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J & J Sports Productions, Inc. v. Garcia

United States District Court, D. Oregon

December 6, 2017

J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
ELIZABETH SONIA GARCIA; JOSE DE JESUS ANGULO GUZMAN; and EL AGAVE GRILL RESTAURANT, LLC, and Oregon limited liability company, Defendants. ELIZABETH SONIA GARCIA; JOSE DE JESUS ANGULO GUZMAN; and EL AGAVE GRILL RESTAURANT, LLC, and Oregon limited liability company, Third-Party Plaintiffs,
v.
DISH NETWORK LLC, Third-Party Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE.

         Third-party defendant Dish Network LLC (“Dish”) moves to dismiss the claims of defendants/third-party plaintiffs El Agave Grill Restaurant, LLC (“Agave”), Elizabeth Sonia Garcia, and Jose De Jesus Angulo Guzman (collectively “defendants”) pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Dish's motion should be granted.

         BACKGROUND

         At some unspecified time, plaintiff J&J Sports Productions, Inc. (“J&J”) purchased the exclusive nationwide television rights to “‘The Fight of the Century' Floyd Maywether Jr. v. Manny Pacquiao Championship Fight” (“Fight”). Compl. ¶¶ 3, 22 (doc. 1). J&J subsequently entered into sublicensing agreements regarding distribution of the Fight with various entities, including Dish, a satellite television service provider. Id. at ¶ 23; Third-Party Compl. (“TAC”) ¶¶ 2, 6, 16 (doc. 24).

         Defendants purchased contractual satellite televisions services from Dish for Agave, a restaurant located in Woodburn, Oregon. TAC ¶¶ 5-6 (doc. 24). “During the phone calls made to set up this account [Agave] was identified as a restaurant.” Id. at ¶ 6. It was likewise clear from the business address and physical location that Agave was a restaurant. Id.

         On May 2, 2015, defendants ordered from Dish and displayed at Agave the Fight. Id. at ¶¶ 9, 16; Compl. (doc. 1).

         On April 28, 2017, J&J filed a Complaint in this Court against defendants, alleging federal claims pursuant to 47 U.S.C. § 553 and 47 U.S.C. § 605, as well as trespass to chattel under Oregon law. On August 17, 2017, defendants filed a third-party complaint against Dish, asserting the following Oregon common law claims: (1) negligent misrepresentation; (2) negligence; (3) indemnity; and (4) tort of another.[1] TAC ¶¶ 12-31, 35-42 (doc. 24). In addition, defendants allege a federal claim pursuant to the Declaratory Judgement Act, 28 U.S.C. § 2201 et seq. Id. at ¶¶ 32-34. Defendants' third-party claims are premised on the theory that Dish was negligent in setting up Agave's satellite television account and is therefore at fault for any alleged violation of J&J's rights. See generally id. On October 16, 2017, Dish moved to dismiss defendants' third-party claims.

         STANDARD OF REVIEW

         Where the plaintiff “fails to state a claim upon which relief can be granted, ” the action must be dismissed. 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 Atl. 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).

         DISCUSSION

         Dish contends that dismissal is warranted because defendants fail to state a cognizable claim for relief under Oregon or federal law.

         I. Preliminary Issues

         Two preliminary matters must be resolved before reaching the substantive merits of Dish's motion. First, to the extent defendants seek leave to amend via their opposition, defendants' request is denied. See LR 7-1(b) (“[m]otions may not be combined with any response, reply, or other pleading”).

         Second, in support of its motion, Dish attaches its underlying satellite television agreement with defendants. Kitei Decl. Ex. A (doc. 30). These documents specify, in relevant part, that satellite television services were being provided to Guzman “solely for . . . private, non-commercial viewing.” Id. at 1, 3, 6, 10. As such, pursuant to his contracts with Dish, Guzman ...


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