United States District Court, D. Maryland
J&J SPORTS PRODUCTIONS, INC.
PRO STREET SHOP, LLC, t/a Pro Street Café, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.
pending and ready for resolution in this case involving
alleged violations of the Communications Act of 1934 is
Defendants' motion to dismiss. (ECF No. 17). The court
now rules, no hearing being deemed necessary. Local Rule
105.6. For the following reasons, the motion will be denied
in part and granted in part.
J&J Sports Productions, Inc. alleges that Pro Street
Shop, LLC (“Pro Street”) and Randy Richardson,
the managing partner of Pro Street (collectively,
“Defendants”), improperly intercepted and
broadcasted “‘The Fight of the
Century' Floyd Mayweather, Jr. v. Manny Pacquiao
Championship Fight Program” (“the
Program”). Plaintiff purchased “the exclusive
nationwide commercial distribution (closed-circuit)
rights” to the Program, which aired on May 2, 2015.
(ECF No. 1 ¶ 15). After purchasing the distribution
rights, Plaintiff entered into sublicensing agreements with
various commercial establishments to broadcast the match.
(Id. ¶ 16). Plaintiff did not enter into a
sublicensing agreement with Defendants. In an affidavit
attached to Plaintiff's complaint, a private investigator
declared that, on the evening of the broadcast, she entered
Defendants' establishment in Lanham, Maryland and
observed the Program being shown to patrons on multiple
screens. (ECF No. 1-1, at 4). The investigator noted that
Defendants' establishment had a capacity of
“approximately 300 people” and found that there
were over 100 people inside during the
contends that Defendants “unlawfully intercept[ed] . .
. [and] displaye[ed] the Program at the time of its
transmission at [Defendants'] commercial
establishment.” (ECF No. 1 ¶ 18). Additionally,
Plaintiff alleges that Defendant Richardson is liable because
he either directed his employees to “unlawfully
intercept and broadcast” the Program or is vicariously
liable for his employees' conduct because “he had
an obvious and direct financial interest” in the
interception. (Id. ¶ 10).
commenced this action on April 6, 2018, alleging violations
of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 553 and 605. (ECF No. 1). Defendants filed a
motion to dismiss under Fed.R.Civ.P. 12(b)(6) on November 21,
2018, asserting that: (1) the statute of limitations on
Plaintiff's claims has run; and (2) Plaintiff fails to
state a claim against Defendant Richardson. (ECF No. 17).
Plaintiff responded on December 5, 2018 (ECF No. 18), and
Defendants replied on December 19, 2018 (ECF NO. 19).
Standard of Review
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A plaintiff's complaint need only satisfy the
standard of Rule 8(a), which requires a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule
8(a)(2) still requires a ‘showing,' rather than a
blanket assertion, of entitlement to relief.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
That showing must consist of more than “a formulaic
recitation of the elements of a cause of action” or
“naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted).
stage, all well-pleaded allegations in a complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and all factual allegations must be
construed in the light most favorable to the plaintiff,
see Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)). In evaluating the complaint,
unsupported legal allegations need not be accepted.
Revene v. Charles County Comm'rs, 882 F.2d 870,
873 (4th Cir. 1989). Legal conclusions couched as
factual allegations are insufficient, Iqbal, 556
U.S. at 678, as are conclusory factual allegations devoid of
any reference to actual events, see United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th
Cir. 1979). “In deciding a Rule 12(b)(6) motion, the
court will consider the facts stated in the complaint and the
documents attached to the complaint.” Abadian v.
Lee, 117 F.Supp.2d 481, 485 (D.Md. 2000) (citing
Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748,
749 (D.Md. 1997), aff'd, 151 F.3d 180
(4th Cir. 1998)).
motion to dismiss pursuant to 12(b)(6) does not generally
permit an analysis of potential defenses a defendant may have
to the asserted claims. However, dismissal may be appropriate
when a meritorious affirmative defense is clear from the face
of the complaint. Brooks v. City of Winston-Salem,
85 F.3d 178, 181 (4thCir. 1996) (citing
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 250 (4th Cir. 1993)). “The
statute of limitations is an affirmative defense that should
only be employed to dismiss claims pursuant to Rule 12(b)(6)
when it is clear from the face of the complaint that the
claims are time barred.” Long v. Welch & Rushe,
Inc., 28 F.Supp.3d 446, 456 (D.Md. 2014) (citations
omitted); see also 5A Charles A. Wright & Arthur
R. Miller, Federal Practice & Procedure § 1357, at
352 (3d ed. 2019) (“A complaint showing that
the governing statute of limitations has run on the
plaintiff's claim for relief is the most common situation
in which the affirmative defense appears on the face of the
pleading[, ]” rendering dismissal appropriate).
Statute of Limitations
seeks to enforce both “[§§] 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.'” J & J Sports Prods., Inc. v.
Mayreal II, LLC, 849 F.Supp.2d 586, 588 (D.Md. 2012).
Section 553 prohibits the unauthorized interception or
receipt of certain cable communications, while § 605
proscribes the unauthorized interception or receipt of
certain “radio” communications, including at
least “digital satellite television
transmission.” Id. at 588 n.3. The parties
agree that neither 47 U.S.C. § 605 nor § 553
provide a statute of limitations. Defendants argue that
Pennsylvania's two-year statute of limitations against
tort liability, 42 Pa. Stat. and Cons. Stat. § 5524,
should apply to this action. (ECF No. 17, at 2). Plaintiff
maintains that Maryland's piracy statute, Md. Code, Crim.
Law § 7- 303, provides the proper three-year statute of
limitations. (ECF No. 18, at 3).
a federal statute contains no statute of limitations, the
rule is that the federal court - applying federal
choice of law rules - will apply the most closely analogous
statute of limitations of the forum state.”
U.S. ex rel. Ackley v. Int'l Bus. Machines
Corp., 110 F.Supp.2d 395, 402 (D.Md. 2000) (emphasis in
original); see DirecTV, Inc. v. Webb, 545 F.3d 837,
847 (9thCir. 2008) (“When a federal statute
does not have its own statute of limitations, we are directed
to borrow a period from the forum state's analogous
state law”) (emphasis added); see also Lampf,
Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 355 (1991) (“It is the usual rule that when
Congress has failed to provide a statute of limitations for a
federal cause of action, a court ‘borrows' or
‘absorbs' the local time limitation most
analogous to the case at hand.”) (emphasis added).
Importantly, there are two exceptions to this federal
practice. First, 28 U.S.C. § 1658 provides a general,
four-year limitations period for federal statutes enacted
after December 1, 1990 that do not have a statute of
limitations. N. Star Steel Co. v. Thomas, 515 U.S.
29, 34 n.* (1995). 28 U.S.C. § 1658 does not apply to
either 47 U.S.C. § 553 or § 605, however, because
the causes of action Plaintiff is suing under were not
“made possible” after December 1,
1990.Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382 (2004). Second, “when a
rule from elsewhere in federal law clearly provides a closer
analogy than available state statutes, and when the federal
policies at stake and the practicalities of litigation make
that rule a significantly more appropriate vehicle for
interstitial lawmaking, ” courts should, instead, look
to an analogous federal law for a statute of limitations.
N. Star Steel Co., 515 U.S. at 34 (quoting Reed
v. United Transp. Union, 488 U.S. 319 323 (1989)). This
is a “narrow exception to the general ...