Joe Hand Promotions, Inc. v. Cuzzins I, LLC et al

Filing 16

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss Plaintiffs Complaint, [Doc. No. 8], is granted in part and denied in part. Count I is dismissed. IT IS FURTHER ORDERED that Defendants Motion to Strike, [Doc.No. 10], Plaintiffs Prayer for Attorneys Fees in Count III is granted and denied as to Plaintiffs prayer for investigative costs. IT IS FURTHER ORDERED that Plaintiff is given 7 days from the date of this Opinion, Memorandum and Order to file an Amended Complaint. 8 10 ( Response to Court due by 2/5/2014.) Signed by District Judge Henry E. Autrey on 1/29/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
vs.
CUZZINS I, LLC, et al.,
Defendants.

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Case No. 4:13CV2404 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motions to Dismiss
Plaintiff’s Complaint, [Doc. No. 8], and Defendants’ Motion to Strike Plaintiff’s
Prayer for Attorneys’ Fees in Count III for Conversion and for Investigative Costs,
[Doc. No. 10]. Plaintiff opposes the Motion to Dismiss, and partially opposes the
Motion to Strike. For the reasons set forth below, the Motion to Dismiss is
granted in part and denied in part. The Motion to Strike is granted in part and
denied in part.
Facts and Background1
Plaintiff was granted the exclusive nationwide commercial distribution
rights to the Ultimate Fighting Championship 123 : Rampage Jackson v. Lyoto

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This recitation of facts is taken from the Complaint herein and is for the purposes of the
motion to dismiss. It in no way relieves the parties of any necessary proof in later proceedings.

Machida telecast, which took place on November 20, 2010. Pursuant to the
contract granting Plaintiff its distribution rights, Plaintiff entered into sublicensing agreements with various commercial establishments to permit the public
exhibition of the Program. Plaintiff alleges that, without its authorization,
Defendants unlawfully intercepted and exhibited the Program at their commercial
establishment in Farmington, Missouri.
Defendant moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure for failure to state a claim and for failure to plead fraud with
particularity.
Discussion
Motion to Dismiss
When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss for failure to state a claim, the Court must take as true the alleged facts and
determine whether they are sufficient to raise more than a speculative right to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The Court does
not, however, accept as true any allegation that is a legal conclusion. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). The complaint must have “‘a short and
plain statement of the claim showing that the [plaintiff] is entitled to relief,’ in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds
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upon which it rests.’” Twombly, 550 U.S. at 555 (quoting Fed.R.Civ.P. 8(a)(2))
and then Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Twombly, supra);
see also Gregory v. Dillard’s Inc., 565 F.3d 464, 473 (8th Cir.) (en banc), cert.
denied, 130 S.Ct. 628 (2009). While detailed factual allegations are not necessary,
a complaint that contains “labels and conclusions,” and “a formulaic recitation of
the elements of a cause of action” is not sufficient. Twombly, 550 U.S. at 555;
accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570;
accord Iqbal, 129 S.Ct. at 1949; Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009). “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.” Iqbal, 129 S.Ct. at 1949. If the
claims are only conceivable, not plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570; accord Iqbal, 129 S.Ct. at 1950. In considering a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), “the complaint should be read as
a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a
motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff
is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490
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U.S. 319, 327 (1989). “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, --- U.S. ----, 129 S.Ct. 1937, 1949,(2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, “although a
complaint need not include detailed factual allegations, ‘a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.’ ” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 62930 (8th Cir.2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
In J & J Sports Productions, Inc. v. Scarato, 2008 WL 2065195, Judge Jean
C. Hamilton found that allegations very similar to the allegations in Plaintiff’s
Complaint satisfy rule 12t(b)(6). The allegations in Judge Hamilton’s case are
delineated:
In its Complaint, filed December 14, 2007, J & J alleges Defendants
Scarato, individually and as an officer, director, shareholder and/or
principal of the Taverna, and the Taverna: unlawfully received and
published communications, in violation of 47 U.S.C. § 605(a) (Count
I); modified or utilized equipment, knowing or having reason to know
the equipment is primarily used for the unauthorized decryption of
satellite cable programming or other prohibited activities, in violation
of 47 U.S.C. § 605(e)(4) (Count II); and intercepted and exhibited the
Program over a cable system without authorization, in violation of 47
U.S.C. § 553 (Count III). (Doc. No. 1, ¶¶ 14–36).

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Based on this allegation, Judge Hamilton concluded that Plaintiff satisfied
Rule 12(b)(6)’s requirements. This Court agrees with this conclusion. The
Complaint clearly alleges Defendant Timothy D. Wiles, individually and as an
officer, director, shareholder and/or principal of Cuzzins I, LLC, unlawfully
received and published communications, in violation of 47 U.S.C. § 605(a) (Count
I); intercepted and exhibited the Program over a cable system without
authorization, in violation of 47 U.S.C. § 553 (Count II); and tortiously obtained
possession of the Program and wrongfully converted it to Defendants’ own use
and benefit. (Count III). See also, Joe Hand Promotions, Inc. v. Hubbards, 2013
WL 2319354 (E.D MO 2013).
With respect to Defendant’s challenge that Plaintiff does not allege an
interstate transmission, the Court agrees with Judges Hamilton and Adelman that
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.”).
Hubbards, 2013 WL 2319354 at *3. Plaintiff has not alleged the interstate
transmission, therefore, Count I will be dismissed with leave to amend.

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Motion to Strike
Defendants argue Plaintiff's requests for attorney's fees in Count III and
“investigative costs” in Counts I, II, and III should be stricken. Plaintiff does not
oppose striking its request for attorney's fees in Count III but argues that
“investigative costs” are recoverable under the statutory causes of action pled in
Counts I and II. The Court finds investigative costs are appropriately recoverable
under the statutory causes of action pled in Counts I and II. See Kingvision
Pay–Per–View Ltd. v. Autar, 426 F.Supp.2d 59, 67 (E.D.N.Y.2006) (finding
investigative costs included in “full costs” recoverable under The Federal
Communications Act). Therefore, the Court dismisses Plaintiff's request for
attorney's fees in Count III of Plaintiff's Complaint.
Conclusion
Plaintiff’s Complaint satisfies the requirements of Rules 12(b)(6) with
respect to Counts II and III, but fails to allege interstate interception in Count I.
Count I is dismissed with leave to amend. The Motion to Strike Attorneys’ Fees
in Count III is granted. The Motion to Strike the prayer for investigative costs is
denied.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss
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Plaintiff’s Complaint, [Doc. No. 8], is granted in part and denied in part. Count I
is dismissed.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike, [Doc.
No. 10], Plaintiff’s Prayer for Attorneys’ Fees in Count III is granted and denied
as to Plaintiff’s prayer for investigative costs..
IT IS FURTHER ORDERED that Plaintiff is given 7 days from the date
of this Opinion, Memorandum and Order to file an Amended Complaint.
Dated this 29th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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