J & J Sports Productions, Inc. v. Tina's S & R Mirage, Inc. et al

Filing 20

ORDER granting 12 Motion for Judgment on the Pleadings. Signed by Magistrate Judge Stephen L. Crocker on 1/25/2019. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

J & J SPORTS PRODUCTIONS, INC.,
OPINION AND ORDER
Plaintiff,
v.

18-cv-223-slc

TINA’S S & R MIRAGE, INC. and CHRISTINA LAPP,
Defendants.
_________________________________________________________________________________________
On March 30, 2018, plaintiff J & J Sports Productions, Inc. filed this civil suit against
defendants Tina’s S & R Mirage, Inc. (“Mirage”) and Christina Lapp, seeking statutory penalties
under 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. Specifically, J & J
Sports alleges that on May 2, 2015, defendants unlawfully intercepted and exhibited the television
broadcast of the “Fight of the Century: Floyd Mayweather, Jr. v. Manny Pacquiao Championship
Fight Program,” for which J & J Sports owned exclusive distribution rights.
Before the court is defendants’ motion for judgment on the pleadings under Fed. R. Civ. P.
12©, in which they argue that J & J’s claims are untimely. Because neither 47 U.S.C. § 553 nor §
605 contain a statute of limitations period, defendants argue that the court must apply the two-year
statute of limitations period under Wisconsin’s catch-all statute of limitations provision for “actions
brought by a private party upon a statute penalty,” Wis. Stat. § 893.93(2)(a), or in the alternative,
the Federal Wiretap Act, 18 U.S.C. § 2520(e). Dkt. 12. I am granting defendants’ motion for
judgment on the pleadings because I conclude that J & J Sports’s claims are barred by the two-year
statute of limitations period set forth in Wis. Stat. § 893.93(2)(a).

OPINION
I. Legal Standard
The parties agree that motion for judgment on the pleadings under Fed. R. Civ. P. 12© is
subject to the same standard as a motion to dismiss under Rule 12(b)(6), which “challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be granted.”
Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). In deciding such a motion,
the court views the complaint in the light most favorable to the non-movant, accepts all well-pleaded
factual allegations as true and draws all reasonable inferences in the non-movant’s favor. Vesely v.
Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).

II. Statute of Limitations
When a federal statute, like those at issue in this case, does not contain its own statute of
limitations, the Supreme Court has instructed that courts must borrow a limitation period from the
forum state’s analogous state law. See Reed v. United Transp. Union, 488 U.S. 319, 323 (1989);
DelCostello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 160 (1983); Berger v. AXA Network LLC, 459
F.3d 804, 808 (7th Cir. 2006). 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, 355 (1991) (quoting Agency
Holding Corp. v. Malley-Duff & Assoc., Inc., 483 U.S. 143, 147 (1987)). “Rooted as it is in the
expectations of Congress, the ‘state-borrowing doctrine’ may not be lightly abandoned.” Id. at 356.
There is a “closely circumscribed exception” to the state-borrowing doctrine “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

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appropriate vehicle for interstitial lawmaking.” Reed, 488 U.S. at 324 (quoting DelCostello, 462 U.S.
at 172). See also Lampf, 501 U.S. at 356 (Court has looked to federal law “when the operation of a
state limitations period would frustrate the policies embraced by the federal enactment”); 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.”).

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 Steel Co. v. Thomas, 515 U.S. 29, 37 (1995) (explaining that federal statute of limitations should
be “secondary lender,” particularly where no interstate transactions are involved).
The Seventh Circuit has not discussed or decided which statute of limitations should apply
to claims arising under 47 U.S.C. §§ 553 or 605. See Joe Hand Promotions, Inc. v. Jorgenson, No.
12-C-0159, 2012 WL 5985485, at *2 (E.D. Wis. Nov. 29, 2012); Joe Hand Promotions, Inc. v. Duede,
09-1320, 2010 WL 1782260 (C.D. Ill. Feb. 16, 2010). “Other federal courts have created a
patchwork of decisions, borrowing limitations periods from several different sources for television
signal piracy claims.” Jorgenson, 2012 WL 5985485, at *2 (citing 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); Prostarv.

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Massachi, 239 F.3d 669 (5th Cir. 2001) (borrowing three-year statute of limitations from the federal
Copyright Act)).
In this case, 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.1 However, because that statute does not specify a limitations period, courts must
look to Wisconsin’s catch-all statute, Wis. Stat. § 893.93, regarding miscellaneous actions. The
parties point to different sections of that statute for the limitations period in this case.
Defendants rely on the two-year limitations period for “[a]n action by a private party upon
a statute penalty,” set forth in Wis. Stat. § 893.93(2)(a) (vers. eff. to Apr. 4, 2018). J & J Sports fails
to address the applicability of subsection (2)(a) and instead relies exclusively on Jorgenson, in which
Judge Griesbach applied the six-year statute of limitations period set forth in former Wis. Stat. §
893.93(1)(a) for an “action upon a liability created by statute.”2 As defendants point out, however,
the parties in Jorgenson did not discuss the two-year statute of limitations period regarding actions
upon statutory penalties, so Judge Griesbach did not address it and instead used the six-year statute

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Defendants argue in the alternative that if I should find that W is. Stat. § 943.47 is inappropriate
to advance the purpose and structure of the Federal Communications Act, then the most analogous federal
statute applicable to the claims in this case is the Federal W iretap Act, 18 U.S.C. § 2520(e), which
provides a two-year statue of limitations. However, because J & J Sports has not challenged defendants’
contention that the state law borrowing doctrine applies in this case, I have not addressed defendants’
arguments regarding the W iretap Act.
2

Although Judge Griesbach cited “§ 893.93(a),” it appears that he meant to refer to “§
893.93(1)(a),” which according to the W isconsin court of appeals, provided a six-year statute of
limitations for a private action upon a statutory liability prior to April 4, 2018. See DJK 59 LLC v. City
of M ilwaukee, 2017 W I App 7, ¶ 30, 895 N.W .2d 103; Krahenbuhl, DDS v. W isconsin Dentistry Examining
Bd., 2004 W I App 147, ¶ 4, 275 W is. 2d 626, 633, 685 N .W .2d 591, 595. Effective April 5, 2018, §
893.93(1)(m) provides a three-year statute of limitations for actions upon a liability created by statute.

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of limitations period applicable to statutes creating a liability. Jorgenson, 2012 WL 5985485, at *3
(reviewing parties’ proposals for analogous laws to apply).
Although the reasoning in Jorgenson is sound as far as it goes, I agree with defendants that the
court in that case did not have the same arguments before it. Both the federal statutes and the
Wisconsin statutes that address the unlawful interception and exhibition of satellite signals provide
for criminal penalties. Therefore, the most closely analogous and most appropriate statute of
limitations in this case is the two-year statute of limitations period applicable to penal statutes in §
893.93(2)(a). Because J & J Sport filed this case on March 30, 2018, more than two years after the
alleged piracy occurred on May 2, 2015, its claims are barred by the applicable statute of limitations.

ORDER
IT IS ORDERED that the motion for judgment on the pleadings filed by defendants Tina’s
S& R Mirage, Inc. and Christina Lapp under Fed. R. Civ. P. 12©, dkt. 12, is GRANTED. The clerk
of court is directed to enter judgment in favor of defendants and close this case.

Entered this 25th day of January, 2019.

BY THE COURT:
/s/
______________________
STEPHEN L. CROCKER
Magistrate Judge

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