United States District Court, E.D. Louisiana
J&J SPORTS PRODUCTION, INC.
OUT IN THE COLD, INC., KEVIN J. LEE, SR. AND GARY C. HERTY
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the defendants' motion to dismiss. For the
following reasons, the motion is DENIED.
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.
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)).
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
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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).
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).
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.
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