United States District Court, E.D. New York
J&J SPORTS PRODUCTIONS, INC. Plaintiff,
88-18 TROPICAL RESTAURANT CORP. d/b/a TROPICAL RESTAURANT and JAIME ANTONIO PESANTEZ, Defendants.
MEMORANDUM & ORDER
L. IRIZARRY CHIEF JUDGE.
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.
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).
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
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.
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.
Failure To State A
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,
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).
Defendants Fail to Contest the Plausibility or Sufficiency of
the Allegations Under 12(b)(6)
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).