J & J Sports Prods., Inc. v. Mayrealii, LLC

• Decision Date: 01 February 2012
• Docket Number: Civil Action No. ELH–11–3345.
• Citation: 849 F.Supp.2d 586
• Parties: J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. MAYREALII, LLC, t/a Mayreal II, LLC, t/a Borinken, t/a Borinken Restaurant & Night Club, et al., Defendants.
• Court: U.S. District Court — District of Maryland

849 F.Supp.2d 586

J & J SPORTS PRODUCTIONS, INC., Plaintiff,

v.MAYREALII, LLC, t/a Mayreal II, LLC, t/a Borinken, t/a Borinken Restaurant & Night Club, et al., Defendants.

Civil Action No. ELH–11–3345.

United States District Court, D. Maryland.

Feb. 1, 2012.

Richard M. Kind, Amy Keller, Law Offices of Kind and Dashoff, Baltimore, MD, for Plaintiff.

William Payne, Payne and Associates PC, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

This Memorandum Opinion resolves the motions to dismiss (“Motions”) filed by defendants MayrealII, LLC, t/a Mayreal II, LLC (“Mayreal”), and Maynard Parker (ECF 11 & 14), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. J & J Sports Productions, Inc. (“J & J”), plaintiff, has filed an Opposition (“Opp.”) (ECF 18) to the Motions.¹ For the reasons that follow, I will grant the Motions in part and deny them in part.

Background

According to its Amended Complaint (ECF 10), J & J enjoyed the “exclusive nationwide television distribution rights” to a nationally televised championship boxing match between Floyd Mayweather, Jr. and Juan Manuel Marquez (the “Program”), which was “telecast nationwide” on the evening of Saturday, September 19, 2009. See Amended Complaint ¶ 9. Mayreal is a business entity trading as Borinken Restaurant & Night Club in Baltimore, Maryland. Id. ¶ 6. Upon information and belief, J & J alleges that Parker and a third defendant, Henry Garcia (who has been served, see ECF 9, but has yet to respond), are “principals and co-owners of the [liquor] license” for Mayreal, and each is an “officer, director, shareholder, employee, agent, and/or other representative” of Mayreal. Id. ¶ 7.² J & J further contends, 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 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.

Along with its Amended Complaint, J & J has submitted an affidavit of an “investigator,” Tarsha Vice, who avers that she was present at Borinken Restaurant & Night Club on September 20, 2009, between 12:35 and 12:45 a.m., and witnessed the “Mayweather VS. Marquez fight” being shown on four televisions in the establishment. See ECF 1–1. However, Ms. Vice's affidavit contains no specific allegations concerning Parker or Garcia.

On the strength of these allegations, J & J levels three counts against the defendants: (1) violation of 47 U.S.C. § 605; (2) violation of 47 U.S.C. § 553; and (3) a common law tort claim for conversion. Mayreal and Parker advance three arguments in their Motions, which I will address in turn.

Discussion

The purpose of a Rule 12(b)(6) motion is “ ‘to test the sufficiency of a complaint.’ ” McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.2010) (citation omitted). “In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documentsattached or incorporated into the complaint” or that are “ ‘integral to and explicitly relied on in the complaint’ [where] there [is] no authenticity challenge.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.2011) (quoting Phillips v. LCI Int'l Inc., 190 F.3d, 609, 618 (4th Cir.1999)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A court decides whether this standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to relief. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir.2011). Dismissal “is inappropriate unless, accepting as true the well-pled facts in the complaint and viewing them in the light most favorable to the plaintiff, the plaintiff is unable to ‘state a claim to relief.’ ” Brockington v. Boykins, 637 F.3d 503, 505–06 (4th Cir.2011) (citation omitted).

A. Double Recovery

Counts I and II of plaintiff's Amended Complaint allege, respectively, violations of sections 605 and 553 of 47 U.S.C., which are provisions of the Federal Cable Act that address different modalities of so-called “cable theft.” Mayreal and Parker describe § 605 as prohibiting “thefts or interceptions of radio communications regardless of whether or not the radio communication is sent out over a cable tv network,” ³ and § 553 as prohibiting “communication thefts or interceptions from a cable network regardless of whether or not the communication originated as a radio broadcast.” Defendants argue that, although the two sections overlap, “a plaintiff cannot recover damages under both sections for the same conduct.” ⁴ Motions at 3. Therefore, they contend: “Since the complaint only alleges a single incident, the Court should dismiss either Count I or Count II.” Motions at 4.

J & J acknowledges that “the prevailing trend is that 47 U.S.C. §§ 605 and 553 reach different conduct, and thus recovery may lie under only one statute.” Opposition at 3. However, plaintiff insists that while “ recovery under both statutes ultimately may not be warranted, at the initial Complaint stage Plaintiff may present alternative forms of relief.” Id. (emphasis in original).

Rule 8(d)(3) of the Federal Rules of Civil Procedure permits a party to “state as many separate claims ... as it has, regardless of consistency.” Therefore, I agree with plaintiff that, although it may ultimately have to choose among the theories of liability on which it will proceed, the alleged inconsistency between Counts I and II is not fatal to either count at the pleading stage. See, e.g., Swedish Civil Aviation Admin. v. Project Mgmt. Enters., Inc., 190 F.Supp.2d 785, 792 (D.Md.2002) (“[A]lthough [plaintiff] may not recover under both contract and quasi-contract theories, it is not barred from pleading these theories in the alternative....”).

B. Individual Liability

Parker contends that the Amended Complaint fails to articulate facts that plausibly allege his individual liability. The parties appear to agree that the standard for individual liability under the Cable Act is that the defendant “had supervision or control over the infringing activities, or that the person reaped some commercial benefit” from the violation. Motions at 4; see also Opp. at 4 (relying upon J & J Sports Productions, Inc. v. L & J Group, LLC, Civ. No. RWT–09–3118, 2010 WL 816719, 2010 U.S.Dist. LEXIS 19550 (D.Md. Mar. 4, 2010), in which the court stated that a Cable Act plaintiff must show that the defendant “ ‘had a right and ability to supervise the violations, and that she had a strong financial interest in such activities' ”) (citation omitted).⁵

In support, Parker cites J & J Sports Productions, Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469 (E.D.N.Y.2009), a Cable Act case in which the district court entered default judgment against a business entity operating a bar, but refused to impose liability on the individual owner of the business entity. There, the plaintiff alleged “that the defendants willfully and unlawfully intercepted and received the signal of the Fight, and then exhibited it to its patrons in the hopes of gaining commercial advantage,” but the complaint's allegation that the individual owned the entity was the “entire extent” of particular allegations against the individual. Id. at 472–73. The court reasoned: “Individual liability under the Cable Act requires that the individual authorize the underlying violations. Put differently, the complaint must establish that the individual had a ‘right and ability to supervise’ the violations, as well as an obvious and direct financial interest in the misconduct.” Id. at 473 (citations omitted). The court observed that “the plaintiff has made no allegation that Mr. Caba was present for the violation, that he authorized or controlled it, or that he reaped commercial profit from it,” and admonished the plaintiff: “To the extent that J & J wishes to assert liability against an individual in the future, it should make adequately detailed allegations in the complaint, beyond the conclusory and vague charge of mere ownership of the offending entity.” Id. at 473.⁶ Parker contends that J & J's allegations of individual liability are deficient in the same manner as in 291 Bar.

Plaintiff acknowledges the holding in 291 Bar, but suggests that I should follow, instead, a ruling to the contrary entered in this district in J & J Sports Productions, Inc. v. L & J Group, LLC, supra, 2010 WL 816719, 2010 U.S.Dist. LEXIS 19950. In L & J Group, the relevant allegations of J & J's complaint were virtually identical to the allegations in the Amended Complaint in this case. The court concluded that “the complaint—although admittedly formulaic—states a claim to relief against each of the individual Defendants that is ‘plausible on its face.’ ” Id. at *2, 2010 U.S.Dist. LEXIS 19950, at *5–6 (quoting Iqbal, supra, 129 S.Ct. at 1949). It reasoned: “Plaintiffs allege[d] that the individual Defendants are principals and co-owners of the license and that they directly unlawfully intercepted and exhibited the Program, or assisted in such activities, for commercial advantage or financial gain. Such allegations are sufficient to survive Defe...