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

849 F. Supp. 2d 586, 2012 WL 346649, 2012 U.S. Dist. LEXIS 11916
CourtDistrict Court, D. Maryland
DecidedFebruary 1, 2012
DocketCivil Action No. ELH-11-3345
StatusPublished
Cited by25 cases

This text of 849 F. Supp. 2d 586 (J & J Sports Productions, Inc. v. Mayrealii, LLC) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J & J Sports Productions, Inc. v. Mayrealii, LLC, 849 F. Supp. 2d 586, 2012 WL 346649, 2012 U.S. Dist. LEXIS 11916 (D. Md. 2012).

Opinion

[587]*587MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

This Memorandum Opinion resolves the motions to dismiss (“Motions”) filed by defendants Mayrealll, 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. May-real 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. ¶ 72 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 docu[588]*588merits attached 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 plaintiffs 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 [589]*589ultimately 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.,

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849 F. Supp. 2d 586, 2012 WL 346649, 2012 U.S. Dist. LEXIS 11916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-j-sports-productions-inc-v-mayrealii-llc-mdd-2012.