Players Network, Inc. v. Comcast Corporation et al

Filing 52

ORDER Granting 43 Defendants' Motion for Judgment. The following claims are dismissed with prejudice: (1) breach of the implied covenant of good faith and fair dealing insomuch as is premised on an implied contractual obligation that Defen dants utilize dynamic ad insertion; (2) breach of fiduciary duty; (3) tortious breach of implied covenant of good faith and fair dealing; (4) tortious interference with prospective economic advantage; and (5) fraudulent misrepresentation. Signed by Chief Judge Gloria M. Navarro on 8/11/15. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PLAYERS NETWORK, INC.,
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Plaintiff,

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vs.

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COMCAST CORPORATION, et al.,
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Defendants.

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Case No.: 2:14-cv-00238-GMN-GWF
ORDER

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Pending before the Court is the Motion for Judgment on the Pleadings (ECF No. 43)

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filed by Defendants Comcast Corporation, Comcast Programming Development, Inc., and

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), and Defendants filed a Reply (ECF No. 50).

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for Judgment on the Pleadings is

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GRANTED.

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I.

BACKGROUND

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executed between Players Networ

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Inc. (2d Am. Compl.

, ECF No. 1 1). Plaintiff is a Nevada corporation that produces

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Las Vegas ar

(Id. ¶¶ 6, 13 14). Plaintiff alleges that it was approached by Peter Heumiller
Comcast

with a proposed business arrangement in

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2004. (Id. ¶ 16). Plaintiff further alleges that Comcast wanted to develop a channel devoted to

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gaming and the Las Vegas lifestyle

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and Las Vegas lifestyle channel for Comcast. (Id. ¶¶ 20 21). Furthermore, Plaintiff alleges

help build out the new gaming

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that Heumiller and others at Comcast made various representations regarding the development

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of

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getting sponsors and advertisers for the new channel. (Id. ¶¶ 22 30). On October 5, 2005, the

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parties executed the Agreement, memorializing

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channel. (Id. ¶ 37).

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in

new

Plaintiff initially brought the instant suit in the Eighth Judicial District Court for the

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State of Nevada. (See Pet. for Removal, ECF No. 1). On January 20, 2014, Plaintiff filed an

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Amended Complaint, alleging eight causes of action against Defendants: (1) breach of contract;

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(2) breach of the implied covenant of good faith and fair dealing; (3) breach of fiduciary duty;

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(4) tortious breach of the implied covenant of good faith and fair dealing; (5) fraudulent

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inducement; (6) tortious interference with prospective economic gain; (7) breach of a consent

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decree; and (8) declaratory relief. (Am. Compl. ¶¶ 54 87). Defendants properly removed the

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case to this Court. (Pet. for Removal, ECF No. 1).

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On March 5, 2015, Plaintiff filed its Second Amended Complaint, alleging the following

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causes of action against Defendants: (1) breach of contract; (2) breach of the implied covenant

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of good faith and fair dealing; (3) breach of fiduciary duty; (4) tortious breach of the implied

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covenant of good faith and fair dealing; (5) tortious interference with prospective economic

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gain; (6) breach of a consent decree; and (7) fraudulent misrepresentation. (SAC ¶¶ 54 125).

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II.

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LEGAL STANDARD
Federal Rule o

but early enough not to delay trial

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complaint as true, there is no issue of material fact in dispute, and the moving party is entitled
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012).

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cal to analysis under Rule

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12(b)(6) because, under both rules, a court must determine whether the facts alleged in the

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Id.

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In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege

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Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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Id.

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The Court, however, is not required to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action

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with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a

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violation is plausible, not just possible. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

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555).

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III.

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DISCUSSION
a. Breach of the Implied Covenant of Good Faith and Fair Dealing

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a claim for breach of the implied covenant of

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good faith and fair dealing. (SAC ¶¶ 68 88).

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Dismiss, the Court held that Plaintiff had sufficiently pled its claim for breach of the implied

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covenant of good faith and fair dealing with regards to an implied contractual obligation that

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(Order 8:14 23, ECF No.

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36). However, the Court also held that Plaintiff had not pled allegations sufficient to support a

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finding of [dynamic ad insertion] ut

(Id. 8:4 6).

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Agreement was insufficient to support a finding of an implied contractual obligation that

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Defendants utilize dynamic ad insertion. (Id. 8:6 9). Furthermore, the Court held that Plaintiff

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could not rely on representations made prior to the execution of the Agreement because of the

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Id. 8:9 13).

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Moreover, the Court did not grant Plaintiff leave to amend this claim to support a claim

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based on an implied contractual obligation that Defendants utilize dynamic ad insertion. (Id.

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15:24 16:2). However, even if the Court had granted Plaintiff leave to amend this claim,

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Pl

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obligation that Defendants utilize dynamic ad insertion.

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Motion as to this claim and dismisses this claim insomuch as it relates to the implied

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contractual obligation that Defendants utilize dynamic ad insertion.

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upon an implied contractual

b. Breach of Fiduciary Duty

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they owed to Plaintiff. (SAC ¶ 96). Under Delaware law, a contract, in itself, does not impose

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fiduciary duties on the contracting parties. Satellite Fin. Planning Corp. v. First Nat. Bank of

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Wilmington, 633 F.Supp. 386, 401 (D. Del. 1986). However, Plaintiff asserts that,

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[c]oncurrent with the execution of the Contract and by entering into the Contract, the parties

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hereto publically acknowledged and agreed that they had formed a partnership and/or joint

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venture relationship to create and develop the Channel.

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Under Delaware law, a partnership is

the association of 2 or more persons []

to carry on as co-owners a business for profit

202(a) (2010). Furthermore, to

must be (1) a community of interest in the

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performance of a common purpose, (2) joint control or right of control, (3) a joint proprietary

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interest in the subject matter, (4) a right to share in the profits, (5) a duty to share in the losses

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Warren v. Goldfinger Bros., Inc., 414 A.2d 507, 509 (Del. 1980)

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Second Amended Complaint makes conclusory allegations related to a

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partnership or joint venture between the parties. (SAC ¶¶ 91 94). For example, Plaintiff

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ey had a community of

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and agreed to the joint control or right of control of the Channel as set forth in the

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Id. ¶¶ 91 92). However,

nclusory allegations do not support that

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the parties formed a partnership or joint venture. Moreover, the Agreement does not establish

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an intent by the parties to form a partnership or joint venture. (See Agreement, ECF No. 43-1).

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Accordingly, Plaintiff has failed to allege that Defendants owed fiduciary duties to Plaintiff.

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Therefore, the Court finds that Plaintiff has not sufficiently pled a cause of action of breach of

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fiduciary duty

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is claim.

c. Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing

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implied covenant of good faith and fair dealing. (Am. Compl. ¶ 101). Under Nevada law, a tort

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claim for breach of the implied covenant of good faith and fair dealing is only allowed under

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Premiere Digital Access, Inc. v. Central Telephone Co., 360

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F.Supp.2d 1161, 1165 (D. Nev. 2005) (citing Cincinnati Microwave, Inc. v. Wilson, 705

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F.Supp. 1453,

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that involve an unusual element of reliance by one party on the other. Id. These relationships

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include those found in partnerships, insurance contracts, franchise agreements, and between

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employers and employees. Id.

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The tort is generally limited to contractual relationships

Second Amended Complaint does not sufficiently allege

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a partnership or joint venture among the parties. Additionally, the Second Amended Complaint

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does not allege any other type of special relationship between the parties. Therefore, the Court

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finds that Plaintiff has not sufficiently pled a cause of action of tortious breach of the implied

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covenant of good faith and fair dealing

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///

is claim.

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d. Tortious Interference with Prospective Economic Advantage

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Fifth Cause of Action alleges that Defendants interfered with Players

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(SAC ¶ 108). Under Nevada law,
this tort has five elements:

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(1) a prospective contractual relationship between the plaintiff and a
third party; (2) the defendant's knowledge of this prospective
relationship; (3) the intent to harm the plaintiff by preventing the
relationship; (4) the absence of privilege or justification by the
defendant; and, (5) actual harm to the plaintiff as a result of the
defendant's conduct.

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Consol. Generator–Nev., Inc. v. Cummins Engine Co., 971 P.2d 1251, 1255 (Nev. 1998) (per
curiam) (quotation omitted).
Here, Plaintiff makes conclusory allegations related to this claim. (SAC ¶¶ 104 111).

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advertisers and sponsors of the Channel and the programming content created and developed

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for th

Id.
prospective contractual relationships with interested advertisers

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and sponsors of the Channel and the programming content created and developed for the
Id.

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in conclusory fashion. (Id. ¶¶ 107 11). Therefore, the Court finds that Plaintiff has not

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sufficiently pled a cause of action of tortious interference with prospective economic advantage

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is claim.
e. Fraudulent Misrepresentation
In its Second Amended Complaint, Plaintiff brings a new fraudulent misrepresentation

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claim. (SAC ¶¶ 116 25). However, the Court did not grant Plaintiff leave to add new claims

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not included in its Amended Complaint. (Order 15:24 16:2). Thus, the Court grants

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f. Leave to Amend

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Rule 15(a)(2) of the Federal Rules of Civil Proce

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R. Civ. P. 15(a)(2).

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grant leave to amend even if no request to amend the pleading was made, unless it determines

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that the pleading could not possibly be cured by t

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203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.

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1995)).

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Lopez v. Smith,

However, Plaintiff has had an opportunity to amend these claims and has not cured the

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deficiencies identified by the Court. Accordingly, the Court finds that further amendment

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would be futile.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that

Motion for Judgment on the Pleadings

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(ECF No. 43) is GRANTED. The following claims are dismissed with prejudice: (1) breach of

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the implied covenant of good faith and fair dealing insomuch as is premised on an implied

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contractual obligation that Defendants utilize dynamic ad insertion; (2) breach of fiduciary

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duty; (3) tortious breach of the implied covenant of good faith and fair dealing; (4) tortious

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interference with prospective economic advantage; and (5) fraudulent misrepresentation.

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DATED this 11th day of August, 2015.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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