J & J Sports Productions, Inc. v. Rivera
Filing
28
OPINION AND ORDER: Dish's motion to dismiss 12 is granted as to JAR's third-party contribution claim and denied in all other respects. The parties' requests for oral argument are denied as unnecessary. See formal opinion and order. Signed on 6/18/2014 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
J&J SPORTS PRODUCTIONS, INC.,
a California corporation,
Plaintiff,
v.
JORGE ALBERTO RIVERA, aka
JORGE ALBERTO GALA,
individually dba EL JARRO AZUL
MEXICAN & SALVADORIAN FOOD
FAMILY RESTAURANT,
Defendant.
JORGE ALBERTO RIVERA, aka
JORGE ALBERTO GALA,
individually dba EL JARRO AZUL
MEXICAN & SALVADORIAN FOOD
FAMILY RESTAURANT,
Third-Party Plaintiff,
v.
DISH NETWORK CORPORATION, a
Nevada corporation,
Third-Party Defendant.
Page 1 - OPINION AND ORDER
Case No. 6:13-cv-01996-AA
OPINION AND ORDER
Samuel C. Justice
Law Office of Samuel C. Justice
610 S.W. Alder Street, Suite 1000
Portland, Oregon 97205
Attorney for plaintiff
Robert D. Lowry
Law Firm of Robert D. Lowry
975 Oak Street, Suite 790
Eugene, Oregon 97401
Attorney for defendant/third-party plaintiff
Abby R. Michels
Preg O'Donnell & Gillett, PLLC
222 S.W. Columbia, Suite 1575
Portland, Oregon 97201
Attorney for third-party defendant
AIKEN, Chief Judge:
Third-party defendant Dish Network Corporation (nDish") moves
to dismiss defendant/third-party plaintiff Jorge Alberto Rivera's
(nJAR")
claims
pursuant
reasons
to
discussed below,
Fed.
R.
Civ.
Dish's motion
P.
is
12 (b) (6).
For
the
granted in part
and
denied in part.
BACKGROUND
At some unspecified time, plaintiff J&J Sports Productions,
Inc.
("J&J") purchased the exclusive nationwide television rights
to the "Manny Pacquiao v.
Juan Manual Marquez, WBO Welterweight
Championship" (nFight"). J&J subsequently entered into sublicensing
agreements
regarding
distribution
of
the
Fight
with
various
entities, including Dish, a satellite television service provider.
Thereafter,
JAR
contacted
Dish
to
procure
the
Fight
for
his
restaurant located in Eugene, Oregon.
On
August
26,
2011,
Dish
installed
satellite
television
service at JAR's restaurant and the parties executed a "Digital
Home Advantage Plan" ("Contract"), written in English, pursuant to
which
JAR agreed not
to
Page 2 - OPINION AND ORDER
air the
Fight
to
the
public or
in
a
commercial establishment. See Dish's Mem. in Supp. of Mot. Dismiss
Exs.
1-2. 1 On November 12,
2011,
JAR displayed the Fight at his
restaurant.
On November
8,
2 013,
J&J filed a
complaint
in this Court
against JAR, alleging federal claims pursuant to 47 U.S.C.
and 47 U.S.C.
§
605,
§
553
as well as a conversion claim under Oregon
common law. On February 20, 2014, JAR filed a third-party complaint
against
Dish,
asserting
a
right
to
indemnity
and
contribution
arising out of J&J's underlying conversion claim. On May 2, 2014,
Dish moved to dismiss JAR's third-party claims.
STANDARD OF REVIEW
Where the plaintiff "fails to state a claim upon which relief
can be granted," the court must dismiss the action. Fed. R. Civ. P.
12(b) (6). To survive a motion to dismiss, the complaint must allege
"enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly,
For purposes of a motion to dismiss,
550 U.S. 544, 570
(2007).
the complaint is liberally
construed in favor of the plaintiff and its allegations are taken
as true.
Bare
Rosen v. Walters,
assertions,
however,
719 F.2d 1422,
that
amount
to
1424
(9th Cir.
nothing
more
1983).
than
a
"formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009). Rather, to state a plausible claim for relief, the
complaint "must contain sufficient allegations of underlying facts"
to support its legal conclusions.
1
Starr v.
Baca,
652 F.3d 1202,
Dish appends the Contract and case law to its motion. JAR
does not dispute the authenticity of these documents or object to
their consideration. See JAR's Resp. to Mot. Dismiss 1-2.
Page 3 - OPINION AND ORDER
1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101
(2012).
DISCUSSION
Dish contends that dismissal is warranted because JAR fails to
state a cognizable claim for relief under Oregon law. Specifically,
Dish argues JAR "is primarily liable for [his] intentional actions
and
[therefore]
cannot obtain indemnity from Dish when Dish was
allegedly negligent."
Additionally,
Id.
in Supp.
of Mot.
Dismiss
7.
Dish asserts that JAR cannot "recover contribution
from Dish [because]
injury."
Dish's Mem.
Dish is not liable to Plaintiff for the same
Lastly,
according
to
Dish,
Simply
Satellite,
"an
independent contractor" who "installed all Dish equipment that is
relevant to [JAR's] claims," is a required party under Fed. R. Civ.
P.
I.
19. 2 Id. at 8-9.
Preliminary Matters
Two preliminary issues merit clarification before the Court
reaches the substantive merits of Dish's motion.
A.
New Facts
Via his opposition,
surreply,
and response to this Court's
June 10, 2014, order, JAR seeks to introduce several new facts in
support of his third-party claims. Notably, JAR includes and relies
on the following facts in opposing Dish's motions:
(1)
"Dish acted knowingly and intentionally in selling
2
Dish also argues that dismissal is required because JAR's
"satellite plan was entered into with Dish Network, LLC, not Dish
Network Corporation." Dish's Mem. in Supp. of Mot. Dismiss 7. As
JAR notes, Dish Network, LLC is a wholly-owned subsidiary of Dish
Network Corporation. See Lowry Decl. Ex. 2. Moreover, the case
law that Dish attaches to its motion indicates that any
distinction between Dish Network, LLC and Dish Network
Corporation is legally meaningless in the present context. See
Dish's Mem. in Supp. of Mot. Dismiss Exs. 3-5. The Court finds
this argument without merit and declines to address it further.
Page 4 - OPINION AND ORDER
and arranging for the subject program to
specifically at Rivera's place of business";
be
viewed
(2) "[JAR's wife was] contacted by someone identifying
themselves as a representative of Dish, and that Dish
representative went on to explain in substance that 'an
error had been made' with her Dish account'; that it had
been erroneously 'set up' by Dish in error, as a
'residential'
account;
that
Dish
was
immediately
cancelling it; and that she now needed to set up a
'commercial' account with Dish";
(3) "Defendant/third-Party Plaintiff acknowledges that it
received that three-page [Contract] but also notes the
following: The document [is] written in [English] using
very complex language [but] [JAR's wife] is (Salvadorean)
Spanish-speaking as her primary language and [JAR] barely
speaks any English at all"; and
(4) "Dish clearly understood the severe English-speaking
limitations of [JAR] as its regular billings to [JAR] are
in fact in Spanish."
JAR's Resp. to Mot.
Dismiss 5; JAR's Surreply to Mot.
Dismiss 2;
JAR's Resp. to Ct. Order 2.
The Court notes that JAR's first new assertion is contradicted
by the plain language of his third-party complaint.
Compare JAR's
Resp. to Mot. Dismiss 5 ("Dish acted knowingly and intentionally"),
with Third-Party Compl.
~~
4-5 ("Dish representatives negligently
and with possible damage to Rivera being reasonably foreseeable");
see also Bojorquez v. Wells Fargo Bank, NA, 2013 WL 6055258, *3-4
(D.Or. Nov. 7, 2013)
(disregarding new allegations first raised in
an opposition to a motion to dismiss where, amongst other defects,
"they contradict [ed] plaintiffs' FAC"). JAR would have known at the
time he filed his third-party claims whether Dish's actions were
negligent or intentional. In other words, because his third-party
complaint "uses the word
standard
for
negligence
'negligently'
in
Oregon
and cites the applicable
·foreseeability,"
indemnity claim proceeds under a negligence theory,
Page 5 - OPINION AND ORDER
JAR's
despite his
present assertion to the contrary. Dish's Reply to Mot. Dismiss 2.
Concerning JAR's remaining new allegations,
the third-party
complaint is silent as to these matters, in part because one of the
aforementioned events transpired "literally just a few hours after
Dish's
Reply"
Ordinarily,
was
filed.
JAR's
Surreply
to
Mot.
" [ i] n determining the propriety of a
dismissal,
a
court
may
not
look
beyond
the
Dismiss
2.
Rule 12 (b) ( 6)
complaint
to
a
plaintiff's moving papers." Schneider v. Cal. Dep't of Corr., 151
F.3d 1194, 1197 n.1 (9th Cir. 1998). Nevertheless, given that JAR
expressed an
intent
to
claims are dismissed,
amend the
third-party complaint
combined with the fact
if his
that this case is
slated for judicial settlement, the Court finds that considering
JAR's new allegations promotes judicial economy. Thus,
the Court
considers JAR's new allegations in evaluating Dish's motion, except
to the extent they explicitly contravene his third-party complaint.
B.
Simply Satellite
Where the plaintiff "fail[s] to join a party under Rule 19,"
the court must dismiss the action. Fed. R. Civ. P. 12(b) (7). Fed.
R.
Civ.
P.
19,
in
turn,
"provides
a
three-step
process
for
determining whether the court should dismiss an action for failure
to
join
an
Staffing,
indispensable
Inc.,
2008
WL
party."
2774530,
Dalrada
*2
Fin.
(S.D.Cal.
Corp.
July
v.
16,
All
2008)
(citing United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999)).
First,
the
"necessary."
court
Id.
must
determine
(citations
whether
omitted).
the
Second,
absent
"[i] f
party
is
the absent
party is 'necessary,' the court must determine whether joinder is
'feasible.'" Id.
( citations omitted) . "Finally, if joinder is not
'feasible, '
court must
the
Page 6 - OPINION AND ORDER
decide whether
the
absent
party is
'indispensable,' i.e., whether in 'equity and good conscience' the
action can continue without the party." Id.
The moving party "bear [ s]
support
of
the motion."
( citations omitted) .
the burden in producing evidence
Id.
( citation and
internal
in
quotations
omitted) .
The Court does not find Simply Satellite to be a necessary
party. "[A] party is [not]
'necessary'
[if]
'complete relief' can
be accorded among the existing parties." Shermoen v. United States,
982 F.2d 1312, 1317 (9th Cir. 1992)
(citation omitted). Here, JAR
represents that all of his or his wife's communications concerning
the Fight and the underlying satellite subscription were directly
with Dish.
See Third-Party Compl.
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