J&J Sports Productions, Inc. v. Orellana et al
Filing
11
ORDER granting in part and denying in part 10 Motion to Strike. Plaintiff's motion to strike Defendant's statute-of-limitations affirmative defense is GRANTED, but its request for an award of costs is DENIED. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
as Broadcast Licensee of the
February 16, 2008 “The Epic
Battle Continues”: Pavlik/
Tylor Event,
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Plaintiff,
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VS.
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(1) FRANCISCO RAMIRO ORELLANA, §
Individually and d/b/a EL FERRI §
a/k/a EL FERRI MEXICAN
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RESTAURANT & BAR, and
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(2) AGUSTINA MONTANO PORTILLO
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a/k/a AUGUSTINA MONTANO
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PORTILLO, Individually and
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d/b/a EL FERRI a/k/a EL FERRI
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MEXICAN RESTAURANT & BAR,
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Defendants.
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CIVIL ACTION H-11-0574
OPINION AND ORDER
Pending before the Court in the above referenced action,
grounded in the Federal Communications Act of 1934, as amended by
the Federal Cable Communications Act of 1984, 47 U.S.C. §§ 553 and
605, and alleging that Defendants willfully intercepted and/or
received the interstate communication of a Super Middleweight
Championship Fight Program, thereby misappropriating Plaintiff J&J
Sports Productions, Inc.’s licensed exhibition of the program and
infringing upon Plaintiff’s exclusive rights to sub-license that
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telecast, is Plaintiff’s motion to strike affirmative defense and
for costs (instrument #10).
No response has been filed.
Plaintiff argues that Defendants’ affirmative defense of
statute of limitations is insufficient as a matter of law and must
be stricken.
Because Defendants misrepresented the applicable
statute of limitations, which is three year, not two, and failed to
disclose binding Fifth Circuit authority,1 Plaintiffs further seek
an award of costs, including a reasonable attorneys’ fees of at
least $1,250.00, for preparation of this motion.
Under Federal Rule of Civil Procedure 12(f),
The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to
the pleading or, if a response is not allowed, within 21
days after being served with the pleading.
Motions to strike are usually viewed with disfavor and rarely
granted since they seek a drastic remedy and are frequently sought
merely to delay.
1st United Telecom, Inc. v. MCI Communications
Services, Inc., Civ. A. No. 3:10-CV-2255-B, 2011 WL 2292265,*1
(N.D. Tex. June 8, 2011).
Such motions should be denied if there
is any question concerning law or fact.
Id.
“[A] Rule 12(f)
motion to dismiss is proper when the defense is insufficient as a
matter of law.” Kaiser Aluminum & Chemical Sales, Inc. v. Avondale
1
The Court notes that there is no requirement that the
Answer to a Complaint cites cases, and indeed, it is rarely done.
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Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982), cert. denied,
459 U.S. 1105 (1983).
The court has considerable discretion
whether to grant a motion to strike.
FDIC v. Niblo, 821 F. Supp.
441, 449 (N.D. Tex. 1993).
The issue of the applicable statute of limitations for an FCA
claim is not simple.
When Congress amended the FCA with the Cable
Act in 1984, Congress did not provide a statue of limitations.
See, e.g., J&J Sports Productions, Inc. v. JWJ Management, Inc.,
324 S.W. 3d 823, 824-25 (Tex. App.--Fort Worth 2020); Kingvision
Pay-Per-View, Ltd. v. Betancourt, Civ. A. No. H-11-0236, 2011 WL
1900166, *2 (S.D. Tex. May 19, 2011)(Lake, J.).
Subsequently,
Congress provided a four-year statute of limitations for civil
suits arising under federal statutes enacted after December 1,
1990, but for those enacted before that date that lacked an
applicable limitations period, the rule was to “‘borrow’ the most
closely analogous state limitations period” or federal limitations
period.
Id.; id., quoting Graham County Soil & Water Conservation
Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005).
widely
differing
responses
from
various
There have been
courts.
See,
e.g.,
DirecTV, Inc. v. Webb, 545 F.3d 837, 847-52 (9th Cir. 2008)(applying
the one-year statute of limitations of the California Piracy Act as
the most closely analogous state law); Kingvision Pay-Per-View,
Ltd. v. 898 Belmont, Inc., 366 F.3d 217 (3d Cir. 2004)(applying the
three-year statute of limitations of Pennsylvania’s cable piracy
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statute); J&J Sports Productions, Inc. v. Jones, No. Civ.-08-0361HE, 2008 WL 4619812, *2 (W.D. Okla. Oct. 16, 2008)(applying twoyear statute of limitations from Oklahoma’s communications piracy
statute, 21 Okla. Stat. § 1737); and In re Cases Filed by DirecTV,
344 F. Supp. 2d 647 (D. Ariz. Nov. 9, 2004)(applying two-year
statute of limitations of the federal Electronic Communications
Privacy Act, 18 U.S.C. §§ 2510-2521).
The United States Supreme
Court has not yet determined the applicable statute of limitations
for claims under the FCA.
Kingvision, 2011 WL 1900166 at *5.
The Court agrees with Plaintiff that in Prostar v. Massachi,
239 F.3d 669, 677-78 (5th Cir. 2001), the United States Court of
Appeals for the Fifth Circuit held that the three-year limitations
period from the federal Copyright Act applies to civil actions
under the FCA because the “the Copyright Act provides the federal
law analogue to . . . FCA claims.”
It did so in the context of
considering analogous causes of action under Louisiana state law,
determining that the closest analogue was Louisiana’s tort of
conversion with a one-year statute of limitations.
Id. at 671,
675-77; Kingvision, 2011 WL 1900166, *5. Opining that “application
of state conversion law in each of the fifty states would result in
widely varying limitations periods” and would require national
cable companies to make different decisions in different states in
investigating
and
pursuing
cable
piracy,
the
Fifth
Circuit
concluded that “a single federal standard would eliminate these
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practical
difficulties.”
Id.
at
677;
id.
at
*5.
That
determination is controlling on this Court
Nevertheless,
in
J&J
Sports
Productions,
Inc.
v.
JWJ
Management, Inc., 324 S.W. 3d 823, alleging the same cause of
action as in this action by the same Plaintiff, the Texas appellate
court concluded it was not bound by the Fifth Circuit’s holding in
Prostar, found a Texas state analogue parallel to the FCA in the
Texas Theft Liability Act, and applied its two-year statute of
limitations to the FCA claim.
Id. at 831.
Clearly this Court is bound by the Fifth Circuit’s holding in
Prostar.
affirmative
Thus in its discretion it will strike Defendants’
defense
of
a
two-year
statute
of
limitations
affirmative defense as insufficient as a matter of law in the
Fifth Circuit.
Nevertheless, it does not find that the assertion
of that incorrect period so serious an offense as to warrant an
award of costs, including fees, especially to counsel of a party
that has been frequently involved in that issue in suits around the
country and which must be very familiar with the law in multiple
jurisdictions.
Accordingly, the Court
ORDERS that Plaintiff’s motion to strike Defendants’ statuteof-limitations affirmative defense is GRANTED, but its request for
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an award of costs is DENIED (#10).
SIGNED at Houston, Texas, this
22nd
day of
July , 2011.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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