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J&J Sports Productions, Inc. v. Out In The Cold, Inc.

United States District Court, E.D. Louisiana

July 13, 2018

J&J SPORTS PRODUCTION, INC.
v.
OUT IN THE COLD, INC., KEVIN J. LEE, SR. AND GARY C. HERTY

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the defendants' motion to dismiss. For the following reasons, the motion is DENIED.

         Background

         J&J Sports Productions, Inc. is a distributor of closed circuit pay-per-view boxing and special events. It received the exclusive nationwide commercial distribution and broadcast rights to a boxing fight between Floyd Mayweather and Manny Pacquiao that took place on May 2, 2015. Out in the Cold, Inc., doing business as Pete's Out in the Cold, is a Louisiana Corporation owned by Kevin Lee and Gary Herty. Pete's Out in the Cold is a bar in New Orleans. On April 28, 2018, J&J sued Out in the Cold, Lee, and Herty, alleging that they unlawfully broadcast the boxing fight at Pete's without permission or paying the sublicense fee. On June 20, 2018, the defendants moved to dismiss the complaint on the basis that it is procedurally time barred.

         I.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for failure to state a claim upon which relief can be granted. Such a motion is rarely granted because it is viewed with disfavor. See Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)(quoting Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)).

         Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         In considering a Rule 12(b)(6) motion, the Court “accept[s] all well-pleaded facts as true and view[s] all facts in the light most favorable to the plaintiff.” See Thompson v. City of Waco, Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But, in deciding whether dismissal is warranted, the Court will not accept as true legal conclusions. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

         To survive dismissal, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations and footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.”). The Court's task “is to determine whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” Thompson v. City of Waco, Texas, 764 F.3d 500, 503 (5th Cir. 2014)(citation omitted). This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678 (internal quotations omitted) (citing Twombly, 550 U.S. at 557). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief'”, thus, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original) (citation omitted).

         II.

         The plaintiff sued under two statutes, the Federal Communications Act, 47 U.S.C. § 151, et seq, and the Federal Wiretap Act, 18 U.S.C. § 2510, et seq. Count 1 is brought under Section 605 of the FCA, and Section 2511 in conjunction with Section 2520 under the FWA. Count 2 is brought under Section 553 of the FCA. Section 605 of the FCA provides a private right of action for the interception and publishing of radio communications. 47 U.S.C. § 605(a), (e)(3)(a). Sections 2511 and 2520 of the FWA provide a private right of action for the interception or reception for any wire, oral, or electronic communications. 18 U.S.C. §§ 2511, 2520. Lastly, Section 553(a)(1) of the FCA provides a private right of action for intercepting or receiving communications offered over a cable system. 47 U.S.C. § 553(a)(1). Two limitation periods are at play.

         A.

         The Fifth Circuit has held that the statute of limitations for an action brought under 47 U.S.C. §§ 553 and 605 of the FCA is three years. Prostar v. Massachi, 239 F.3d 669, 671 (5th Cir. 2001). Because the Federal Communications Act does not provide for a limitations period, the Fifth Circuit has borrowed from the Copyright Act. Id. It provides that “[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). “A copyright claim . . . arises or accrues when an infringing act occurs.” Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962, 1969 (2014). A lawsuit under the FCA is commenced when the complaint is filed. See id. at 1970. Because the alleged interception occurred on May 2, 2015, the FCA infringement claim “accrued” on May 2, 2015, starting the clock on the three-year limitations period. Accordingly, the plaintiff was required to commence the ...


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