficient.14
Leave to amend a complaint
should be freely given "when justice so requires." Fed. R. Civ. P.
15(a)(2); Sigaran v. U.S. Bank Ass'n, 560 F. App'x 410, 412 (5th
Cir. 2014).
"If the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits."
Foman v.
Davis, 371 U.S. 178, 182 (1962). A district court "acts within its
discretion in denying leave to amend where the proposed amendment
would be futile because it could not survive a motion to dismiss."
Rio Grande Royalty Co. v. Energy Transfer Partners, LP, 620 F.3d
465, 468 (5th Cir. 2010) (citation omitted).
Defendants have not
suggested that any effort to amend the complaint would be futile.
Accordingly, the Court grants J&J Sports leave to amend its Section
553 claim within fourteen (14) days of the entry of this Order.
B.
Plaintiff's Claim Under 47 U.S.C. § 605
Section 605(a) makes it unlawful for any person or entity to
intercept and display radio communications or satellite programming
without proper authorization. See 47 U.S.C. § 605(a). The statute
provides:
14
R. Doc. 21 at 5.
6
[N]o person receiving . . . [or] transmitting . . . any.
. . communication by wire or radio shall divulge or
publish the existence, contents, substance, purport,
effect, or meaning thereof, except through authorized
channels of transmission or reception . . . . No person
not being authorized by the sender shall intercept any
radio communication and divulge or publish . . . such
intercepted communication to any person.
47
U.S.C.
§
605(a).
Although
§
605(a)
refers
to
radio
communications, the protection afforded to radio communications
extends to satellite television communications.
See United States
v. Harrell, 983 F.2d 36, 39 (5th Cir. 1993) (holding that section
605 "specifically proscribes the surreptitious interception of
satellite transmissions"); see also Nat'l Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 912 (6th Cir. 2001) (holding that
"satellite communications" are included "under the protection of §
605").
Defendants contend that J&J Sports's section 605 claim should
be dismissed because J&J Sports failed to specifically allege that
the communication was "not . . . authorized by the sender" or that
the boxing program was not received via "authorized channels of
transmission or reception."15
In effect, defendants argue that
although a "formulaic recitation" of statutory language is not
sufficient for a complaint to withstand a 12(b)(6) motion, Iqbal,
556 U.S. at 678, such a recitation is nonetheless necessary to make
out an adequate complaint.
15
Defendants are incorrect.
R. Doc. 19-1 at 4.
7
Although J&J Sports did not specifically use the statutory
term "authorize," it has alleged sufficient facts to support its
claim
that
defendants
broadcast
its
boxing
authorization in violation of 47 U.S.C. § 605.
program
without
First, J&J Sports
alleges that it was a party to a contract that granted it the
"exclusive
nationwide
commercial
distribution
(closed-circuit) rights" to the boxing program.16
and
broadcast
Second, J&J
Sports alleges that it granted various entities sub-licenses to the
boxing program so that these entities could publicly exhibit the
boxing program within their respective commercial establishments.17
Third, J&J Sports alleges that none of the defendants were granted
sublicensing rights or any other rights related to the boxing
program.18
Finally, the complaint alleges that despite not having
any sublicensing or other rights to display the boxing program,
defendants broadcasted the boxing program in their restaurant on
May 5, 2012.19
That J&J Sports held the "exclusive" nationwide right to
distribute and broadcast the program suggests that J&J Sports was
the only entity with the power to grant sub-licensing rights to
other entities that would authorize those entities to display the
16
R. Doc. 2 at 7.
17
See id.
18
See id.
19
Id. at 6, 8.
8
boxing program.
In other words, only J&J Sports could authorize
display of the boxing program.
Accepting these facts as true, the
Court can reasonably infer that if J&J Sports did not grant any
sub-licensing
unauthorized
Therefore,
rights
to
the
to
televise
Court
defendants,
the
denies
program
then
in
defendants’
defendants
their
motion
were
restaurant.
to
dismiss
plaintiff’s section 605 claim.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion
to dismiss J&J Sports's claim arising under 47 U.S.C. § 553 and
DENIES defendants' motion to dismiss J&J Sports's claim arising
under 47 U.S.C. § 605.
J&J Sports is granted leave to amend its claim arising under
47 U.S.C. § 553 within 14 days of the entry of this Order.
New Orleans, Louisiana, this 21st day of November, 2014.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
9
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?