Joe Hand Promotions, Inc. v. Hubbard et al

Filing 19

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that Defendants' Motion to Dismiss for Failure to State a Claim (Docket No. 11 ) is GRANTED as directed to Count I. Joe Hand is granted until June7, 2013 to file an amended complaint in accordance with this Memorandum and Order. Signed by Magistrate Judge Terry I. Adelman on 05/28/2013; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
BRANDON LEE HUBBARD and
HUBS PUB, LLC d/b/a HUB’S PUB,
Defendants.

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Case No. 4:12CV1729 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss for Failure to State a Claim
(Docket No. 11). Plaintiff Joe Hand Promotions, Inc. filed Suggestions in Opposition (Docket No.
13). Defendants filed a Reply (Docket No. 14) thereto. All matters are pending before the
undersigned United States Magistrate Judge, with the consent of the parties, pursuant to 28 U.S.C.
§ 636(c).
On September 25, 2012, Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”) filed this action
in this Court on the basis of federal question jurisdiction under The Federal Communications Act of
1934, 47 U.S.C. § 553, and The Cable and Television Consumer Protection and Competition Act of
1992, 47 U.S.C. § 605. In the three-count Complaint, Joe Hand seeking damages and other relief
related to the unlawful exhibition of the Ultimate Fighting Championship 133: Evans v. Oritz
Broadcast event for violation of The Cable and Television Consumer Protection and Competition Act
(Count I), the Federal Communications Act (Count II), and conversion under Missouri law (Count
III).

Facts
Accepting as true all factual allegations in the Complaint and viewing them in the light most
favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court sets forth the
following facts1:
Plaintiff Joe Hand Promotions, Inc. (“Joe Hand”), a Pennsylvania corporation, is a domestic
commercial distributor of sports and entertainment programming including the transmission signal
of the fight Program. Joe Hand purchased the exclusive nationwide television distribution rights to
the Ultimate Fighting Championship 133: Evans v. Oritz Broadcast event, broadcasted nationwide
on Saturday, August 6, 2011 (“Broadcast”), as well as the televised replay and color commentary.
(Complaint, ECF No. 1 at ¶¶ 4, 14). Joe Hand entered into subsequent sublicensing agreements with
various entities throughout North America, including entities within the State of Missouri. by which
it granted these entities the right to publicly exhibit the Broadcast for the benefit and entertainment
of their patrons. (Id. at ¶ 15). Defendant HUBS PUB, LLC d/b/a HUB’s PUB (Hub’s Pub) is a
business entity organized under the laws of the State of Missouri and doing business at 10 N. Dover
Street, Bonne Terre, Missouri 63628.

(Id. at ¶¶ 9-10).

Defendant Brandon Lee Hubbard

(“Defendant Hubbard”) is an officer, director, shareholder, and/or principal of Hub’s Pub and has
supervisory capacity and control over the activities occurring within Hub’s Pub on August 6, 2011.
(Id. at ¶¶ 6-7). Joe Hand alleges that Defendants Hub’s Pub and Hubbard unlawfully exhibited the
Broadcast
at Hub’s Pub. (Id. at ¶ 17).
1

These well-pleaded facts are taken from Plaintiff’s Complaint and are considered as true
for the purposes of this Memorandum and Order. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 194950 (2009); Neitzke v. Williams, 490 U.S. 319, 326 (1989).
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Standard for Ruling on a Motion to Dismiss
A complaint must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a). A complaint must be dismissed under Federal Rule
12(b)(6) for failure to state a claim upon which relief can be granted if the complaint fails to plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) (abrogating the “no set of facts” standard set forth in Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). However, if a complaint pleads facts that are “merely consistent with
a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief” and should be dismissed for failure to state a claim. Id. (internal quotation marks and citation
omitted). Determining whether a claim for relief is plausible is a context-specific task requiring the
court to draw on its judicial experience and common sense. Id. at 1950.
While the Court cautioned that the holding does not require a heightened fact pleading of
specifics, "a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." Twombly, 555 U.S. at 555. In other words, "[f]actual allegations must be enough to raise a
right to relief above the speculative level . . . ." Id. This standard simply calls for enough facts to
raise a reasonable expectation that discovery will reveal evidence of the claim. Id. at 556. Plausible
claims allow courts to draw “the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).
Courts must liberally construe the complaint in the light most favorable to the plaintiff and
accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding Corp.,
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517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as true all factual
allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008)
(explaining that courts should liberally construe the complaint in the light most favorable to the
plaintiff). Further a court should not dismiss the complaint simply because the court is doubtful that
the plaintiff will be able to prove all of the necessary factual allegations. Twombly, 550 U.S. at 556.
However, “[w]here the allegations show on the face of the complaint there is some insuperable bar
to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d
866, 870 (8th Cir. 2008) (citation omitted). Further, courts “‘are not bound to accept as true a legal
conclusion couched as a factual allegation.’” Ashcroft, 129 S. Ct. at 1950 (quoting Twombly, 550
U.S. at 555). When considering a motion to dismiss, a court can “begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.” Id. Legal
conclusions must be supported by factual allegations to survive a motion to dismiss. Id.
When reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),
the Court must accept as true all factual allegations contained in the Complaint, and review the
Complaint to determine whether its allegations show the pleader to be entitled to relief. Twombly,
550 U.S. at 555-56; Fed. R. Civ. P. 8(a)(2). The purpose of a motion to dismiss for failure to state
a claim is to test the legal sufficiency of the challenged claim. A claim must be dismissed under Rule
12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570 (abrogating the traditional 12(b)(6) “no set of facts’ standard set forth in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the Complaint need not provide specific facts
in support of the claims contained therein, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam),
it “must include sufficient factual information to provide the ‘grounds’ on which the claim rests,
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Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S.
555-56 & n.3). Although “specific facts are not necessary,” the plaintiff must allege facts sufficient
to “give fair notice of what the ... claim is and the grounds upon which it rests.” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). This obligation requires a plaintiff to
plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. When determining a motion to dismiss under Rule
12(b)(6), “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Against this backdrop, the undersigned determines Plaintiff has plead sufficient facts to raise
a right to relief as claimed in the three counts of the Complaint.
Discussion
Defendant Hubbard argues Joe Hand has failed to state claims against him in Counts I and II
because Joe Hand has not pled enough facts to indicate that no distinction exists between his actions
and Defendant Hub’s Pub’s actions. Additionally, both Defendants argue Joe Hand has failed to state
claims against them in Count I because Joe Hand failed to allege that the event in question was
transmitted interstate. Both Defendants also argue Joe Hand has failed to state claims against them
in Counts I and II because Joe Hand failed to allege sufficient detail to give them fair notice of the
claims against them. Finally, both Defendants argue Joe Hand has failed to state claims against them
in Count III because the common law tort of conversion does not cover intangible property under
Missouri law.
The Court finds Joe Hand has pled sufficient facts to show Defendant Hubbard was directly
involved in the interception of the Broadcast. See J & J Sports Prods., Inc. v. Scarato, No.
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4:07cv2058, 2008 WL 2065195, at * 2 (E.D. Mo. May 14, 2008); J & J Sports Prods., Inc. v. L &
J Group, LLC, No. 09cv3118, 2010 WL 816719, at *2 (D. Md. Mar. 4, 2010). Likewise, the Court
finds that Joe Hand’s Complaint contains sufficient factual detail to put Defendants on notice of the
claims against them. Finally, the Court finds Missouri law does not clearly prohibit conversion claims
for intangible property. See Clayton X-Ray Co. v. Professional Sys. Corp., 812 S.W.2d 565, 567
(Mo. Ct. App. 1991) (finding conversion claim existed for “locking up” computer system and
preventing access to the information contained in the system). In the absence of a Missouri case
directly addressing the viability of a conversion claim for the pirating of a broadcast signal, the Court
will not dismiss Joe Hand’s conversion claim in Count III.
As in the related case before Judge Hamilton, the Court finds that Joe Hand’s failure to plead
that the Broadcast was transmitted interstate is fatal to Count I of the instant Complaint. See 47
U.S.C. § 605(a); Joe Hand Promotions, Inc. v. Sorota, No. 11-80985, 2012 WL 2414035, at *4
(S.D. Fla. June 26, 2012) (“Section 605(a) explicitly states that it governs only interstate
communications and the Complaint fails to allege that the event took place in a different state from
where is was shown.”). Therefore, the Court will dismiss Count 1 of Joe Hand’s Complaint and
grants Joe Hand until May 30, 2013 to correct this pleading deficiency.2
2

Although Defendants are correct that Joe Hand’s alternative request for leave to amend is
improper inasmuch as Joe Hand does not set forth what additional facts it would allege to buttress
its allegations or set forth what other facts it would include in an amended complaint, the Court
nonetheless will permit the filing of an amended complaint. Under Rule 15 of the Federal Rules of
Civil Procedure, a district court should grant leave to amend freely “when justice so requires,”
and a motion to amend should only be denied for limited reasons, including plaintiff’s undue delay
or bad faith in bringing the motion, unfair prejudice to defendant, or futility of the amendment.
Foman v. Davis 371 U.S. 178, 182 (1962); Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008).
Whether to grant a motion for leave to amend is within the discretion of the district court.
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008)
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Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Failure to State a Claim
(Docket No. 11) is GRANTED as directed to Count I. Joe Hand is granted until June7, 2013 to file
an amended complaint in accordance with this Memorandum and Order.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

Dated this 28th day of May, 2013.

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