Joe Hand Promotions Inc v. Jorgenson
Filing
25
DECISION AND ORDER signed by Chief Judge William C Griesbach on 11/27/2012 denying 10 Motion for Judgment on the Pleadings. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
Case No. 12-C-0159
DONALD L. JORGENSON, JR.
d/b/a DJ’S MOOSE KNUCKLE LODGE,
Defendant.
DECISION AND ORDER
On February 16, 2012, plaintiff Joe Hand Promotions, Inc. filed this lawsuit against
defendant Donald L. Jorgenson, Jr., doing business as DJ’s Moose Knuckle Lodge. Plaintiff alleges
defendant violated the Communications Act of 1934, 47 U.S.C. § 605, et seq., and the Cable &
Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, et seq.
(collectively, the Federal Communications Act, or “FCA”) by unlawfully intercepting and exhibiting
a televised boxing event.1 Before me now is defendant’s motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). Defendant contends that the complaint should
be dismissed on its face because it is untimely, arguing the two-year statute of limitations in the
1
Plaintiff’s complaint alleges violations of both § 605 and § 553. (Compl. ¶ 24.) According to the plaintiff,
the event was distributed via satellite signal, and was then re-transmitted to cable systems and satellite companies via
satellite signal. (Compl. ¶ 9.) Plaintiff recognizes that defendant can only be liable under one of the statutory sections,
it has not determined whether defendant intercepted plaintiff’s signal via a cable system in violation of § 553 or via a
satellite transmission in violation of § 605. (Compl. ¶ 24.) For the purpose of deciding the instant motion, I will refer
to both sections as the FCA.
Electronic Communications Privacy Act (commonly referred to as the “Wiretap Act”), 18 U.S.C.
§§ 2510-2522, applies to bar the instant action.
The dispute between the parties involves the broadcast of “Ultimate Fighting Championship
108: Rashad Evans v. Thiago Silva.” As alleged in the complaint, plaintiff Joe Hand Promotions,
Inc. was granted exclusive nationwide commercial distribution rights to the event, which was
broadcast on January 2, 2010 via closed circuit television and encrypted satellite signal. (Compl.
¶ 9.) Pursuant to its contractual rights to the event, plaintiff entered into sub-licensing agreements
with various commercial establishments to permit the public exhibition of the event. (Compl. ¶ 10.)
Plaintiff alleges that defendant Donald L. Jorgenson unlawfully intercepted and exhibited the event
at his commercial establishment, DJ’s Moose Knuckle Lodge in Oneida, Wisconsin on January 2,
2010.
LEGAL STANDARD
The standard on a motion for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is the same as the standard for failure to state a claim under Rule12(b)(6). U.S. v.
Wood, 925 F.2d 1580, 1581 (7th Cir. 1991). Rule 12(c) permits a party to move for judgment after
the parties have filed the complaint and answer. N. Ind. Gun & Outdoor Shows, Inc. v. City of South
Bend, 163 F.3d 449, 452 (7th Cir. 1998); see Fed. R. Civ. P. 12(c). “Like Rule 12(b) motions,
courts grant a Rule 12(c) motion only if ‘it appears beyond doubt that the plaintiff cannot prove any
facts that would support his claim for relief.’” N. Ind. Gun, 163 F.3d at 452 (quoting Craigs, Inc.
v. Gen. Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993)).
ANALYSIS
Under the FCA, a person may bring a civil action to recover damages from the unauthorized
receipt or transmission of wire, radio or cable communications. See 47 U.S.C. §§ 553 and 605.
Congress did not specify a statute of limitations for bringing a civil action pursuant to §§ 553 or
605. When a federal statute does not include its own statute of limitations, federal courts are
directed to borrow the forum state’s most analogous statute of limitations. Berger v. AXA Network
LLC, 459 F.3d 804, 808 (7th Cir. 2006) (citing Reed v. United Transp. Union, 488 U.S. 319, 323
(1989)). The rule has “enjoyed sufficient longevity that we may assume that, in enacting remedial
legislation, Congress ordinarily ‘intends by its silence that we borrow state law.’” Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 356 (1991) (quoting Agency Holding Corp.
v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 147 (1987)). As a result, “[r]ooted as it is in the
expectations of Congress, the ‘state-borrowing doctrine’ may not be lightly abandoned.” Lampf,
501 U.S. at 356.
However, a “closely circumscribed exception” to the general rule allows for borrowing from
a federal statute of limitations “when the operation of a state limitations period would frustrate the
policies embraced by the federal enactment.” Lampf, 501 U.S. at 356 (internal quotations omitted).
See also Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367 (1977) (“State legislatures do
not devise their limitations periods with national interests in mind, and it is the duty of the federal
courts to assure that the importation of state law will not frustrate or interfere with the
implementation of national policies.”); Johnson v. Railway Express Agency, 421 U.S. 454, 465
(1975) (“Although state law is our primary guide in this area, it is not, to be sure, our exclusive
guide.”). A court should follow the exception only “when a rule from elsewhere in federal law
clearly provides a closer analogy than available state statutes, and when the federal policies at stake
and the practicalities of litigation make that rule a significantly more appropriate vehicle for
interstitial lawmaking.” Reed v. United Transp. Union, 488 U.S. 319, 324 (1989) (quotations
omitted). Where “a state counterpart provides a limitations period without frustrating consequences,
it is simply beside the point that even a perfectly good federal analogue exists.” North Star, 515
U.S. at 37 (explaining that a federal statute of limitations should be a “secondary lender”). Needless
to say, the judgment as to what statute of limitations should be borrowed is “a delicate one.” Lampf,
501 U.S. at 356.
The Seventh Circuit Court of Appeals has not provided guidance as to what statute of
limitations should be borrowed for claims arising under §§ 553 or 605. See Joe Hand Promotions,
Inc. v. Duede, 09-1320, 2010 WL 1782260 (C.D. Ill. Feb. 16, 2010). The parties propose several
different limitations periods. Defendant argues that the Court should borrow the two-year limitation
period in the Wiretap Act, 18 U.S.C. §§ 2511 and 2512. Plaintiff argues: (1) Wisconsin’s “theft of
satellite cable programming” statute, Wis. Stat. § 943.47, is analogous and the six-year statute of
limitations applicable to it should apply; or (2) if a federal limitations period is appropriate, then the
Court should borrow the three-year limitations period under the Copyright Act, 17 U.S.C. §§ 504505.
Other federal courts have created a patchwork of decisions, borrowing limitations periods
from several different sources for television signal piracy claims under the FCA. See, e.g.,
DirecTV, Inc. v. Webb, 545 F.3d 837 (9th Cir. 2008) (borrowing one-year statute of limitations from
analogous state-law); Kingvision Pay-Per-View Corp. v. 989 Belmont, Inc., 366 F.3d 217 (3d Cir.
2004) (borrowing two-year statute of limitation from analogous state law); DirecTV, Inc. v. Wright,
350 F. Supp. 2d 1049 (N.D. Ga. 2004) (borrowing four-year statute of limitations from analogous
state law); DirecTV, Inc. v. Johnson, No. 03-C-8504, 2004 WL 2011392 (borrowing two-year
statute of limitations from the federal Wiretap Act); In re Cases Filed by DirecTV, Inc., 344 F.
Supp. 2d 647 (D. Ariz. 2004) (same); Prostar v. Massachi, 239 F.3d 669 (5th Cir. 2001) (borrowing
three-year statute of limitations from the federal Copyright Act); Time Warner Cable Nat’l Div. v
Bubacz, 198 F. Supp. 2d 800 (N.D. W.Va. 2001) (same); Entertainment by J & J, Inc. v Tia Maria
Mexican Rest. & Cantina, Inc. 97 F. Supp. 2d 775 (S.D. Tex. 2000) (same).
Defendant argues that federal law should apply in this case because the Wisconsin law
analogous to the FCA does not contain its own statute of limitations. The parties agree that the
closest state-law analogue is Wis. Stat. § 943.47 (Theft of Satellite Cable Programming), which
prohibits the unlawful interception of an encrypted satellite cable program. Because § 943.47 does
not specify a limitations period, defendant maintains the Court would have to apply a statute of
limitations from a state “catch all” provision,2 and consequently, federal law provides a more
appropriate analogue.
Instead, defendant contends that the Court should borrow the statute of limitations from the
federal Wiretap Act, which prohibits the unauthorized interception and use of satellite and other
radio communications. Defendant argues that the Wiretap Act and the FCA overlap and are similar
in purpose and scope–both focus on signal piracy and both have similar remedial structures.
Defendant further asserts that because claims under §§ 553 and 605 involve “purely inter-state
communications,” courts should borrow a federal limitations statute to foster uniformity in dealing
with the multi-state nature of FCA actions. (Def. Br. at 8.) Moreover, while some courts have
2
The parties dispute what state catch all provision should apply. Defendant asserts W is. Stat. § 893.51, which
prescribes a six-year statute of limitations for actions “to recover damages for the wrongful taking, conversion, or
detention of personal property.” Plaintiff in turn contends that W is. Stat. § 893.93(a), which also applies a six-year
statute of limitations for an “action upon a liability created by statute when a different limitation is not prescribed by
law.”
found that the federal Copyright Act and its three-year limitations period provides the best federal
counterpart to §§ 553 and 605, defendant argues this Court should not borrow from the Copyright
Act because the Wiretap Act is more analogous to the issues here, particularly because this case
does not actually concern any copyrights.
It appears that plaintiff’s cause of action will only be barred if the two-year statute of
limitations from the federal Wiretap Act is borrowed in this case, and defendant urges this is the
correct result. Although the Wiretap Act is arguably analogous, defendant has not established that
it provides a “clearly” or “significantly” more appropriate fit than Wisconsin’s theft of satellite cable
programing statute. See Reed, 488 U.S. at 324. Wisconsin’s Theft of Satellite Cable Programming
statute is substantially comparable to § 605–the statutes prohibit the unlawful interception of
encrypted satellite signals, provide for criminal sanctions, provide a civil right of action for statutory
violations, and offer similar damages provisions, including similar types and amounts of damages
depending on whether a violation was willful. The fact that the state statute does not prescribe a
limitations period is irrelevant and does itself frustrate or interfere with federal policy. See Webb,
545 F.3d at 849. Because I find Wis. Stat. § 943.47 is analogous, defendant must establish that
borrowing the statute of limitations from the state law will somehow frustrate the purpose of §§ 553
or 605.
Defendant also asserts that adopting a federal statute of limitations here would promote
nationwide consistency and that borrowing from state law invites the risk of forum shopping. In
North Star, the Court explained that “the practice of adopting state statutes of limitations for federal
causes of action can result in different limitations periods in different States for the same federal
action, and . . . some plaintiffs will canvass the variations and shop around for a forum. But these
are just the costs of the rule itself.” 515 U.S. at 36. In any case, while forum shopping may
generally be a concern, in this case, there is no indication that the plaintiff is exploiting state law
by filing suit here. Rather, the cause of action arose in this state because the single alleged statutory
violation occurred at defendant’s commercial establishment in Oneida, Wisconsin. Likewise,
defendant’s argument that applying a federal statute of limitations would “eliminate the practical
difficulties of litigating” similar claims in multiple states is unpersuasive. (Def. Br. at 9.)
Notwithstanding the fact that plaintiff may have filed similar cases across the country, “apply[ing]
the exception simply for the purpose of streamlining a plaintiff’s litigation efforts” is not a sufficient
reason to abandon the general rule in favor of borrowing a state statute of limitations. Wright, 350
F. Supp. 2d at 1055.
Moreover, while fostering federal uniformity is one argument posited for borrowing a
federal statute, in this case, there is not even a settled federal statute to borrow. Instead, federal
court decisions have been anything but uniform in determining what statute of limitations should
apply to FCA claims. Some courts have borrowed the Wiretap Act’s statute of limitations and some
have borrowed from the Copyright Act. There may be reasonable arguments for borrowing a statute
of limitation from these federal laws, but none are so clear as to supersede the longstanding rule of
borrowing from an analogous state statute where, as here, one exists. Furthermore, “[i]f Congress
intended to provide for a uniform limitations period, it could have explicitly set such a period when
it passed the original act or in any of the four subsequent times it has amended section 605.” Joe
Hand Promotions v. Lott, 971 F. Supp. 1058, 1063 (E.D. La. 1997).3 At the very least, a six-year
3
In addition, Congress passed a “catch-all” federal statute of limitations in 1990. See 28 U.S.C. § 1658(a).
The federal catch-all limitations period is four years, but it only applies to post-1990 federal enactments. Id. Had the
federal catch-all applied to §§ 553 or 605, it too would not have barred plaintiff’s suit from going forward. It appears
that Congress, when taking the opportunity to clarify a limitations period that would apply to a statute such as the one
at issue, has indicated that a four-year statute of limitations is reasonable. Thus, I see even less reason to limit the
statute of limitations to a two-year bar in this case.
state statute of limitations does not appear to frustrate any clearly defined or uniform federal policy.
If a choice is to be made among several suitable options, it seems incongruous to choose a federal
statute of limitations in this case.
Finally, adopting the two-year statute of limitations from the federal Wiretap Act would
violate an important principle governing the construction of statutes of limitation in general, namely,
that “no person's cause of action will be barred unless clearly mandated by the legislature.”
Saunders v. DEC International, Inc., 85 Wis.2d 70, 74, 270 N.W.2d 176, 177 (1978). It is
fundamentally unfair to bar a party’s meritorious claim on the basis of a statute of limitations of
uncertain application, even to the courts that are expected to apply it. See South Milwaukee Savings
Bank v. Barczak, 229 Wis.2d 521, 535, 600 N.W.2d 205, 211 (Ct. App. 1999) (“Absent a clear
legislative mandate, case law instructs that the two-year statute of limitations must be narrowly
construed in favor of plaintiffs to avoid extinguishing otherwise meritorious claims.”). There is also
little need to construe the shorter statute of limitations broadly since the equitable defense of laches
is always available to protect a defendant from prejudice caused by undue delay. Haferman v. St.
Clare Healthcare Foundation, Inc., 2005 WI 171, ¶60, 286 Wis.2d 621, 707 N.W.2d 853.
In sum, Wisconsin’s theft of satellite cable programming statute is analogous to §§ 553 and
605, and applying the six-year statute of limitations applicable to Wis. Stat. § 943.47 does not
undermine the implementation of the FCA. Because state law “provides a limitations period
without frustrating consequences, it is simply beside the point that even a perfectly good federal
analogue exists.” North Star, 515 U.S. at 37. Therefore, plaintiff’s cause of action is not timebarred–the alleged statutory violation occurred on January 2, 2010 and plaintiff filed its complaint
on February 16, 2012, well within the six-year statute of limitations.
CONCLUSION
For the foregoing reasons, plaintiff’s complaint is not untimely. As a result, defendant’s
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c) (ECF No. 10) is DENIED.
Dated this
27th
day of November, 2012.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?