United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE.
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.
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).
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.
2, 2015, defendants ordered from Dish and displayed at Agave
the Fight. Id. at ¶¶ 9, 16; Compl. (doc.
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. 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'
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).
contends that dismissal is warranted because defendants fail
to state a cognizable claim for relief under Oregon or
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”).
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 ...