DISH Network L.L.C. et al v. Llinas et al

Filing 49

MEMORANDUM AND ORDER re 34 Motion to Dismiss for Failure to State a Claim. The Court GRANTS DISH Network's and NagraStar's motion to dismiss pursuant to Rule 12(b)(6). Consequently, the counterclaim is DISMISSED with prejudice. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 04/20/2018. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DISH NETWORK LLC, et als.,
Plaintiffs,
Civil No. 17-2084 (FAB)

v.
FRANCISCO LLINAS, et als.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before

the

Court

is

plaintiffs

DISH

Network

LLC

(“DISH

Network”) and NagraStar LLC (“NagraStar”)’s motion to dismiss
defendants

Francisco

Llinas

(“Llinas”),

Jormarie

Rivera

(“Rivera”), doing business as FJ Internet Solution’s counterclaim
for abuse of process pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”).

(Docket No. 34.)

For the reasons set

forth below, the Court GRANTS DISH Network and NagraStar’s motion
to dismiss the defendants’ counterclaim.
I.

Background
DISH

Network

and

NagraStar

commenced

this

action

on

August 15, 2017, filing suit against Llinas, Rivera and FJ Internet
Solution pursuant to the Digital Millennium Copyright Act, 17
U.S.C. section 1201(a)(2), the Federal Communications Act, 47
U.S.C.

section

605(a)

and

(e)(4),

and

the

Electronic

Civil No. 17-2084 (FAB)

2

Communications Privacy Act, 18 U.S.C. sections 2511(1)(a) and
2520.

(Docket No. 1.)

provider,

offering

DISH Network is a satellite television

access

to

movies,

sports

and

entertainment programing for a subscription fee.

general

Id. at p. 2.

NagraStar provides DISH Network with smart cards and other security
technologies.
This

Id. at p. 3.

action

stems

from

Llinas,

Rivera,

and

FJ

Internet

Solution’s purported importation and distribution of unauthorized
receivers and related devices.

Id. at p. 5.

DISH Network and

NagraStar aver that these devices function only to circumvent DISH
Network’s security technology.

Id.

By bypassing satellite signal

encryption and other security measures, Llinas, Rivera and FJ
Internet

Solution

allegedly

without authorization.

obtained

DISH

Network

programing

Id.

Llinas and Rivera answered the complaint, and set forth a
counterclaim asserting a single cause of action.

(Docket No. 19.)

Llinas and Rivera allege that DISH Network and NagraStar abused
the legal process by possessing “an ulterior motive, lacking good
faith, [and] for filing this groundless action.”

Id. at p. 17.

DISH Network and NagraStar moved to dismiss the abuse of process
counterclaim, arguing that Llinas and Rivera’s allegations are
deficient pursuant to pleading standard set forth in Federal Rule
of Civil Procedure 8.

Civil No. 17-2084 (FAB)
II.

3

Rule 12(b)(6) Motion to Dismiss Standard
Pursuant to Rule 12(b)(6), defendants may move to dismiss an

action for failure to state a claim upon which relief can be
granted.
motion,

See Fed.R.Civ.P. 12(b)(6).
a

complaint

or

counterclaim

To survive a Rule 12(b)(6)
must

contain

sufficient

factual matter “to state a claim to relief that is plausible on
its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Court must decide whether the complaint alleges sufficient
facts to “raise a right to relief above the speculative level.”
Id. at 555.

In doing so, the Court is “obligated to view the facts

of the complaint in the light most favorable to the plaintiffs,
and to resolve any ambiguities in their favor.”

Ocasio-Hernández

v. Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011).

A complaint

that adequately states a claim may still proceed even if “recovery
is very remote and unlikely.”

Ocasio-Hernández, 640 F.3d at 13

(internal quotation marks and citations omitted).

Civil No. 17-2084 (FAB)

4

III. Discussion
Puerto Rico Law governs this Court’s analysis of the abuse of
process claim. 1

To prevail on an abuse of process claim, Llinas

and Rivera must establish two elements: that DISH Network and
NagraStar (1) possessed a bad motive, and (2) employed the legal
process for an improper, collateral objective.

González-Rucci v.

United States INS, 539 F.3d 66, 71 (1st Cir. 2008) (affirming
dismissal of abuse of process claim because “the record does not
show the requisite bad motive”).

Abuse of process generally

involves the misuse of discovery, subpoenas, attachment, and other
procedures.

Nogueras-Cartagena v. United States, 172 F. Supp. 2d

296, 316 (D.P.R. 2001) (Domínguez, J.) (“[M]alicious prosecution
is used to challenge the whole of a lawsuit while abuse of process
covers the allegedly improper use of legal procedures after a suit
has

been

filed

properly.”)

(internal

citation

omitted).

Ultimately, the proponent of an abuse of process action must prove

1

Subject matter jurisdiction exists in the underlying complaint because DISH
Network and NagraStar assert claims pursuant to the following federal statutes:
the Digital Millennium Copyright Act, the Federal Communications Act, and the
Electronic Communications Privacy Act. See 28 U.S.C. § 1331. Exercise of this
Court’s supplemental jurisdiction over the abuse of process claim, a cause of
action rooted in Puerto Rico law, is appropriate. The abuse of process claim
is “so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy.”
28 U.S.C. § 1367(a); see
Ortiz-Bonilla v. Federación de Ajedrez de P.R., Inc., 734 F.3d 28, 35 (1st Cir.
2013) (“A federal court that exercises federal question jurisdiction over a
single claim may also assert supplemental jurisdiction over all state-law claims
that arise from the same nucleus of operative facts.”)
(internal quotation
marks omitted).

Civil No. 17-2084 (FAB)

5

ulterior motive and an abusive act.

See Boschette v. Bach, 916 F.

Supp. 91, 97 (D.P.R. 1996) (“An act of abuse cannot be inferred
from evidence of motive alone.”).
Llinas and Rivera premise their abuse of process counterclaim
on DISH Network and NagraStar’s “filing [of] an action [. . .]
which they knew was meritless.”

(Docket No. 19 at p. 17.)

Filing

of the complaint is the only allegation tethering DISH Network and
NagraStar to the abuse of process cause of action.

Id.

Llinas

and Rivera claim that DISH Network and NagraStar lacked good faith,
and “acted willfully and intentionally.”
remaining

allegations

are

conclusory

Id. at pp. 15-18.
and

detail

the

The

alleged

damages arising from the counterclaim.
The allegations in the counterclaim fail to state a claim for
abuse of process.

In Simon v. Navon, the First Circuit Court of

Appeals held that the “[f]iling of a lawsuit is a regular use of
process, and therefore, may not on its own fulfill the requirement
of an abusive act, even if the decision to sue was influenced by
a wrongful motive, purpose or intent.”

71 F.3d 9, 16 (1st Cir.

1995) (holding that “a showing of bad motive in connection with
‘regular’ process is not enough” to sustain an abuse of process
claim).

Llinas and Rivera fail to identify an abusive act, such

as an improper issuance of a subpoena or discovery request.

See

Redmond v. Yachting Solutions, LLC, No. 17-292, 2018 U.S. Dist.

Civil No. 17-2084 (FAB)

6

LEXIS 31470 *5 (D. Me. Feb. 27, 2018) (holding that because “the
abuse of process counterclaim is based on Plaintiff’s filing of
the present lawsuit[, for] this reason, Defendant’s [abuse of
process claim] is DISMISSED”). 2

Other than the filing a civil

action, Llinas and Rivera set forth no additional facts suggesting
that either DISH Network or NagraStar performed an abusive act.
Accordingly,

the

Court

dismisses

the

abuse

of

process

counterclaim. 3
IV.

Conclusion
For

Network’s

the

reasons

and

Rule 12(b)(6).

set

forth

NagraStar’s

above,

motion

(Docket No. 34.)

to

the

Court

dismiss

GRANTS
pursuant

DISH
to

Consequently, the counterclaim

is DISMISSED with prejudice.

2

See, e.g., TeleRep Cribe, Inc. v. Zambrano, 266 F. Supp. 2d 284, 288 (D.P.R.
2003) (Arenas, J.) (dismissing abuse of process claim because “the act of filing
a complaint does not give rise to liability in this jurisdiction”); Beaulieu v.
Bank of Am., No. 14-023, 2014 U.S. Dist. LEXIS 136876 *16 (D. Me. Sept. 29,
2014) (dismissing abuse of process claim pursuant to Rule 12(b)(6) because
“continuing to prosecute the Forfeiture Action after determining that notice
had not been provided” did not constitute an abusive act); OfficeMax, Inc. v.
Sousa, 773 F. Supp. 2d 190, 241 (D. Me. 2011) (granting summary judgment as to
the abuse of process claim because “the filing of a lawsuit alone does not
provide a basis for an abuse of process claim”).
3

DISH Network and NagraStar also move for dismissal pursuant to the NoeerPennington doctrine, first articulated by the United States Supreme Court in
Eastern R. Presidents Conference v. Noerr Moro Freight, Inc., 365 U.S. 127
(1961).
This doctrine “makes petitioning activity immune from antitrust
liability,” subject to a “sham” litigation exception. P.R. Tel Co. v San Juan
Cable LLC, 874 F.3d 767 (1st Cir. 2017) (citation omitted). Because Llinas and
Rivera fail to state a claim pursuant to Rule 12(b)(6), the Court need not
address the applicability of the Noerr Pennington doctrine.

Civil No. 17-2084 (FAB)

7

Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, April 20, 2018.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE