Opinion
CASE NO.1:10CV2740
11-03-2011
J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. JAMES M. KENNEDY, ET AL., Defendant and Third Party Plaintiff, v. DISH NETWORK, LLC., Third Party Defendant.
ORDER
CHRISTOPHER A. BOYKO , J:
This matter is before the Court on Third- Party Defendant Dish Network, LLC.'s unopposed Motion to Dismiss Third-Party Complaint of James Michael Kennedy and Kennedy's Broadway Billiards, Inc. (ECF # 20). For the following reasons, the Court grants Dish Network's unopposed Motion.
On December 3, 2010, Plaintiff J & J Sports Productions, Inc., filed its Complaint against Defendant James M. Kennedy alleging claims for violation of 47 U.S.C. § 605, which prohibits the unauthorized publication or use of communications, violation of 47 U.S.C. § 553, which prohibits unauthorized interception, exhibition, publication, and divulgence of a broadcast, and Conversion. These claims arise out of Defendant's alleged unauthorized broadcast of a boxing match at his commercial establishment. On May 2, 2011, Defendant James M. Kennedy and new party Third Party Plaintiff Kennedy's Broadway Billiards, Inc., filed their Third Party Complaint against Dish Network, LLC, alleging claims for indemnification, contribution and breach of contract. According to Third Party Plaintiffs' Complaint, they purchased the broadcast from Dish Network for a fee but were never advised that they may be subject to liability for broadcasting the fight at their commercial establishment.
On August 16, 2011, Dish Network filed its Motion to Dismiss the Third Party Complaint. According to Dish Network's Motion, Third-Party Plaintiffs' Complaint fails to allege claims upon which relief may be granted. Specifically, Dish Network contends there is no federal right to contribution and indemnification for violations arising under 47 U.S.C. §605 and § 553. Dish Network also contends Third Party Plaintiffs' breach of contract claim fails to allege sufficient facts and is merely a rehashing of their indemnification and contribution claims. As of the date of this opinion, approximately forty-five days out of rule, Third Party Plaintiffs have not opposed Dish Network's Motion to Dismiss, requested an extension or offered a good faith reason for their failure to respond.
Dish Network's Motion is brought under Federal Rule of Civil Procedure 12(b)(6), which states:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted;
" The Supreme Court has recently clarified the pleading standard necessary to survive a Rule 12(b)(6) motion." CGH Transport Inc. v. Quebecor, World, Inc., 261 Fed. App'x. 817, 819, (6th Cir. 2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Factual allegations contained in a complaint must "raise a right to relief above the speculative level." Id. at 1965. Twombly does not "require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974. "In reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007). Under Twombly and Iqbal, a plaintiff can "unlock the doors of discovery" if and only if she alleges facts that demonstrate a plausible right to relief. Iqbal, 129 S. Ct. at 1950. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (quoting Twombly, 550 U.S. at 557). Any legal conclusions presented in the complaint as factual allegations are disregarded in this determination. Id. at 1949-50.
After a thorough review of Third Party Plaintiff's Complaint, the Court finds that it contains only claims for relief based on federal claims in the underlying Complaint of Plaintiff J & J Sports. In paragraph one of their Third Party Complaint, Third Party Plaintiffs allege:
1. James Michael Kennedy, alleged to be the "alter ego" of Kennedy's Broadway
Billiards, Inc., has been sued in this case by the plaintiff, J&J Productions, Inc. for allegedly violating the Communications Act of 1934, as amended, 47 U.S.C.A. § 605 et seq. and the Cable and Television Consumer Protectio (sic) and Competition Act of 1992, as amended, 47 U.S.C. § 553 et seq.
Nowhere in their Third Party Complaint do Third Party Plaintiffs allege any claim for indemnification or contribution arising from Plaintiff's state law claim for conversion. Likewise, Third Party Defendant does not move to dismiss Third Party Plaintiffs' claims for contribution or indemnification arising from Third Party Plaintiffs' liability for unlawful Conversion under state law. Thus, the Court will consider the Third Party Complaint as alleging only claims for contribution and indemnification and damages for breach of contract arising out of their alleged liability on Plaintiff's federal claims.
In a case out of California, the Ninth Circuit held "[t]he explicit language of Sections 553 and 605 do not provide any right to indemnification or contribution. There is no indication in the legislative history that Congress intended to grant violators of Section 553 or Section 605 a right to indemnification." Doherty v. Wireless Broadcasting Systems of Sacramento, Inc., 151 F.3d 1129, 1131 (9th Cir. 1998). The Court went on to say "[w]e also conclude that this is not an appropriate case for the federal courts to recognize a federal common law right. The creation of a right under federal common law is appropriate only where there are unique federal interests at stake. (Citations omitted). There are no such unique federal interests involved in this case." Id.
Third Party Plaintiffs have cited no case law opposing the Ninth Circuit's holding and the Court has not been apprised of, nor discovered any precedential Sixth Circuit cases opposing the Ninth Circuit's conclusion. Therefore, the Court holds that neither Sections 605 and 553, nor federal common law support a claim for contribution or indemnification for violations of the above statutes and the Court grants Dish Network's unopposed Motion to Dismiss Third Party Plaintiffs' claims for contribution and indemnification arising from violation of federal law, with prejudice.
Dish Network also moves to dismiss Third Party Plaintiffs' claim for breach of contract. Dish Network claims Third Party Plaintiffs' breach of contract claim fails to state a claim that is plausible on its face. Dish Network further contends the breach of contract claim is, in fact, just a contribution and indemnification claim disguised as a breach of contract claim.
Third Party Plaintiffs' Complaint purports to state a claim for breach of contract as follows:
10. To the extent that Dish Network, LLC had no right to sell the program to James Michael Kennedy and/or Kennedy's Broadway Billiards, Inc., Dish Network, LLC is liable to the third party plaintiffs for breach of contract since Dish Network, LLC expressly and/or implicitly represented to and promised the third party plaintiffs that, by charging a fee and transmitting the signal for the program, Dish Network, LLC had the right to sell, transmit and distribute the program and that third party plaintiffs were entitled to receive the program.
WHEREFORE, third party plaintiffs jointly and severally demand that if Dish Network, LLC was not authorized to transmit the program to the third party plaintiffs as plaintiff alleges, that Dish Network, LLC pay all liability of any kind or description which third party plaintiffs may owe to the plaintiff, contribute to any damages which the third party plaintiffs may have to pay the plaintiff, and/or indemnify and hold the third party plaintiffs harmless from and against any and all liability to the plaintiff and further pay damages to the third party plaintiff in an amount equal to the damages which third party plaintiffs may have to pay to the plaintiff, plus costs and reasonable attorney's fees.
In Ohio, "to recover upon a breach-of-contract claim, a plaintiff must prove "the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff." Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 10 (Ohio App. 2002). Dismissal under Rule 12(b)(6) is proper in this case because Third Party Plaintiffs' Complaint fails to allege any contractual damages, rather, their Third Party Complaint seeks damages for liability to Plaintiff arising from the purchase of the fight. The Third Party Complaint does not allege that the contract contained an indemnification clause or that the parties' contemplated recovery against Dish Network for damages arising from liability to a third party.
Ohio law hold that "[d]amages for a breach of contract are those which are the natural or probable consequence of the breach of contract or damages resulting from the breach that were within the contemplation of both parties at the time of the making of the contract." Micrel, Inc. v. TRW, Inc. 486 F.3d 866, 878 (6th Cir. 2007), quoting The Toledo Group, Inc. v. Benton Indus., Inc., 87 Ohio App.3d 798 (Ohio App. 1993). The Third Party Complaint makes it clear that the relief sought is for contribution or indemnification for any liability Third Party Plaintiffs may owe to Plaintiff, not for any breach of an express or implied contract between Third Party Plaintiffs and Dish Network. Therefore, the Court grants Dish Network's Motion to Dismiss Third Party Plaintiffs' breach of contract claim. The dismissal of Third Party Plaintiffs' breach of contract claims is without prejudice.
A plaintiff must demonstrate that the facts alleged in the complaint itself are sufficient to prove liability against the defendant and entitle her to relief. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Because Third Party Plaintiffs claims for indemnification and contribution under federal law fail as a matter of law and because their breach of contract claim fails to state a claim upon which relief may be granted, dismissal is warranted. Therefore, Dish Network's unopposed Motion to Dismiss is granted.
IT IS SO ORDERED.
S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge November 3, 2011