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J&J Sports Productions, Inc. v. CSG Properties, LLC

United States District Court, D. New Jersey

March 31, 2019

CSG PROPERTIES, LLC, et al., Defendants.



         This matter comes before the Court upon Defendants CSG Properties, LLC ("CSG") and Gregory Gilfoil's ("Gilfoil") (collectively, "Defendants") Motion to Dismiss. (ECF No. 10.) Plaintiff J&J Sports Productions, Inc. ("J&J" or "Plaintiff), opposed (ECF No. 11), and Defendants replied (ECF No. 12). The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons set forth below, the Court grants in part and denies in part Defendants' Motion to Dismiss.

         I. Background[1]

         J&J brings claims against CSG, a limited liability company that manages the Venice Restaurant and Bar ("Venice"), an establishment located at 31 West Cottage Street, Bayonne, New Jersey. (Compl. ¶¶ 6-7, ECF No. 1.) J&J also brings claims against Gilfoil, the managing member and registered agent of CSG. (Id. ¶¶ 7-9.) The claims stem from an allegedly unlawful exhibition of a televised boxing match at Venice, specifically the Saul Alvarez versus Amir Khan WBC World Middleweight Championship Fight Program, which was telecast nationwide on May 7, 2016. (Id. ¶¶ 12-20.) Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the Complaint consists of conclusory allegations that fail to state a claim for relief. (Defs.' Moving Br., ECF No. 10-1.)

         II. Legal Standard

         Courts will examine the legal sufficiency of a complaint and may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must "contain sufficient factual matter" that "state[s] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Although a court must accept all factual allegations in the complaint as true, that tenet is "inapplicable to legal conclusions" and a "pleading that offers 'labels and conclusions' or 'formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). In addition, on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the "defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).

         III. Discussion

         Plaintiffs Complaint includes the following six counts: Violation of Title 47 U.S.C. § 605 (Count One); Violation of Title 47 U.S.C. § 553 (Count Two); Common Law Conversion (Count Three); Unlawful Interference with Prospective Economic Advantage (Count Four); Unlawful Interference with Contractual Relations (Count Five); and Unjust Enrichment (Count Six). The Court will address each in turn.

         A. Counts One and Two-Wire Statutes

         With respect to Plaintiffs 47 U.S.C. § 605 claim, Defendants argue that the Third Circuit has constrained application of § 605 "nearly exclusively to radio transmissions." (Defs.' Moving Br. 9 (quoting TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 200 (3d Cir. 2001)).) In addition, Defendants argue that Plaintiffs § 553 claim must be dismissed because Plaintiff failed to allege facts supporting the means of theft of the communication, broadcast of the program, and to whom the broadcast was published. (Defs.' Moving Br. 10.)

         According to Plaintiff, "[t]he Third Circuit has determined that 47 U.S.C. §§ 605 and 553 reach different conduct, with section 605 governing satellite (or radio) violations, and section 553 governing cable violations." (PL's Opp'n Br. 9[2] (citing TKR Cable Co., 267 F.3d at 207).) Plaintiff asserts that pursuant to Federal Rule of Civil Procedure 8(d)(3), the § 553 claim and § 605 claim were brought in the alternative, and that district courts within the Third Circuit have permitted plaintiffs to plead mutually exclusive alternative claims. (Id. at 10-12.) Additionally, Plaintiff cites case law from the Seventh Circuit supporting Plaintiffs ability to plead violations of mutually exclusive statutes. (Id. at 12 (citing United States v. Norris, 88 F.3d 462, 467 (7th Cir. 1996)).) Plaintiff also argues that it has sufficiently pled specific facts to demonstrate entitlement to relief on its statutory claims. (Id. at 12-13.)

         In TKR Cable Co., the Third Circuit explained the difference between the provisions of § 553 and § 605, and precluded the application of § 605 to the sale of decoder boxes to decrypt cable transmissions. 267 F.3d at 200. The Third Circuit cited prior history from the Seventh Circuit, highlighting the requirement that the differing provisions of the act be distinguishable, because "through the Crime Control Act, Congress removed from § 605 of the Communications Act [of 1934] the principal share of its authority over wire communications, leaving § 605 primarily with radio communications."[3] Id. at 200-02.

         While Plaintiff correctly asserts that it may plead alternative claims, each of those claims must be discretely plausible. Here, Plaintiff has failed to plead the applicability of § 605 under Third Circuit case law. The Third Circuit has rejected Plaintiffs attempted interpretation of the statutory provisions "not only because the legislative history accompanying § 553 demonstrates that Congress drafted the provision to deter the newly emergent and previously unaddressed cable piracy, but also because TKR's reading of § 605 would effectively render § 553 superfluous." Id. at 204. Because the Third Circuit has found that Congress intended § 553 to apply in cases of cable piracy, and because Plaintiff does not allege in the Complaint the means of transmission of the cable broadcast, the Court finds good cause to dismiss Plaintiffs § 605 claim without prejudice. The Court denies Defendant's motion with respect to Plaintiffs § 553 claim.

         B. Count ...

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