Silver State Broadcasting, LLC et al v. Beasley FM Acquisition et al

Filing 35

ORDER Granting in part and Denying in part #5 Motion to Dismiss. Claims 1-6, 8-9, 12-18 made by Plaintiffs Royce International Broadcasting Corporation and Golden State Broadcasting, LLC are Granted. Claims 2, 4-5, 8-9, 14-18 made by Silver State is Granted. Claims 7 and 11 are Denied. Claims 1, 3, 6, 12-13 alleged by Silver State are Denied. Motion for a more definite statement and and motion to strike are Denied. Signed by Judge Miranda M. Du on 9/12/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
SILVER STATE BROADCASTING, LLC; a
Case No. 2:11-cv-01789-MMD-CWH
Nevada LLC; ROYCE INTERNATIONAL
BROADCASTING CORPORATION; a
Nevada corporation; GOLDEN STATE
ORDER
BROADCASTING, LLC, a Nevada
corporation,
(Defs.’ (1) Motion to Dismiss; (2) Motion
to Strike; and (3) Motion for a More
Plaintiffs,
Definite Statement as to the First
v.
Amended Complaint – dkt. no. 5)
BEASLEY FM ACQUISITION
CORPORATION, a Delaware corporation;
BEASLEY BROADCASTING OF NEVADA,
LLC, a North Carolina limited liability
company; WAEC LICENSE LIMITED
PARTNERSHIP; a Delaware limited
partnership; KJUL LICENSE, LLC, a North
Carolina limited liability company; MICHAEL
JAY BERGNER dba BERGNER & CO., an
individual; et al.,

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Defendants.

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I.

SUMMARY

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Before the Court is Defendants Beasley FM Acquisition Corporation, Beasley

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Broadcasting of Nevada, LLC, WAEC License Limited Partnership and KJUL License,

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LLC’s (collectively referred to as “Defendants”) Motion to Dismiss, Motion to Strike and

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Motion for a More Definite Statement as to the First Amended Complaint. (Dkt. no. 5.)

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For reasons discussed below, the Motion to Dismiss is granted in part and denied in

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part, and the Motion to Strike and the Motion for a More Definite Statement are denied.

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II.

BACKGROUND

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In May 2009, Plaintiff Silver State Broadcasting, LLC (“Silver State”) entered into

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an Asset Purchase Agreement (“APA”) with Defendants for the purchase of a radio

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station and certain assets used in the operation of two other stations. The transaction

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also included an ancillary sublease for space in Defendants’ building, and an alleged

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Sales and Marketing Agreement (“SMA”) under which Defendants would sell advertising

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time on Plaintiffs’ radio stations. Defendant Michael Jay Bergner dba Bergner & Co.

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brokered the transaction. The closing took place in August 2009. Plaintiffs Royce

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International Broadcasting Corporation (“Royce”) and Golden State Broadcasting LLC

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(“Golden State”) are, respectively, the parent corporation and sister company of Silver

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State.

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Plaintiffs have alleged the following facts. First, sometime after closing, Plaintiffs

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discovered that the equipment purchased was not in “good and operating condition” as

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warranted in the APA and Defendants failed to deliver FCC licenses and other property.

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Second, Defendants sold advertising time on Plaintiffs’ radio stations at prices below

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market rates, received payments for the advertising directly, and withheld the revenue

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from Plaintiffs. Additionally, Defendants, while acting as agents of Plaintiffs, directed

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potential customers to Defendants’ sales people rather than to Plaintiffs’.

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Defendants changed the locks on Plaintiffs’ leased space without notice to Plaintiffs or

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legal process, entered the leased space, and removed personal property, causing

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damage to Plaintiffs’ property. Defendants also posted a sign outside the building, visible

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to third parties, indicating that Plaintiffs needed to make arrangements to retrieve their

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property.

Finally,

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Plaintiffs allege eighteen claims: 1) breach of contract under the APA, 2) breach

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of the sublease agreement, 3) wrongful eviction, 4) specific performance, 5) injunctive

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relief, 6) trespass, 7) breach of the sales and marketing agreement, 8) conversion, 9)

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tortious interference with contractual relations, 10) breach of fiduciary duties, 11) tortious

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interference with economic advantage, 12) breach of warranty, 13) negligent
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misrepresentation, 14) defamation, 15) accounting, 16) rescission, 17) respondeat

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superior, and 18) punitive damages.

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dismissal, strike and more definite statement. The Court will address each requested

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relief in turn below.

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III.

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Defendants’ Motion seeks three remedies:

DISCUSSION
A.

Legal Standard
1.

Motion to Dismiss

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While

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Rule 8 does not require detailed factual allegations, it demands “more than labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550

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U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

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697 (internal citation omitted). “Documents whose contents are alleged in a complaint

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and whose authenticity no party questions, but which are not physically attached to the

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pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.”

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Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 2002) (quoting Branch v.

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Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)).

In re

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In Iqbal, the Supreme Court recently clarified the two-step approach district courts

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are to apply when considering motions to dismiss. First, a district court must accept as

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true all well-pled factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. Id. at 678. Mere recitals of the elements of a cause

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of action, supported only by conclusory statements, do not suffice. Id. Second, a district

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court must consider whether the factual allegations in the complaint allege a plausible
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claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allows the court to draw a reasonable inference that the defendant is

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liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the

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court to infer more than the mere possibility of misconduct, the complaint has “alleged—

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but not shown—that the pleader is entitled to relief.” Id. at 679 (internal quotation marks

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omitted). When the claims in a complaint have not crossed the line from conceivable to

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plausible, plaintiff’s complaint must be dismissed.

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Consequently, a complaint must contain either direct or inferential allegations concerning

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“all the material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989) (emphasis in original)).
2.

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Twombly, 550 U.S. at 570.

Motion for a More Definite Statement

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A motion for a more definite statement should not be granted unless the pleading

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is “so vague or ambiguous that a party cannot reasonably be required to frame a

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responsive pleading.” Fed. R. Civ. P. 12(e). This liberal standard is consistent with Fed.

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R. Civ. P. 8(a) which allows pleadings that contain a “short and plain statement of the

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claim.” Motions made under Rule 12(e) are disfavored and rarely granted because of

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the minimal pleading requirements of the Federal Rules. Sagan v. Apple Computer, Inc.,

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874 F. Supp. 1072, 1077 (C.D. Cal. 1994) (citing In re American Int’l Airways, Inc., 66

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B.R. 642, 645 (E.D. Pa. 1986)). Parties are expected to use the discovery process, not

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pleadings, to learn the specifics of the claims being asserted. Id. Where the substance

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of a claim has been alleged but some of the details have been omitted, the motion will

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likely be denied. Boxall v. Sequoia High School Dist., 464 F. Supp. 1104, 1113-14 (N.D.

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Cal. 1979).

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B.

Analysis
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Claims Not Recognized as Causes of Action

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As a preliminary matter, the Court dismisses Plaintiffs’ Claims 4 (Specific

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Performance), 5 (injunctive relief), 15 (accounting), 16 (rescission), and 18 (punitive
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damages) as these “claims” are not recognized causes of action but are rather remedies.

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Under Rule 12(b)(6), a request for a specific remedy is not sufficient “to state a claim

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upon which relief can be granted.” See, e.g., Jensen v. Quality Loan Service Corp., 702

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F.Supp.2d 1183, 1201 (E.D. Cal. 2010). The Court emphasizes, however, that despite

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this dismissal these remedies may still be available to Plaintiffs if they are able to prevail

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on an independent cause of action.

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Additionally, the Court dismisses claim 17, which describes respondeat superior,

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a legal theory imposing liability on an employer for the actions of an employee. See, e.g.,

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Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996). Respondeat

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superior is not a valid claim. Moreover, Plaintiffs allege that Defendant Does 1 through

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50 and Roes 51 through 100 were “under direction and control of Defendants” and thus

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Defendants are liable for the actions of the Does and Roes. However, the Complaint fails

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to detail anything that these Does and Roes allegedly did.

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2.

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Defendants argue that neither Royce nor Golden State is a real party in interest to

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Claims Brought by Plaintiffs Royce International Broadcasting
Corporation and Golden State Broadcasting, LLC

the agreements at issue and both lack standing. The Court agrees.

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Federal Rule of Civil Procedure 17(a)(1) states that “[a]n action must be

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prosecuted in the name of the real party in interest.” The real party in interest is the

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party who may maintain the action under the applicable state law. American Triticale,

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Inc. v. Nytco Serv. Inc., 664 F.2d 1136, 1141 (9th Cir. 1981). Similarly, under the case

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and controversy requirement of Article III, a plaintiff “generally must assert his own legal

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rights and interests, and cannot rest his claim to relief on the legal rights or interests of

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third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Thus, even though its interests

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may be affected by the litigation, a company may not assert the rights of an affiliate

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based solely on their shared business interests. E.g., Diesel Systems, Ltd. V. Yip Shing

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Diesel Engineering Co., Ltd., 861 F.Supp. 179, 181 (E.D.N.Y. 1994).

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Neither Royce nor Golden State was a party to the APA or the sublease. Neither

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has alleged any privity of contract, third party beneficiary status, or injury caused by

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Defendants’ actions other than vis-a-vis injury to Plaintiff Silver State. It does appear

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that all Plaintiffs may have been parties to the SMA and Defendants were selling

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advertising time on all of Plaintiffs’ radio stations.

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related to the SMA, it appears from the Complaint, and Plaintiffs’ Opposition, that the

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only connection to Defendants’ alleged actions is Royce and Golden State’s corporate

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relationship with Silver State. Such a relationship among Plaintiffs does not provide a

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sufficient basis for all of them to assert claims against Defendants. Royce and Gold

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must demonstrate they each independently have some relationship with or connection to

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Defendants. Thus, the Court grants the Motion to Dismiss as to Plaintiffs Royce and

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Golden State’s claims 1 (breach of contract – APA), 2 (breach of sublease agreement), 3

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(wrongful eviction), 6 (trespass), 8 (conversion), 12 (breach of warranty), 13 (negligent

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misrepresentation), and 14 (defamation).

However, other than the actions

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This leaves Plaintiff Silver State’s contract and tort claims together with Plaintiffs

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Silver State, Royce, and Golden State’s claims for breach of the SMA, tortious

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interference with contractual relations, and tortious interference with economic

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advantage. For clarity, the Court will refer only to “Silver State” where the claims of

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Royce and Golden State have been dismissed, and generally to “Plaintiffs” where Silver

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State, Royce and Golden State all assert claims.

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3.

Claims under the Asset Purchase Agreement

Silver State asserts two claims arising from breach of the APA. Defendants argue
that these claims are time-barred. The Court disagrees.

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Initially, the Court must determine if the APA, which is attached to Defendants’

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Motion, can be considered in deciding the Motion under Rule 12(b)(6). Plaintiffs argue

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that the contract should not be considered because discovery has not commenced and

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Plaintiffs are unable to verify the authenticity of the APA. The Court notes that while

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Silver State’s claims are premised on the existence of the APA, Silver State has not
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provided its own copy of the agreement, has not expressly challenged the authenticity of

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the copy provided by the Defendants as Exhibit 1, and has quoted language from the

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APA in opposing dismissal. Consequently, the Court presumes that either Silver State

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has had the opportunity to compare its own copy (from which they quote) to the

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Defendants’ Exhibit 1 and not challenged its authenticity, or it has adopted Defendants’

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Exhibit 1 by quoting its language. For these reasons, the Court finds that it may consider

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the contract provided as Defendants’ Exhibit 1 in the 12(b)(6) analysis.

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Turning then to the APA, Silver State has alleged sufficient facts to state a claim

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for breach of contract. The question before the Court, then, is if the APA prescribes a

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shorter limitation period for such a claim. Defendants argue that the indemnification

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provisions of the contract1 coupled with the one-year survival of all representations,

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warranties, and covenants2 evidences the parties’ negotiated intent to limit the time

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period to bring suit for breach of contract to one year.

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Defendants’ arguments are flawed. The portions of the contract upon which

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Defendants rely deal only with Defendants’ indemnification obligations and claims

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seeking for such indemnifications. These provisions do not cover or extend to claims for

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breach of contract. Thus, Defendants’ Motion to Dismiss as to claims 1 (breach of the

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APA) and 12 (breach of warranty) is denied.
4.

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Claims Under Ancillary Agreements

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Plaintiffs have also alleged breaches of the SMA and the sublease agreement. To

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assert a claim for breach of contract, Plaintiffs must show the following elements: the

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existence of a valid contract, (2) performance or excuse for non-performance of the

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contract, (3) breach, and (4) damages. Calloway v. City of Reno, 993 P.2d 1259 (Nev.

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Section 10.1 provides in pertinent part, “Seller shall indemnify, defend, and hold
harmless Buyer and its affiliates . . . from and against, and reimburse them for, all
claims, damages, costs and expenses . . . resulting from: . . . (d) any untrue
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Section 10.5 provides in pertinent part, “[t]he representations and warranties,
covenants, indemnities and other agreements contained in this Agreement . . . shall
survive the Closing for a period of one (1) year after the Closing Date . . . .”
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2000), overruled on other grounds by Olson v. Richard, 89 P.3d 31, 31-33, (Nev. 2004).

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Plaintiff has made such a showing with respect to one of its breach of contract claim.

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Regarding the SMA, Plaintiffs allege the existence of an agreement with

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Defendants, whereby Defendants would sell advertising time for Plaintiffs’ radio stations

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in exchange for a commission on the sales. Plaintiffs further allege that Defendants

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breached the SMA by selling advertising time at unacceptable prices, receiving

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payments directly, and withholding revenues from sales, thus harming Plaintiffs. Taking

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Plaintiffs allegations to be true, Plaintiffs have established all the elements of a breach of

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contract claim. Thus, the Court denies the Motion to Dismiss as to claim 7 (breach of the

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SMA).

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Regarding the sublease agreement, Silver State asserts that the sublease was

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entered into as part of the APA, and was subsequently breached when Defendants

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changed the locks on the property and prohibited access. However, Silver State has

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failed to allege that it had first performed its obligations under the contract and was thus

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entitled to performance. Silver State has failed to plead a necessary element for breach

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of contract, and the claim does not rise to the level of plausibility. The Court grants the

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Motion to Dismiss as to claim 2 (breach of the sublease agreement).
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Claims based in Tort

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Defendants assert generally that Plaintiffs’ tort claims fail because they are merely

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reiterations of their contract claims and are barred under the economic loss doctrine.

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The economic loss doctrine “[p]recludes recovery for strictly economic losses in tort.”

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Calloway, 993 P.2d at 1266. However, the doctrine applies only when unintentional tort

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actions are used to recover purely economic losses. See Terracon Consultants Wester,

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Inc. v. Mandalay Resort Group, 206 P.3d 81, 86 (Nev. 2009). Plaintiffs have asserted

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only intentional torts with the exception of negligent misrepresentation, which is not

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barred under the economic loss doctrine, see id. at 88. Thus, Plaintiffs’ tort based claims

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are not barred.

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Defendants also moved to dismiss the tort claims based on individual, claim-

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specific arguments. Alternatively, Defendants have moved for a more definite statement

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on all of the tort claims. The Court will analyze these arguments claim by claim.
a.

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Wrongful Eviction

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In a wrongful eviction suit, a plaintiff may recover the consequential damages

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resulting from an unlawful eviction. See Polk v. Armstrong, 540 P.2d 96, 99 (Nev. 1975).

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Even when tenants have not paid rent, courts have found evictions unlawful where the

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Landlord changes the locks on the leased premise without providing the proper eviction

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notice and procedure. See id. at 97, 99.

Silver State has alleged that Defendants

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changed the locks on the leased property, preventing all access without prior notice or

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legal procedure. Silver State further alleges that, as a result, it suffered damages to its

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business. Defendants argue that this claim may not survive because Plaintiffs have not

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alleged that they paid rent. However, even when a tenant breaches a lease agreement,

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a landlord may not resort to self-help measures to forcibly evict the tenant. Thus,

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assuming Silver State’s allegations to be true, it has stated a plausible claim.

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Defendants’ Motion to Dismiss as to claim 3 (wrongful eviction) is denied. Further, the

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Court finds that the facts pled are not so vague or ambiguous that Defendants could not

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form a response. Thus, the Motion for a More Definite Statement as to this claim is also

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denied.
b.

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Trespass

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Under Nevada law, “[t]o sustain a trespass action, a property right must be shown

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to have been invaded.” Lied v. Clark county, 579 P.2d 171, 173-74 (Nev. 1978) (citing

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Rivers v. Burbank, 13 Nev. 398 (1878)). Silver State has alleged that Defendants

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physically entered their leased property, and removed and damaged personal property.

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Entry onto the leased property is sufficient to show trespass. Thus, the Motion to Dismiss

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as to claim 6 (trespass) is denied. Additionally, even though Plaintiffs have omitted the

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details of the specific property that was taken and the extent of the damage, the

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substance of the claim has been asserted. The Motion for a More Definite Statement as

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to this claim is denied.

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c.

Conversion

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Conversion is “a distinct act of dominion wrongfully exerted over another’s

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personal property in denial of, or inconsistent with his title or rights therein or in

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derogation, exclusion, or defiance of such title or rights.” Evans v. Dean Witter Reynolds,

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Inc., 5 P.3d 1043, 1048 (Nev. 2000) (quoting Wantz v. Redfield, 326 P.2d 413, 414 (Nev.

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1958)). Silver State has asserted that, on at least two occasions, Defendants removed

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Silver State’s property from the leased premise. However, Silver State has failed to

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specify any particular property that was taken. Thus, the claim contains nothing more

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than conclusory statements reciting the elements of the tort of conversion. The Motion to

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Dismiss as to claim 8 (conversion) is granted.

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d.

Tortious Interference with Contractual Relations

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A plaintiff must show the following elements to make a claim for tortious

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interference with contractual relations: “(1) a valid and existing contract; (2) the

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defendant’s knowledge of the contract; (3) intentional acts intended or designed to

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disrupt the contractual relationship; (4) actual disruption of the contract; and (5)

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damages.” Consolidated Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 971 P.2d

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1251, 1255 (Nev. 1998). Silver State alleges that Defendants, through various actions

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caused “national marketing companies” to “cease doing business with [Plaintiffs].”

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However, Plaintiffs do not allege that there was any sort of contractual relationship

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between them and the national marketing companies. Thus, even assuming all Plaintiffs’

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facts as true, the first element of this claim is not met. The claim does not meet the

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12(b)(6) standard; Defendants’ Motion to Dismiss as to this claim is granted.

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e.

Tortious Interference with Economic Advantage

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To make a claim for tortious interference with economic advantage a plaintiff must

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show the following elements: “(1) a prospective contractual relationship between the

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plaintiff and a third party; (2) the defendant’s knowledge of this prospective relationship;
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(3) the intent to harm the plaintiff by preventing the relationship; (4) the absence of

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privilege or justification by the defendant; and, (5) actual harm to the plaintiff as a result

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of the defendant’s conduct.” Consolidated Generator-Nevada, Inc. v. Cummins Engine

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Co., Inc., 971 P.2d 1251, 1255 (Nev. 1998). Silver State alleges that it had prospective

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contractual relationships with prospective advertisers, that Defendants, pursuant to their

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obligations under the SMA, had knowledge of these prospective advertisers and

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intentionally “directed prospective advertisers calling Plaintiffs to Defendants’ own sales

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representatives,” thus causing harm. Plaintiffs further allege that Defendants’ actions

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were taken while Defendants were acting as agents of Plaintiffs, and that Defendants’

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actions resulted in harm to Plaintiffs. Defendants argue that Plaintiffs failed to state a

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claim because the Complaint did not specify any particular potential contractual

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relationship. However, if Defendants were, in fact, stealing sales leads, Plaintiffs would

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not have specific information regarding the parties or contracts. Although scant, Silver

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State has alleged facts that, if assumed true, satisfy all the elements of this claim. The

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Motion to Dismiss as to claim 11 (tortious interference with economic advantage) is

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denied. The Motion for a More Definite Statement as to this claim is also denied.

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f.

Negligent Misrepresentation

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Negligent misrepresentation occurs where “[o]ne who, in the course of his

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business . . . supplies false information for the guidance of others in their business

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transactions.” Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998). Silver

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State alleges that Defendants represented that the property for sale was in complete and

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good working order when it was not. Defendants’ only argument in support of their

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Motion is that this claim, like the claims under the APA, is barred by the terms of the

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contract. However, the Court has determined that the contractual claims are not time-

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barred, thus any argument that the terms of the contract also bar tort claims must fail.

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The Motion to Dismiss claim 13 (negligent misrepresentation) is denied. Further, the

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Court finds that Plaintiffs have sufficiently pled their claim for misrepresentations and

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denies the Motion for a More Definite Statement.
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g.

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Defamation

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“A defamation claim requires demonstrating (1) a false and defamatory statement

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of fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a third

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person; (3) fault, amounting to at least negligence; and (4) actual or presumed

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damages.” Pope v. Motel 6, 114 P.3d 227, 282 (Nev. 2005). Silver State alleges that

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Defendants posted a sign outside the building of the leased property implying a proper

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eviction, which was visible to third parties. Silver State does not allege, however, that the

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defamatory statement itself caused damages, but rather merely asserts the same

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damage alleged under their wrongful eviction claim. Because Silver State has made no

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allegation of damages resulting specifically from the defamation, all the elements have

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not been pleaded. The Court, therefore, grants Defendants’ Motion to Dismiss as to

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Claim 14 (defamation).

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C.

Motion to Strike

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The Court has dismissed all claims that Defendant moved to strike. Thus, the

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Motion is moot, and therefore is denied.

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III.

CONCLUSION

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss as to (1)

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claims 1, 2, 3, 4, 5, 6, 8, 9, 12, 13, 14, 15, 16, 17, and 18 made by Plaintiffs Royce

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International Broadcasting Corporation and Golden State Broadcasting, LLC is

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GRANTED and (2) claims 2, 4, 5, 8, 9, 14, 15, 16, 17, and 18 made by Silver State is

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GRANTED. Because of the liberal pleadings standard, the Court grants leave to amend.

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IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss as to claim 7 and

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11 as alleged by all Plaintiffs is DENIED. Defendants’ Motion to Dismiss as to claims 1,

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3, 6, 12, and 13 as alleged by Silver State is DENIED.

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IT IS FURTHER ORDERED that Defendants’ Motion for a More Definite
Statement is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike is DENIED.

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DATED THIS 12th day of September 2012.

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UNITED STATES DISTRICT JUDGE

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