United States District Court, E.D. Louisiana
J & J SPORTS PRODUCTIONS, INC.
THETA BETA SIGMA CHAPTER OF PHI BETA SIGMA FRATERNITY, INC., ET AL.
ORDER & REASONS
the Court is a motion to dismiss for failure to state a claim
filed by Defendants Zeta Phi Beta Sorority, Incorporated
Alpha Gamma Zeta Chapter; Alpha Gamma Zeta Foundation; and
Mary Carter. R. Doc. 7. Plaintiff J & J Sports
Productions, Inc. opposes. R. Doc. 11. Having considered the
parties' briefs and the applicable law, the Court now
issues this Order & Reasons.
J & J Sports Productions, Inc. (“J&J”), a
distributor of closed circuit pay-per view boxing and special
events, brings this action under The Cable & Television
Consumer Protection and Competition Act, claiming that
Defendants violated J&J's rights as the exclusive
commercial domestic distributor of a televised fight
(“Program”). Defendants include a sorority
chapter, Zeta Phi Beta Sorority, Incorporated Alpha Gamma
Zeta Chapter (“Zeta”); a legal entity formed to
further its mission and purpose, the Alpha Gamma Zeta
Foundation (“A Foundation”) and its President,
Mary Carter (“Carter”); a fraternity chapter,
Theta Beta Sigma Chapter of Phi Beta Sigma Fraternity,
Incorporated (“Theta Beta”); the Theta Beta Sigma
Programs and Housing Foundation; and two of its officers,
William Harris and Dimitri Ashmore.
alleges that Defendants unlawfully intercepted and broadcast
Plaintiff's Program as part of a sorority and fraternity
fundraising event at a venue owned by Bleu Diamond Event
Hall, LLC (“Bleu Diamond”). Plaintiff claims that
Defendants compensated Bleu Diamond, advertised and sold
tickets to the Program, and had the right and ability to
supervise the business and activities of the venue on the
date of the fundraiser - including the unlawful interception
and broadcast of the Program. R. Doc. 1 at 9.
Zeta, A Foundation, and Carter filed a motion to dismiss for
failure to state a claim. R. Doc. 7. Defendants argue that
Plaintiff has offered conclusory allegations that, in light
of an attached affidavit of Defendant Carter, should not be
assumed true. R. Doc. 7-2 at 3. In the affidavit, Carter
asserts that the 12(b)(6) Defendants were not involved with
the showing of Plaintiff's Program and did not have a
legal or business interest in the premises. R. Doc. 7-1 at 2.
objects to Defendants' attempt to use extrinsic evidence
and contends that, in any event, the complaint states a claim
against Defendants. R. Doc. 11-1 at 3, 7.
LAW & ANALYSIS
Federal Rules of Civil Procedure permit a defendant to seek a
dismissal of a complaint based on the “failure to state
a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint should not be dismissed for failure to
state a claim “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 47 (1957).
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, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The district court must construe facts in the light
most favorable to the nonmoving party and must accept as true
all factual allegations contained in the complaint.
Iqbal, 556 U.S. at 678. “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.”
Id. A court “do[es] not accept as true
conclusory allegations, unwarranted factual inferences, or
legal conclusions.” Plotkin v. IP Axess Inc.,
407 F.3d 690, 696 (5th Cir. 2005).
when evaluating a motion to dismiss under Rule 12(b)(6), the
court should not look past the pleadings. But a district
court may, in its discretion, treat a motion to dismiss as a
motion for summary judgment and consider material outside the
pleadings. “When a party bases a motion to dismiss on
matters outside the pleadings, the court has discretion
either to accept the extraneous material and convert the
motion to dismiss into a motion for summary judgment, or to
decide the motion, as defendant styled it, under the
principles of Rule 12(b)(6).” McDonald v. Kansas
City S. Ry. Co., 16-15975, 2017 WL 1709353, at *2 (E.D.
La. May 3, 2017).
Defendants ask the Court to consider an attached affidavit of
Carter purporting to refute allegations of Defendants'
participation in or benefit from the unlawful broadcast of
Plaintiff's program. R. Doc. 7-2 at 3. The Court, in its
discretion, declines to convert Defendants' motion into a
motion for summary judgment. This litigation is in its early
stages and discovery has not yet begun. Because a motion for
summary judgment is premature at this time, the Court
excludes the extraneous evidence and considers
Defendants' motion as a motion to dismiss strictly on the
sued Defendants under (1) 47 U.S.C. § 605, which
prohibits intercepting and publishing radio communication;
(2) 18 U.S.C. § 2511, which prohibits intentional
interception of any wire, oral, or electronic communication,
in connection with § 2520, which creates a private right
of action; and (3) 47 U.S.C. § 553, which prohibits
unauthorized interception or reception of any communications
service offered over a cable system. Plaintiff further
alleges that Defendants willfully and intentionally