Silver State Broad., LLC v. Beasley FM Acquisition Corp.
| Decision Date | 12 September 2012 |
| Docket Number | Case No. 2:11-cv-01789-MMD-CWH |
| Court | U.S. District Court — District of Nevada |
| Parties | SILVER STATE BROADCASTING, LLC; a Nevada LLC; ROYCE INTERNATIONAL BROADCASTING CORPORATION; a Nevada corporation; GOLDEN STATE BROADCASTING, LLC, a Nevada corporation, Plaintiffs, v. BEASLEY FM ACQUISITION CORPORATION, a Delaware corporation; BEASLEY BROADCASTING OF NEVADA, LLC, a North Carolina limited liability company; WAEC LICENSE LIMITED PARTNERSHIP; a Delaware limited partnership; KJUL LICENSE, LLC, a North Carolina limited liability company; MICHAEL JAY BERGNER dba BERGNER & CO., an individual; et al., Defendants. |
(Defs.' (1) Motion to Dismiss; (2) Motion
to Strike; and (3) Motion for a More
Definite Statement as to the First
Amended Complaint - dkt. no. 5)
I. SUMMARY
Before the Court is Defendants Beasley FM Acquisition Corporation, Beasley Broadcasting of Nevada, LLC, WAEC License Limited Partnership and KJUL License, LLC's (collectively referred to as "Defendants") Motion to Dismiss, Motion to Strike and Motion for a More Definite Statement as to the First Amended Complaint. (Dkt. no. 5.) For reasons discussed below, the Motion to Dismiss is granted in part and denied in part, and the Motion to Strike and the Motion for a More Definite Statement are denied.
II. BACKGROUND
In May 2009, Plaintiff Silver State Broadcasting, LLC ("Silver State") entered into an Asset Purchase Agreement ("APA") with Defendants for the purchase of a radio station and certain assets used in the operation of two other stations. The transaction also included an ancillary sublease for space in Defendants' building, and an alleged Sales and Marketing Agreement ("SMA") under which Defendants would sell advertising time on Plaintiffs' radio stations. Defendant Michael Jay Bergner dba Bergner & Co. brokered the transaction. The closing took place in August 2009. Plaintiffs Royce International Broadcasting Corporation ("Royce") and Golden State Broadcasting LLC ("Golden State") are, respectively, the parent corporation and sister company of Silver State.
Plaintiffs have alleged the following facts. First, sometime after closing, Plaintiffs discovered that the equipment purchased was not in "good and operating condition" as warranted in the APA and Defendants failed to deliver FCC licenses and other property. Second, Defendants sold advertising time on Plaintiffs' radio stations at prices below market rates, received payments for the advertising directly, and withheld the revenue from Plaintiffs. Additionally, Defendants, while acting as agents of Plaintiffs, directed potential customers to Defendants' sales people rather than to Plaintiffs'. Finally, Defendants changed the locks on Plaintiffs' leased space without notice to Plaintiffs or legal process, entered the leased space, and removed personal property, causing damage to Plaintiffs' property. Defendants also posted a sign outside the building, visible to third parties, indicating that Plaintiffs needed to make arrangements to retrieve their property.
Plaintiffs allege eighteen claims: 1) breach of contract under the APA, 2) breach of the sublease agreement, 3) wrongful eviction, 4) specific performance, 5) injunctive relief, 6) trespass, 7) breach of the sales and marketing agreement, 8) conversion, 9) tortious interference with contractual relations, 10) breach of fiduciary duties, 11) tortious interference with economic advantage, 12) breach of warranty, 13) negligentmisrepresentation, 14) defamation, 15) accounting, 16) rescission, 17) respondeat superior, and 18) punitive damages. Defendants' Motion seeks three remedies: dismissal, strike and more definite statement. The Court will address each requested relief in turn below.
III. DISCUSSION
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 697 (internal citation omitted). "Documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 2002) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)).
In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. Second, a district court must consider whether the factual allegations in the complaint allege a plausibleclaim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged— but not shown—that the pleader is entitled to relief." Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, plaintiff's complaint must be dismissed. Twombly, 550 U.S. at 570. Consequently, a complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)).
A motion for a more definite statement should not be granted unless the pleading is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). This liberal standard is consistent with Fed. R. Civ. P. 8(a) which allows pleadings that contain a "short and plain statement of the claim." Motions made under Rule 12(e) are disfavored and rarely granted because of the minimal pleading requirements of the Federal Rules. Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994) (citing In re American Int'l Airways, Inc., 66 B.R. 642, 645 (E.D. Pa. 1986)). Parties are expected to use the discovery process, not pleadings, to learn the specifics of the claims being asserted. Id. Where the substance of a claim has been alleged but some of the details have been omitted, the motion will likely be denied. Boxall v. Sequoia High School Dist., 464 F. Supp. 1104, 1113-14 (N.D. Cal. 1979).
As a preliminary matter, the Court dismisses Plaintiffs' Claims 4 (Specific Performance), 5 (injunctive relief), 15 (accounting), 16 (rescission), and 18 (punitivedamages) as these "claims" are not recognized causes of action but are rather remedies. Under Rule 12(b)(6), a request for a specific remedy is not sufficient "to state a claim upon which relief can be granted." See, e.g., Jensen v. Quality Loan Service Corp., 702 F.Supp.2d 1183, 1201 (E.D. Cal. 2010). The Court emphasizes, however, that despite this dismissal these remedies may still be available to Plaintiffs if they are able to prevail on an independent cause of action.
Additionally, the Court dismisses claim 17, which describes respondeat superior, a legal theory imposing liability on an employer for the actions of an employee. See, e.g., Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996). Respondeat superior is not a valid claim. Moreover, Plaintiffs allege that Defendant Does 1 through 50 and Roes 51 through 100 were "under direction and control of Defendants" and thus Defendants are liable for the actions of the Does and Roes. However, the Complaint fails to detail anything that these Does and Roes allegedly did.
Defendants argue that neither Royce nor Golden State is a real party in interest to the agreements at issue and both lack standing. The Court agrees.
Federal Rule of Civil Procedure 17(a)(1) states that "[a]n action must be prosecuted in the name of the real party in interest." The real party in interest is the party who may maintain the action under the applicable state law. American Triticale, Inc. v. Nytco Serv. Inc., 664 F.2d 1136, 1141 (9th Cir. 1981). Similarly, under the case and controversy requirement of Article III, a plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). Thus, even though its interests may be affected by the litigation, a company may not assert the rights of an affiliate based solely on their shared business interests. E.g., Diesel Systems, Ltd. V. Yip Shing Diesel Engineering Co., Ltd., 861 F.Supp. 179, 181 (E.D.N.Y. 1994).
Neither Royce nor Golden State was a party to the APA or the sublease. Neither...
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