J & J Sports Prods., Inc. v. Md. Food & Entm't., LLC
| Decision Date | 24 October 2012 |
| Docket Number | Civil Action No. ELH-11-3344 |
| Court | U.S. District Court — District of Maryland |
| Parties | J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. MARYLAND FOOD & ENTERTAINMENT, LLC, t/a BWX Lounge Courtside Sports Bar, t/a Courtside Sports Bar & Grille, et al., Defendants. |
This Memorandum Opinion resolves the Motion to Dismiss (ECF 14) filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by defendants Maryland Food & Entertainment, LLC, trading as BWX Lounge Courtside Sports Bar as well as Courtside Sports Bar & Grille ("Maryland Food"); Jerry A. Dianis; Judith A. Brown, a/k/a Judith Brown-Dianis; and Lisa Haynes. J & J Sports Productions, Inc. ("J & J"), plaintiff, has filed an Opposition (ECF 15) to the Motion to Dismiss, and defendants have filed a Reply (ECF 16).
In addition, this opinion resolves the motion by defendants' counsel, B. Darren Burns, Esq., to withdraw from representation ("Motion to Withdraw") (ECF 19). No responses have been filed to that motion.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will grant the Motion to Dismiss in part and deny it in part, and will grant the Motion to Withdraw.
According to the complaint (ECF 1), J & J holds, by contract, the "exclusive nationwide television distribution rights" to a high-profile boxing match between Floyd Mayweather, Jr. and Juan Manuel Marquez ("the Program") that was telecast nationwide on Saturday, September 19, 2009. See Complaint ¶ 9. Maryland Food is a business entity trading as the Courtside Sports Bar & Grille in Hanover, Maryland. Id. ¶ 6. J & J alleges, upon information and belief, that Mr. Dianis, Ms. Brown, and Ms. Haynes are "principals and co-owners of the [liquor] license" for Maryland Food and that each is an "officer, director, shareholder, employee, agent, and/or other representative" of Maryland Food. Id. ¶ 7.1 J & J also alleges, id. ¶ 12:
With full knowledge that the Program was not to be intercepted, received or exhibited by entities unauthorized to do so, each and every [one] of the above named Defendants and/or their agents, servants, workmen or employees did unlawfully publish, divulge and exhibit the Program at the time of its transmission at the addresses of their respective establishments . . . . Said unauthorized interception, publication, exhibition and divulgence by each of the Defendants were done willfully and for purposes of direct or indirect commercial advantage or private financial gain.
In addition to its Complaint, J & J has submitted an affidavit of an "investigator," Delanyo Appiah, who avers that he was present at the BWX Lounge Courtside Sports Bar between 11:55 p.m. and 12:06 a.m. on September 19-20, 2009, and he observed that the "Marquez & Mayweather Main Event Fight" was being shown on at least one television in the establishment. See ECF 1-2. However, the affidavit makes no mention of Mr. Dianis, Ms. Brown, or Ms. Haynes, and it contains no allegations with regard to them.
On the strength of these factual allegations, J & J asserts three counts against defendants: violation of 47 U.S.C. § 605 (Count I);2 violation of 47 U.S.C. § 553 (Count II);3 and the common law tort of conversion (Count III). Both of the statutes that defendants allegedly violated are provisions of the Federal Cable Communications Policy Act of 1984, Pub. L. 98-549, 98 Stat. 2780, which is sometimes called the "Cable Act."
Defendants' Motion to Dismiss seeks dismissal of plaintiff's complaint for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court "'must accept as true all of the factual allegations contained in the complaint,'" and must "'draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (). The court may also properly consider documents "attached or incorporated into the complaint." Philips v. Pitt County Memorial Hosp., 572 F.3d176, 180 (4th Cir. 2009); see also E.I. du Pont de Nemours & Co., 637 F.3d at 448. However, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 1740 (2010). Moreover, a motion pursuant to Rule 12(b)(6) "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks omitted).
Whether a complaint states a claim for relief is judged by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007) (citation omitted). To be sure, the plaintiff need not include "detailed factual allegations in order to satisfy" Rule 8(a)(2). Id. at 555. But, the rule demands more than bald accusations or mere speculation. Id. To satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely." Id. at 556. A complaint that provides no more than "labels and conclusions," or "a formulaic recitation of the elements of a cause of action," is insufficient under the Rule. Id. at 555.
Both Twombly, 550 U.S. 544, and Ashcroft v. Iqbal, 556 U.S. 662 (2009), make clear that, in order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; seeIqbal, 556 U.S. at 684 () (citation omitted); see Simmons v. United Mortgage and Loan Inv., 634 F.3d 754, 768 (4th Cir. 2011); Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has not shown that "'the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (citation omitted).
As the parties are aware, this Court recently issued an opinion in a very similar case brought by the same plaintiff against a different business establishment and two individuals who were associated with that business, regarding alleged unauthorized interception of the same Program. See J & J Sports Productions, Inc. v. MayrealII, LLC, 849 F. Supp. 2d 586 (D. Md. 2012) ("Mayreal"). For purposes of the motions to dismiss at issue in Mayreal, I accepted, arguendo, the defendants' characterization of 47 U.S.C. § 605 as prohibiting "'thefts or interceptions of radio communications [including digital satellite television transmissions] regardless of whether or not the radio communication is sent out over a cable tv network,'" and 47 U.S.C. § 553 as prohibiting "'communication thefts or interceptions from a cable network regardless of whether or not the communication originated as a radio broadcast,'" while noting that there is "some dispute in the federal courts as to what particular activities are prohibited under each section and the degree of overlap between them." Mayreal, 849 F. Supp. 2d at 588 & n.4 (quoting defendants' brief) (citing cases).
I rejected the defendants' argument that J & J's Cable Act claims should be dismissed because they were inconsistent with each other, reasoning that Fed. R. Civ. P. 8(d)(3) allows aplaintiff to plead in the alternative, regardless of consistency. Thus, the alleged inconsistency between the Cable Act counts was not fatal at the pleading stage, although I observed that J & J might ultimately be forced to choose which theory of liability it would pursue. See Mayreal, 849 F. Supp. 2d at 588-89.
In addition, I rejected the defendants' claim that the Cable Act counts were defective for failing to allege explicitly the means by which the Program was intercepted. J & J had averred "that the Program was unlawfully intercepted and displayed by Mayreal at its establishment, without authorization from plaintiff, on a particular date and at a particular time." Id. at 594. I held that, given defendants' construction of § 605 and § 553 as prohibiting interception of transmissions sent via radio and cable, respectively, "to the extent that a method of interception must be alleged under plaintiff's Cable Act causes of action, plaintiff has done so by pleading violations of § 605 and § 553 in the alternative." Id.
However, I dismissed J & J's claims against the individual defendants for failure to state a claim. Notably, the allegations as to the individual defendants in this case are virtually identical to the allegations against the individual defendants in Mayreal.4 As in this case, the individual defendants in Mayreal were the resident agent and the liquor licensees of the defendant business entity. See id. at 587 & n.2. Although I acknowledged that "there is a division of authority" among federal district courts considering the sufficiency of allegations of individual liability for Cable Act violations, I found persuasive a line of authority represented by J & J Sports Productions, Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469 (E.D.N.Y. 2009)("291 Bar"), holding...
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