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J&J Sports Productions, Inc. v. 88-18 Tropical Restaurant Corp.

United States District Court, E.D. New York

March 30, 2018




         Plaintiff J&J Sports Productions, Inc. (“Plaintiff”) brings this action against 88-18 Tropical Restaurant Corp. d/b/a Tropical Restaurant and its purported principal Jaime Antonio Pesantez (“Pesantez”) (collectively, “Named Defendants”) pursuant to the Federal Communications Act of 1934 (“FCA”), as amended, 47 U.S.C. §§ 553 & 605. Plaintiff alleges that Defendants unlawfully received and exhibited a closed-circuit telecast of a pay-per-view boxing match in violation of Plaintiff's exclusive license.

         The instant motion to dismiss argues that Plaintiff's complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). Although the motion to dismiss makes substantive arguments on behalf of both Pesantez and a “Tropical Restaurant Bar” (“Answering Defendants”) located at the address where service of process was effected, it seeks dismissal on the grounds that the captioned “Tropical Restaurant” is a nonexistent corporate entity and was incorrectly named in Plaintiff's complaint. See Mem. of Law in Supp. of Mot. to Dismiss (“Defs.' Br.”), Dkt. Entry No. 6-1. Answering Defendants further argue that Plaintiff fails to plead sufficiently a basis for individual liability as to defendant Pesantez. Id. Plaintiff responded that the Complaint stated a cause of action, and in the alternative, that they should be given leave to amend (“Reply”, Dkt. Entry No. 10).

         For the reasons set forth below, Answering Defendants' Motion to Dismiss is denied as to 88-18 Tropical Restaurant Corp. and Plaintiff is granted leave to amend the complaint to name the correct entity. However, Answering Defendant's motion to dismiss individual liability as to defendant Pesantez is granted.


         Plaintiff entered into an exclusive agreement with Golden Boys Promotions LLC to exhibit the May 3, 2014 Welterweight Championship Boxing Match between Floyd Mayweather and Marcos Maidana (the “Event”), at closed-circuit locations throughout New York and nationwide. See Compl. ¶ 7, Dkt. Entry No. 1. Pursuant to its rights under that agreement, Plaintiff contracted with various venues to broadcast the Event in exchange for a fee. Id. ¶ 11. Transmission of the Event was electronically coded or “scrambled, ” and for the signal to be received and telecast clearly, it had to be decoded with electronic coding equipment. Id. ¶ 12. Establishments that contracted with Plaintiff received electronic decoding equipment and satellite coordinates necessary to receive the signal of the Event. Id. ¶ 14. Named Defendants did not purchase the rights to exhibit the Event but allegedly broadcast the Event to its patrons anyway. Id. ¶ 13.

         Plaintiff filed the complaint against the Named Defendants and served the complaint at 88-18 Jamaica Avenue in Woodhaven, New York. See Summons, Dkt. Entry No. 4. In response, Carter & Associate Attorneys, PLLC appeared and filed the instant motion to dismiss. See Notice of Appearance, Dkt. Entry No. 5; Mot. to Dismiss, Dkt. Entry No. 6. The notice of appearance and motion were filed on behalf of a “Tropical Restaurant Bar” located at the same 88-18 Jamaica Avenue address, as well as on behalf of Pesantez; however, Answering Defendants contend that the corporate entity captioned as a defendant in the complaint, “88-18 Tropical Restaurant Corp.” does not exist, and, therefore, the case should be dismissed. Def's. Br. at 2. Further, as to Pesantez; however, Answering Defendants contend that the complaint's allegation that Pesantez holds a pecuniary interest in the alleged violation is insufficient to state a cause of action for individual liability. Defs.' Br. at 4.


         I. Failure To State A Claim

         A. Legal Standard

         Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The pleading standard under Rule 8 does not require “detailed factual allegations, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A complaint does not “suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (internal citations and quotation marks omitted). On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002).

         B. Defendants Fail to Contest the Plausibility or Sufficiency of the Allegations Under 12(b)(6)

         Except with respect to a challenge to the naming of the corporate entity at issue, discussed below, Answering Defendants' arguments as to the sufficiency of the pleadings are cursory and without merit. The complaint alleges that Plaintiff held an exclusive license to sublicense and telecast the Event, and the only way Named Defendants could have broadcast the transmission without violating Section 605(a) would have been to contract with Plaintiff, which Named Defendants did not do, but exhibited the Event to their patrons on May 3, 2014 anyway. Compl. ¶¶ 7-19. Courts in this jurisdiction have consistently found that such allegations are sufficient to establish liability under Section 605(a). See J & J Sports Prods., Inc. v. LX Food Grocery Inc., No. 15-cv-6505 (NGG) (PK), 2016 WL 6905946, at *2 (E.D.N.Y. Nov. 23, 2016) (collecting cases).

         II. L ...

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