Joe Hand Promotions, Inc. v. Markho, et al.

Filing 26

Order : Gewarges's motion to dismiss and order him to file an answer to the amended complaint within 30 days of the issuance of this order. (Related Doc # 24 ). Judge Jeffrey J. Helmick on 9/17/2014.(S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Joe Hand Promotions, Inc.,

Case No. 3:13-cv-2024

Plaintiff
v.

ORDER

Christine Markho, et al.,
Defendants

Defendant Johnny Gewarges seeks dismissal of Plaintiff Joe Hand Promotions, Inc.’s claims
against him pursuant to Rule 12(b)(6). (Doc. No. 24). Joe Hand Promotions asserts Gewarges and
the other named defendants violated 47 U.S.C. §§ 605 and 553, and also committed the tort of
conversion, by illegally intercepting and displaying the broadcast of a Ultimate Fighting
Championship bout to which Joe Hand Promotions had been granted exclusive national distribution
rights. (Doc. No. 1). Gewarges asserts Joe Hand Promotions has failed to allege facts sufficient
under Ohio law to pierce the corporate veil of JJ Matzinger, LLC, which operates a business in
Toledo, Ohio, at which Gewarges works and which he allegedly controlled. Joe Hand Promotions
argues I must deny Gewarges’s motion because Ohio corporate veil law does not apply to the
federal statutes at issue or intentional torts such as conversion.
Rule 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Courts must accept as true all of the factual
allegations contained in the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to

dismiss under Rule 12(b)(6), “even though a complaint need not contain ‘detailed’ factual allegations,
its ‘factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.’” Ass'n of Cleveland Fire Fighters v. City of
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
Gewarges’s motion to dismiss fails with regard to the statutory claims because Joe Hand
Promotions’ claims under those statutes seek to hold Gewarges liable for his personal conduct, and
not merely because he allegedly is “the principal, alter ego, officer, director, shareholder, employee,
agent, and/or other representative of Remy’s Gentlemen’s Club,” where the broadcast allegedly was
illegally displayed. (Doc. No. 12 at 3). Joe Hand Promotions alleges Gewarges “regularly exercises
control” over the business and specifically directed the club’s employees to intercept and display the
broadcast. (Id.). State corporate veil law does not apply when the plaintiff seeks to prove the
defendant is liable for the statutory violation due to the defendant’s personal involvement in, and
benefit from, the improper conduct. See, e.g., J&J Sports Prods. v. The Green Plantain, Ltd., No. 1:12-cv337, 2013 WL 3322061, at *4 (S.D. Ohio, July 1, 2013) (individual liability under § 605 requires a
finding the individual authorized the underlying violation); J&J Sports Prods., Inc. v. Ribeiro, 562 F.
Supp. 2d 498, 501 (S.D.N.Y. 2008) (granting default judgment against defendant who had
supervisory control over and received a financial benefit from conduct that violated § 605). Cf. Joe
Hand Promotions, Inc. v. Sharp, 885 F. Supp. 2d 953, 957 (D. Minn. 2012) (granting summary judgment
to defendant because plaintiff merely showed defendant owned the business and failed to show
defendant had “the requisite [supervisory] authority or financial interest to warrant individual
liability” (citation omitted)); Joe Hand Promotions, Inc. v. Jacobson, 874 F. Supp. 2d 1010, 1013-14 (D.
Or. 2012) (declining to pierce the corporate veil and granting summary judgment to defendant
where plaintiff failed to offer proof defendant had personal involvement in illegally showing the
broadcast). Taking its allegations as true, Joe Hand Promotions has adequately stated a claim against
Gewarges individually.

I also deny Gewarges’s motion to dismiss as it relates to the conversion claim. See CarterJones Lumber Co. v. Dixie Distrib. Co., 166 F.3d 840, 846 (6th Cir. 1999) (“Under Ohio law, a corporate
officer can be held personally liable for a tort committed while acting within the scope of his
employment.” (citing Atram v. Star Tool & Die Corp., 581 N.E.2d 1110, 1113 (Ohio Ct. App. 1989)
and Bowes v. Cincinnati Riverfront Coliseum, Inc., 465 N.E.2d 904, 911 (Ohio Ct. App. 1983))); see also
Dehoff v. Vet. Hosp. Operations of Cent. Ohio, Inc., 2003-Ohio-3334, at *15 (Ohio Ct. App., June 26,
2003) (personal liability for tortious conduct not reliant on piercing corporate veil).
For these reasons, I deny Gewarges’s motion to dismiss and order him to file an answer to
the amended complaint within 30 days of the issuance of this order.
So Ordered.

s/ Jeffrey J. Helmick
United States District Judge