PPV Connection, Inc. v. Cuevas-Nieves et al

Filing 26

OPINION AND ORDER noting 25 Motion In Compliance with Order to Show Cause; granting in part 24 MOTION for Default Entry. Default shall be entered as to co-defendant Leonel Cuevas-Nieves, and all claims against against all co-defentants besides Cuevas-Nieves are hereby DISMISSED without prejudice. Signed by Judge Salvador E Casellas on 1/20/2010.(THD)

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO P P V CONNECTION, INC. Plaintiff v. L E O N E L CUEVAS-NIEVES, et al C iv il No. 09-1460

OPINION & ORDER T h e present action was brought by Plaintiff, PPV Connection, Inc.'s (hereinafter " P P V C " ), against numerous and unrelated co-defendants. After reviewing the Complaint, this C o u rt ordered PPVC to show cause why the present action should not be dismissed against all b u t the named co-defendant, for improper joinder. Docket # 9. PPVC duly responded to this C o u rt´s Order to Show Cause. Docket # 25. After considering PPVC´s response, and the a p p lic a b le law, all claims shall be dismissed without prejudice against all co-defendants, except th e first named co-defendant, Leonel Cuevas-Nieves ("Cuevas-Nieves"). Factual Background P P V C has joined eighteen sets of defendants in the present law suit. Over the past five a n d a half years, PPVC has initiated thirty (30) nearly identical cases in the District of Puerto R ic o , each alleging that similarly large sets of defendants violated PPVC's "exclusive license to distribute for commercial gain the closed circuit broadcast of [specified boxing events] to v a rio u s business establishments throughout Puerto Rico." See, e.g., Docket # 1 at ¶ 8. These d e f e n d a n ts are alleged to have violated said license by "willfully intercept[ing] and/or re c e iv [ in g ] the interstate communication of [the given boxing event]" without "payment of the a p p ro p ria te fee to PPVC." See, e.g., id. at ¶¶ 14 & 16. In each case, PPVC thereby seeks

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re c o v e ry pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§ 553 and 605. S e e , e.g., id. at ¶1. For the most part, these cases have been disposed of through some combination of s e ttle m e n ts (see, e.g., PPV Connection, Inc. v. Colon-Velazquez, No. 06-1793, Docket # 4 & 5 ), default judgments (see, e.g., PPV Connection, Inc. v. Acevedo, No. 07-1794, Docket # 12), a n d dismissals for service error (see, e.g., PPV Connection, Inc. v. Hernandez, No. 09-1447, D o c k e t # 23) and failure to prosecute (see, e.g., PPV Connection, Inc. v. Reyes, No. 08-1193 (D .P .R . filed Feb. 3, 2009) (order dismissing complaint against thirteen defendants for failure to prosecute). In one such case, one set of defendants is currently set to go to trial. PPV C o n n e c tio n , Inc. v. Lopez, (No. 07-1796) (Docket # 49). W ith respect to the instant cases, on November 17, 2009, this Court filed an "Order to S h o w Cause," asking PPVC to provide (1) "proof of progress in the claim against [defendants]," (2 ) "proof of timely service of the other parties," and (3) cause as to "why the present action s h o u ld not be dismissed for Improper Joinder under FED.R.CIV.P.20 & 21," Docket # 9. On N o v e m b e r 30, 2009, the deadline imposed by the Court, Plaintiff PPVC filed its "Motion in C o m p lia n c e to Order to Show Cause." Docket # 25. This Court being satisfied with PPVC's s h o w in g as to (1), (2), and (4) above, it remains for this Court to determine whether this action s h o u ld be dismissed for Improper Joinder under FED.R.CIV.P.20 & 21. It should also be noted th a t a summons was served on named co-defendant, Cuevas-Nieves, on August 14, 2009, but s a id party is yet to respond to the complaint. See Docket # 10. Applicable Law & Analysis O f PPVC's twenty-nine similar cases besides the above captioned, the joinder issue has a ris e n in two, neither of which has settled the question directly. PPV Connection, Inc. v. R o d rig u e z , 607 F. Supp. 2d 301, 306 (D.P.R. 2009) (improper joinder as basis for dismissal

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d e c la re d moot); PPV Connection, Inc. v. Pacheco, No.08-1045 (D.P.R. filed Jan. 11, 2008) (R e p o rt and Recommendation from Magistrate Court on Motion to Dismiss for improper joinder p e n d in g ). However, the present case closely parallels Don King Productions, Inc. v. ColonR o s a rio , 561 F.Supp. 2d 189 (D.P.R. 2008), which held joinder improper where (1) there was n o allegation that defendants acted in concert, (2) the only connection between defendants was th a t they were alleged to have violated the same federal laws against piracy of cable television, (3 ) defendants were likely to present different defenses, and (4) defendants were likely to c o n f ro n t different evidence. Id. at 192. T h o u g h , in addition to this Court, two others within the District of Puerto Rico have a d d re ss e d the possibility that PPVC's joinder of defendants was improper, in no case has the q u e s tio n been settled. See Rodriguez, 607 F. Supp. 2d 301 (D.P.R. 2009); Pacheco, No.08-1045. In Rodriguez and Pacheco, defendants Rivera Rosario and Méndez Piña respectively, each cited im p ro p e r joinder as a basis for dismissal. Motion to Dismiss at 4-6, Rodriguez (No. 08-1046) (D o c k e t # 7); Motion to Dismiss for Improper Joinder under FED.R.CIV.P. 21, Pacheco (No. 081 0 4 5 ) (Docket # 26). Both argued that as "[t]here is no allegation that the[] defendants acted in c o n c e rt or are jointly liable for anything ... [t]he defendants ... have been improperly joined in o n e action." Motion to Dismiss at 4, Rodriguez (No. 08-1046) (Docket # 7); Motion to Dismiss f o r Improper Joinder under FED.R.CIV.P. 21 at 1, Pacheco (No. 08-1045) (Docket # 26). In R o d rig u e z , Judge Besosa never settled the question, instead ruling it moot since, by that stage o f the litigation, no defendants other than the movants remained. 607 F. Supp. 2d at 306. In P a c h e c o , Judge Domínguez referred the issue to Magistrate Court, where no ruling has yet been d e te rm in e d . Order of Referral, Pacheco, No.08-1045 at Docket # 28. N e v e rth e le s s , Don King, which is factually almost indistinguishable from the case at bar, p ro v id e s this Court with the necessary guidance on said issue. There, this Court held that Don

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K in g Productions, Inc. ("DKPI") misjoined thirty-seven (37) defendants in violation of F ED.R .C IV.P . 20, which only allows defendants to "be joined in one action" when: (A ) any right to relief is asserted against them jointly, severally, or in the a lte rn a tiv e with respect to or arising out of the same transaction, occurrence, or s e rie s of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the a c tio n . In Don King, whether the defendants were properly joined hinged upon the "transactional re la te d n e s s " requirement. Don King, 561 F.Supp.2d at 191. The opinion explained that: (1) the d e f e n d a n ts were not alleged to have "acted in concert," that (2) "[t]he only connection between th e m [was] that they each allegedly violated provisions of federal law relating to piracy of cable te le v isio n ," and that (3) they were likely to have different defenses and (4) face different e v id e n c e . This Court then found that the alleged "transactions" and "occurrences" lacked the re q u is ite "relatedness." Id. at 192. T h e relevant facts in the instant cases and in Don King are substantially the same.1 DKPI a lle g e d to have a "license for the exclusive exhibition of" the "closed-circuit telecast" of three b o x in g events: (1) the April 17-18, 2004 match between Chris Byrd and Andrew Golota, (2) the O c to b e r 2-3, 2004 match between Felix Tito Trinidad and Ricardo Mayorga, and (3) the D e c e m b e r 14, 2003 match between Bernard Hopkins and Williams Joppy (collectively, "DKPI E v e n ts " ). Don King, 561 F.Supp.2d at 190. Likewise, PPVC alleges to hold "the exclusive lic e n s e to distribute for commercial gain the closed circuit broadcast of [the August 30, 2008 b o x in g match between Ivan Calderon and Hugo Cazares]" ("PPVC Event"). Docket # 1 ¶ ¶ 6

Indeed, moving for higher damages in PPV Connection, Inc. v. Colon, PPVC argued that "this Honorable District C o u r t ... has issued default judgments against defendants in cases under 47 U.S.C. §§ 553 and 605 filed by PPVC or Don K in g Productions, Inc., identical to the instant case . . ." Motion to Alter or Amend Partial Judgment at 11 ¶12, PPV C o n n e c tio n , Inc. v. Colon (No. 06-1793) (emphasis added). Though this motion was filed in February of 2007, prior to the 2 0 0 8 Don King opinion, PPVC clearly refers to a line of DKPI cases into which the Don King opinion falls and characterizes th o s e cases as "identical" to those initiated by PPVC.

1

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& 8. Both entities allege to have been engaged in "contract[ing] with various establishments th ro u g h o u t Puerto Rico and grant[ing] to such establishments the right to broadcast the Event in exchange for a fee." Docket # 1 ¶ 10; Don King, 561 F.Supp.2d at 190 (practically identical la n g u a g e ). In both the instant action and in Don King, PPVC and DKPI each charged approximately tw e n ty (20) defendants with (1) "willfully intercept[ing] and/or receiv[ing] the interstate c o m m u n ic a tio n of the [closed-circuit telecast of specific boxing events]" (Docket # 1 ¶ 14; Don K in g , 561 F.Supp.2d at 190), (2) without paying the requisite fees, and (3) in violation of the e x c lu siv e license rights of each. Docket # 1 ¶ 16; Don King, 561 F.Supp.2d at 190. Moreover, th e strategy of recovery is identical, and based on the Communications Act of 1934, as a m e n d e d , 47 U.S.C. §§ 553 and 605. In its "Motion in Compliance of Order to Show Cause," PPVC seeks to distinguish "the f a c tu a l situation" in the instant cases from that in Don King. Docket # 25 at 6. Though claiming th a t the facts "differ[] significantly," PPVC first points to a procedural distinction­that whereas in Don King defendants moved for dismissal on the basis of improper joinder, at present "no d e f e n d a n t is defending him or herself and there is no dismissal or severance request." Id. H o w e v e r, that the joinder issue was raised by the bench rather than a defendant has no bearing o n whether the joinder was itself proper. Moreover, FED.R.CIV.P. 21 allows that in the event of misjoinder, "[o]n motion or on its own, the court may, at any time, on just terms, add or drop a party." (Emphasis added). As " [ t]h e language `[p]arties may be dropped' essentially means that parties may be dismissed," a court may dismiss parties sua sponte upon a of finding of misjoinder. See DirectTV, Inc. v. B o g g e s s , 300 F. Supp. 2d 444, 450 (S.D.W.V. 2004) ("order[ing] sua sponte the dismissal w ith o u t prejudice of all other defendants in th[e] action except for the first named defendant").

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P P V C next seeks to differentiate Don King from the instant cases by highlighting the fact th a t the defendants in Don King were charged with cable and satellite signal theft "of three d if f e re n t and distinct transmissions broadcasted on three different and distinct dates," namely, th e DKPI Events, whereas the present defendants are all charged with theft relating to the same b o x in g event, the PPVC Event. Docket # 25 at 6. Though failing to engage in any explanation o f the how or why this difference may be significant, PPVC must believe that by resting its c la im upon a single event it has tightened the "transactional relatedness" it needs to satisfy F ED.R .C IV.P . 20. However, given this Court's reasoning in Don King, the fact that in the instant cases all o f the defendants "are alleged to have intercepted the same satellite and/or cable signal of the s a m e live television broadcast on the evening of August 30, 2008," rather than three separate s ig n a ls of three separate broadcasts on three separate nights, bears little relevance to whether th e transactions and occurrences are sufficiently related to render joinder proper pursuant to F ED.R .C IV . P . 20. Docket # 25 at 6. That the charges all relate to the PPVC Event does not c h a n g e the fact that the defendants are not alleged to have acted in concert, or even to have had a n y relationship with each other whatsoever, and hence are likely to avail themselves of d i f f e re n t defenses and to be confronted with different evidence. See Don King, 561 F. Supp. 2 d at 192. Moreover, even though PPVC has limited its charges to those relating to a single boxing e v e n t, it remains true that its "claims against the defendants, `arise out of different, albeit s im ila r, facts.' The only connection between them is that they each allegedly violated provisions o f federal law relating to piracy of cable television." Id. (Quoting DIRECTTV v. Patel, 2003 W L 22669031, at p. 1 (N.D.III.2003) (unpublished)).Given that the similarities between Don

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K in g and the instant cases are such that the factual backgrounds are nearly identical and the le g a l reasoning is directly applicable, this Court sees no reason to apply a different remedy. Clearly then, PPVC improperly joined unrelated defendants. That said, the procedural s ta tu s of the instant cases is such that should this Court enter the partial judgments and default ju d g m e n ts requested by PPVC, "no defendants would be actively defending themselves." D o c k e t # 25 at 5. Thus this Court might, as urged by PPVC, enter such judgments and consider th e joinder issue moot, as did the Rodriguez court. However, as FED.R.CIV.P. 21 expressly a llo w s a court to "add or drop a party," or in other words, to dismiss a party, sua sponte, "at any tim e , on just terms," this Court may also dismiss claims against all defendants save the first n a m e d defendant. See Boggess, 300 F. Supp. 2d at 450. Other district courts have issued sua s p o n te dismissals of this nature. Id., F.Supp.2d 444 (S.D. W.V. 2004); Direct TV, Inc. V. A rm e llin o , 216 F.R.D. 240 (E.D.N.Y. 2003). Furthermore, administrative efficiency and u n if o rm application of the Rules of Civil Procedure dictate a similar course of action. Id., F .S u p p .2 d 444 (S.D. W.V. 2004); Direct TV, Inc. V. Armellino, 216 F.R.D. 240 (E.D.N.Y. 2 0 0 3 ). B e c a u s e this Court finds that all co-defendants, except the first named party CuevasN ie v e s , are improperly joined, it hereby ORDERES the dismissal without prejudice of all c la im s against said parties. The misjoinder of unrelated co-defendants has the effect of creating p ro c e d u ra l irregularities, and the avoidance of court filing fees. Therefore, as in PPV Conection v . Melendez, 09-1454 , Plaintiff is advised that all future claims of this nature must be instituted s e p a ra te ly against individual defendants. Finally, Plaintiff's Motion for Entry of Default is h e re b y granted as to Leonel Cuevas-Nieves d/b/a Acuario Pub & BBQ. C o n c lu s io n

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In light of the above, this Court will DISMISS without prejudice PPVC's claims a g a in s t all co-defendants besides Cuevas-Nieves on the grounds of improper joinder. Default s h a ll be entered by the Clerk of the Court as to Cuevas-Nieves d/b/a Acuario Pub & BBQ. I T IS SO ORDERED. In San Juan, Puerto Rico, this 20 th day of January, 2009. S A L V A D O R E. CASELLAS U n ite d States District Judge