J&J Sports Productions, Inc. v. Pro Street Shop, LLC

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE.

         Presently 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.

         I. Background^[1]

         Plaintiff 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 broadcast.^[2] (Id.).

         Plaintiff 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).

         Plaintiff 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).

         II. Standard of Review

         The 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 (4^th 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).

         At this 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 (4^th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4^th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4^th 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 (4^th 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 (4^th Cir. 1998)).

         A 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 (4^thCir. 1996) (citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 250 (4^th 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 (3^d 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).

         III. Analysis

         A. Statute of Limitations

         Plaintiff 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).

         “[W]hen 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 (9^thCir. 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.^[3]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 ...