J&J Sports Productions, Inc. v. Theta Beta Sigma Chapter of Phi Beta Sigma Fraternity, Incorporated, et al

Filing 22

ORDER & REASONS that the Defendant's 7 Motion to Dismiss for Failure to State a Claim is DENIED. Signed by Judge Eldon E. Fallon on 7/18/18. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

J & J SPORTS PRODUCTIONS, INC.

CIVIL ACTION

VERSUS

NO. 18-4406

THETA BETA SIGMA CHAPTER OF PHI BETA SIGMA
FRATERNITY, INC., ET AL.

SECTION "L" (2)

ORDER & REASONS
Before the Court is a motion to dismiss for failure to state a claim filed by Defendants Zeta Phi
Beta Sorority, Incorporated Alpha Gamma Zeta Chapter; Alpha Gamma Zeta Foundation; and
Mary Carter. R. Doc. 7. Plaintiff J & J Sports Productions, Inc. opposes. R. Doc. 11. Having
considered the parties’ briefs and the applicable law, the Court now issues this Order & Reasons.
I.

BACKGROUND

Plaintiff J & J Sports Productions, Inc. (“J&J”), a distributor of closed circuit pay-per view
boxing and special events, brings this action under The Cable & Television Consumer Protection
and Competition Act, claiming that Defendants violated J&J’s rights as the exclusive commercial
domestic distributor of a televised fight (“Program”). Defendants include a sorority chapter, Zeta
Phi Beta Sorority, Incorporated Alpha Gamma Zeta Chapter (“Zeta”); a legal entity formed to
further its mission and purpose, the Alpha Gamma Zeta Foundation (“A Foundation”) and its
President, Mary Carter (“Carter”); a fraternity chapter, Theta Beta Sigma Chapter of Phi Beta
Sigma Fraternity, Incorporated (“Theta Beta”); the Theta Beta Sigma Programs and Housing
Foundation; and two of its officers, William Harris and Dimitri Ashmore.

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Plaintiff alleges that Defendants unlawfully intercepted and broadcast Plaintiff’s Program as
part of a sorority and fraternity fundraising event at a venue owned by Bleu Diamond Event Hall,
LLC (“Bleu Diamond”). Plaintiff claims that Defendants compensated Bleu Diamond, advertised
and sold tickets to the Program, and had the right and ability to supervise the business and activities
of the venue on the date of the fundraiser – including the unlawful interception and broadcast of
the Program. R. Doc. 1 at 9.
II.

PRESENT MOTION

Defendants Zeta, A Foundation, and Carter filed a motion to dismiss for failure to state a claim.
R. Doc. 7. Defendants argue that Plaintiff has offered conclusory allegations that, in light of an
attached affidavit of Defendant Carter, should not be assumed true. R. Doc. 7-2 at 3. In the
affidavit, Carter asserts that the 12(b)(6) Defendants were not involved with the showing of
Plaintiff’s Program and did not have a legal or business interest in the premises. R. Doc. 7-1 at 2.
Plaintiff objects to Defendants’ attempt to use extrinsic evidence and contends that, in any
event, the complaint states a claim against Defendants. R. Doc. 11-1 at 3, 7.
III.

LAW & ANALYSIS
The Federal Rules of Civil Procedure permit a defendant to seek a dismissal of a complaint

based on the “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
A complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).
“To survive a motion to dismiss, a complaint must 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The district

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court must construe facts in the light most favorable to the nonmoving party and must accept as
true all factual allegations contained in the complaint. Iqbal, 556 U.S. at 678. “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. A court “do[es] not accept as
true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin v. IP
Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).
Generally, when evaluating a motion to dismiss under Rule 12(b)(6), the court should not
look past the pleadings. But a district court may, in its discretion, treat a motion to dismiss as a
motion for summary judgment and consider material outside the pleadings. “When a party bases a
motion to dismiss on matters outside the pleadings, the court has discretion either to accept the
extraneous material and convert the motion to dismiss into a motion for summary judgment, or to
decide the motion, as defendant styled it, under the principles of Rule 12(b)(6).” McDonald v.
Kansas City S. Ry. Co., 16-15975, 2017 WL 1709353, at *2 (E.D. La. May 3, 2017).
Here, Defendants ask the Court to consider an attached affidavit of Carter purporting to
refute allegations of Defendants’ participation in or benefit from the unlawful broadcast of
Plaintiff’s program. R. Doc. 7-2 at 3. The Court, in its discretion, declines to convert Defendants’
motion into a motion for summary judgment. This litigation is in its early stages and discovery has
not yet begun. Because a motion for summary judgment is premature at this time, the Court
excludes the extraneous evidence and considers Defendants’ motion as a motion to dismiss strictly
on the pleadings.
Plaintiff sued Defendants under (1) 47 U.S.C. § 605, which prohibits intercepting and
publishing radio communication; (2) 18 U.S.C. § 2511, which prohibits intentional interception of
any wire, oral, or electronic communication, in connection with § 2520, which creates a private

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right of action; and (3) 47 U.S.C. § 553, which prohibits unauthorized interception or reception of
any communications service offered over a cable system. Plaintiff further alleges that Defendants
willfully and intentionally intercepted the Program for the purpose of commercial advantage or
private financial gain, warranting enhanced statutory damages. R. Doc. 1 at 14-17.
Plaintiff has alleged sufficient facts to support its claim that Defendants violated its right
as the exclusive commercial domestic distributor of the Program. J&J alleges (i) it was granted
exclusive nationwide commercial distribution and broadcast rights to the Program; (ii) Defendants
were not granted rights related to the Program; and (iii) Defendants unlawfully intercepted and
broadcast the Program at a sorority and fraternity fundraising event. R. Doc. 1 at 15-16. J&J
describes specific steps taken by Defendants concerning the advertising and ticket sales of the
Program, alleges that Defendants had the ability to control, supervise, and administer the decision
to broadcast the Program, and alleges that Defendants obtained a financial gain (Zeta’s continued
existence) as a result of the fundraiser. R. Doc. 1 at 6-12.
IV.

CONCLUSION
For the aforementioned reasons, IT IS ORDERED that Defendants' Motion to Dismiss

for Failure to State a Claim, R. Doc. 7, is hereby DENIED.
New Orleans, Louisiana, this 18th day of July, 2018.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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