United States District Court, D. Oregon
J&J SPORTS PRODUCTIONS, INC., a California corporation, Plaintiff,
JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Defendant. JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Third-Party Plaintiff,
DISH NETWORK CORPORATION, a Nevada corporation, Third-Party Defendant.
Samuel C. Justice, Law Office of Samuel C. Justice, Portland, Oregon, Attorney for plaintiff.
Robert D. Lowry, Law Firm of Robert D. Lowry, Eugene, Oregon, Attorney for defendant/third-party plaintiff.
Abby R. Michels, Preg O'Donnell & Gillett, PLLC, Portland, Oregon, Attorney for third-party defendant.
OPINION AND ORDER
ANN AIKEN, District Judge.
Third-party defendant Dish Network Corporation ("Dish") moves to dismiss defendant/third-party plaintiff Jorge Alberto Rivera's ("JAR") claims pursuant to Fed.R.Civ.P. 12 (b) (6).For the reasons discussed below, Dish's motion is granted in part and denied in part.
At some unspecified time, plaintiff J&J Sports Productions, Inc. ("J&J") purchased the exclusive nationwide television rights to the "Manny Pacquiao v. Juan Manual Marquez, WBO Welter-weight Championship" ("Fight"). J&J subsequently entered into sublicensing agreements regarding distribution of the Fight with various entities, including Dish, a satellite television service provider. Thereafter, JAR contacted Dish to procure the Fight for his restaurant located in Eugene, Oregon.
On August 26, 2011, Dish installed satellite television service at JAR's restaurant and the parties executed a "Digital Home Advantage Plan" ("Contract"), written in English, pursuant to which JAR agreed not to air the Fight to the public or in a commercial establishment. See Dish's Mem. in Supp. of Mot. Dismiss Exs. 1-2. On November 12, 2011, JAR displayed the Fight at his restaurant.
On November 8, 2013, J&J filed a complaint in this Court against JAR, alleging federal claims pursuant to 47 U.S.C. § 553 and 47 U.S.C. § 605, as well as a conversion claim under Oregon common law. On February 20, 2014, JAR filed a third-party complaint against Dish, asserting a right to indemnity and contribution arising out of J&J's underlying conversion claim. On May 2, 2014, Dish moved to dismiss JAR's third-party claims.
STANDARD OF REVIEW
Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
Dish contends that dismissal is warranted because JAR fails to state a cognizable claim for relief under Oregon law. Specifically, Dish argues JAR "is primarily liable for [his] intentional actions and [therefore] cannot obtain indemnity from Dish when Dish was allegedly negligent." Dish's Mem. in Supp. of Mot. Dismiss 7. Additionally, Dish asserts that JAR cannot "recover contribution from Dish [because] Dish is not liable to Plaintiff for the same injury." Id . Lastly, according to Dish, Simply Satellite, "an independent ...