J&J Sports Prods., Inc. v. Rivera
| Decision Date | 18 June 2014 |
| Docket Number | Case No. 6:13-cv-01996-AA |
| Court | U.S. District Court — District of Oregon |
| Parties | J&J SPORTS PRODUCTIONS, INC., a California corporation, Plaintiff, v. JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Defendant. JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Third-Party Plaintiff, v. DISH NETWORK CORPORATION, a Nevada corporation, Third-Party Defendant. |
Samuel C. Justice
Law Office of Samuel C. Justice
Attorney for plaintiff
Law Firm of Robert D. Lowry
Attorney for defendant/third-party plaintiff
Abby R. Michels
Preg O'Donnell & Gillett, PLLC
Attorney for third-party defendant
Third-party defendant Dish Network Corporation ("Dish") moves to dismiss defendant/third-party plaintiff Jorge Alberto Rivera's ("JAR") claims pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, Dish's motion is granted in part and denied in part.
At some unspecified time, plaintiff J&J Sports Productions, Inc. ("J&J") purchased the exclusive nationwide television rights to the "Manny Pacquiao v. Juan Manual Marquez, WBO Welterweight Championship" ("Fight"). J&J subsequently entered into sublicensing agreements regarding distribution of the Fight with various entities, including Dish, a satellite television service provider. Thereafter, JAR contacted Dish to procure the Fight for his restaurant located in Eugene, Oregon.
On August 26, 2011, Dish installed satellite television service at JAR's restaurant and the parties executed a "Digital Home Advantage Plan" ("Contract"), written in English, pursuant to which JAR agreed not to air the Fight to the public or in acommercial establishment. See Dish's Mem. in Supp. of Mot. Dismiss Exs. 1-2.1 On November 12, 2011, JAR displayed the Fight at his restaurant.
On November 8, 2013, J&J filed a complaint in this Court against JAR, alleging federal claims pursuant to 47 U.S.C. § 553 and 47 U.S.C. § 605, as well as a conversion claim under Oregon common law. On February 20, 2014, JAR filed a third-party complaint against Dish, asserting a right to indemnity and contribution arising out of J&J's underlying conversion claim. On May 2, 2014, Dish moved to dismiss JAR's third-party claims.
Where the plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Igbal, 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca, 652 F.3d 1202,1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
Dish contends that dismissal is warranted because JAR fails to state a cognizable claim for relief under Oregon law. Specifically, Dish argues JAR "is primarily liable for [his] intentional actions and [therefore] cannot obtain indemnity from Dish when Dish was allegedly negligent." Dish's Mem. in Supp. of Mot. Dismiss 7. Additionally, Dish asserts that JAR cannot "recover contribution from Dish [because] Dish is not liable to Plaintiff for the same injury." Id. Lastly, according to Dish, Simply Satellite, "an independent contractor" who "installed all Dish equipment that is relevant to [JAR's] claims," is a required party under Fed. R. Civ. P. 19.2 Id. at 8-9.
Two preliminary issues merit clarification before the Court reaches the substantive merits of Dish's motion.
Via his opposition, surreply, and response to this Court's June 10, 2014, order, JAR seeks to introduce several new facts in support of his third-party claims. Notably, JAR includes and relies on the following facts in opposing Dish's motions:
(1) "Dish acted knowingly and intentionally in sellingand arranging for the subject program to be viewed specifically at Rivera's place of business";
(2) "[JAR's wife was] contacted by someone identifying themselves as a representative of Dish, and that Dish representative went on to explain in substance that 'an error had been made' with her Dish account'; that it had been erroneously 'set up' by Dish in error, as a 'residential' account; that Dish was immediately cancelling it; and that she now needed to set up a 'commercial' account with Dish";
(3) "Defendant/third-Party Plaintiff acknowledges that it received that three-page [Contract] but also notes the following: The document [is] written in [English] using very complex language [but] [JAR's wife] is (Salvadorean) Spanish-speaking as her primary language and [JAR] barely speaks any English at all"; and
(4) "Dish clearly understood the severe English-speaking limitations of [JAR] as its regular billings to [JAR] are in fact in Spanish."
JAR's Resp. to Mot. Dismiss 5; JAR's Surreply to Mot. Dismiss 2; JAR's Resp. to Ct. Order 2.
The Court notes that JAR's first new assertion is contradicted by the plain language of his third-party complaint. Compare JAR's Resp. to Mot. Dismiss 5 ("Dish acted knowingly and intentionally"), with Third-Party Compl. ¶¶ 4-5 (); see also Boiorquez v. Wells Fargo Bank, NA, 2013 WL 6055258, *3-4 (D.Or. Nov. 7, 2013) (). JAR would have known at the time he filed his third-party claims whether Dish's actions were negligent or intentional. In other words, because his third-party complaint "uses the word 'negligently' and cites the applicable standard for negligence in Oregon - foreseeability," JAR's indemnity claim proceeds under a negligence theory, despite hispresent assertion to the contrary. Dish's Reply to Mot. Dismiss 2.
Concerning JAR's remaining new allegations, the third-party complaint is silent as to these matters, in part because one of the aforementioned events transpired "literally just a few hours after Dish's Reply" was filed. JAR's Surreply to Mot. Dismiss 2. Ordinarily, "[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers." Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Nevertheless, given that JAR expressed an intent to amend the third-party complaint if his claims are dismissed, combined with the fact that this case is slated for judicial settlement, the Court finds that considering JAR's new allegations promotes judicial economy. Thus, the Court considers JAR's new allegations in evaluating Dish's motion, except to the extent they explicitly contravene his third-party complaint.
Where the plaintiff "fail[s] to join a party under Rule 19," the court must dismiss the action. Fed. R. Civ. P. 12(b)(7). Fed. R. Civ. P. 19, in turn, "provides a three-step process for determining whether the court should dismiss an action for failure to join an indispensable party." Dalrada Fin. Corp. v. All Staffing, Inc., 2008 WL 2774530, *2 (S.D.Cal. July 16, 2008) (citing United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999)). First, the court must determine whether the absent party is "necessary." Id. (citations omitted). Second, "[i]f the absent party is 'necessary,' the court must determine whether joinder is 'feasible.'" Id. (citations omitted). "Finally, if joinder is not 'feasible,' the court must decide whether the absent party is'indispensable,' i.e., whether in 'equity and good conscience' the action can continue without the party." Id. (citations omitted). The moving party "bear[s] the burden in producing evidence in support of the motion." Id. (citation and internal quotations omitted).
The Court does not find Simply Satellite to be a necessary party. "[A] party is [not] 'necessary' [if] 'complete relief can be accorded among the existing parties." Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992) (citation omitted). Here, JAR represents that all of his or his wife's communications concerning the Fight and the underlying satellite subscription were directly with Dish. See Third-Party Compl. ¶¶ 4-5; JAR's Resp. to Mot. Dismiss 1-2. Indeed, according to JAR, Dish recently acknowledged its mistake in establishing a residential, as opposed to a commercial, account at his restaurant. See JAR's Surreply to Mot. Dismiss 2. Further, the Contract was unambiguously executed between Dish and JAR's wife and agent. See Dish's Mem. in Supp. of Mot. Dismiss Ex. 1.
The Court recognizes that Dish disputes whether and to what extent it was involved in the provision of satellite services to JAR's commercial establishment. See Dish's Reply to Mot. Dismiss 6 ("[JAR] did not contact Dish to set up [his] satellite plan or programming for the fight, [he] contacted Simply Satellite"); Werner Decl. ¶ 3 (). The Court, however, must accept JAR's well-pleaded allegations as true, as well as refrain from making credibility determinations, at this stage in the proceedings. Moreover, the fact remains that, beyond introducingconclusory declarations that "Simply Satellite is an independent contractor for Dish," Dish neglected to set...
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