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J & J Sports Productions, Inc v. Christine Lynn Dean and James Roland Dean

September 12, 2011

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF AND COUNTERCLAIM DEFENDANT,
v.
CHRISTINE LYNN DEAN AND JAMES ROLAND DEAN, INDIVIDUALLY AND DOING BUSINESS AS TAVERN ON THE GREENS, AND PMGC, INC., AN
UNKNOWN BUSINESS ENTITY DOING BUSINESS AS TAVERN ON THE GREENS,



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING IN PART PLAINTIFF‟S MOTION TO DISMISS DEFENDANTS‟ COUNTERCLAIM, Docket No. 21, AND MOTION TO STRIKE DEFENDANTS‟ AFFIRMATIVE DEFENSES, Docket No. 22, DENYING PLAINTIFF'S SPECIAL MOTION TO STRIKE DEFENDANTS' COUNTERCLAIM, Docket No. 23, AND GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE REPLY BRIEFS, Docket No. 29

Plaintiff and Counterclaim Defendant J & J Sports Productions, Inc. has moved to dismiss for lack of subject matter 20 jurisdiction and failure to state a claim the counterclaim filed 21 by Defendants Christine Lynn Dean and James Roland Dean, 22 individually and doing business as Tavern on the Greens, and PMGC, 23 Inc., also doing business as Tavern on the Greens. Docket No. 21. 24 In addition, Plaintiff has specially moved to strike Defendants‟ 25 counterclaim pursuant to California Code of Civil Procedure 26 § 425.16, Docket No. 23, and moved to strike Defendants‟ 27 affirmative defenses, Docket No. 22. Defendants have opposed the 28 motions to dismiss and strike. Plaintiff did not file a timely 2 reply to any of the opposition briefs, but later moved for leave 3 to file late reply briefs. The motion for leave included the 4 proposed reply briefs. Defendants have not opposed the motion for 5 leave. 6

Having considered all of the parties‟ submissions, the Court GRANTS Plaintiff's motion for leave to file reply briefs, and 8

GRANTS IN PART Plaintiff‟s motions to dismiss Defendants' 9 counterclaim and strike Defendants' affirmative defenses. 10 Plaintiff's special motion to strike the counterclaim pursuant to

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section 425.16 is DENIED.

BACKGROUND

This lawsuit arises from a boxing match between Manny Pacquiao and Miguel Cotto, the World Boxing Organization‟s 15 Welterweight Championship Fight, which was telecast on November 16 14, 2009. Plaintiff has alleged that it was granted the exclusive 17 commercial distribution (closed-circuit) rights to the nationwide 18 telecast, including the match, all under-card bouts and fight 19 commentary encompassed in the television broadcast of the event 20 (the Program). 21

On November 10, 2010, Plaintiff filed suit alleging that

Defendants unlawfully showed the Program at their establishment, Tavern on the Greens, in Martinez, California. Plaintiff brings 24 four claims: (1) a violation of 47 U.S.C. § 605, (2) a violation 25 of 47 U.S.C. § 553, (3) conversion and (4) a violation of 26 California Business and Professions Code § 17200. With respect to 27 its first two claims, Plaintiff seeks statutory damages in the 28 amount of $170,000 against each of the Defendants, in addition to reasonable attorneys‟ fees and costs, as permitted by the 2 statutes. Plaintiff seeks compensatory, as well as punitive and 3 exemplary, damages from Defendants in connection with its claim 4 for conversion. Pursuant to its claim under section 17200, 5 Plaintiff seeks restitution and disgorgement of Defendants‟ 6 purportedly ill-gotten gains, as well as injunctive and 7 declaratory relief, and attorneys‟ fees. 8

On April 3, 2011, Defendants filed their Answer to Plaintiff‟s Complaint. Defendants Christine Lynn Dean and James 10 Roland Dean admitted to owning a business entity known as PMGC,

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Inc., which conducted business as Tavern on the Greens, but otherwise denied Plaintiff‟s allegations and stated eleven 13 affirmative defenses. In addition, Defendants alleged a 14 counterclaim for declaratory relief, seeking an order from this 15

Court that sections 605 and 553 violate various provisions of the 16 Constitution. Defendants seek a "judicial determination of their 17 rights and duties," and a "declaration of the validity" of 18 sections 553 and 605, or, in the alternative, "a declaration of 19 the exact terms and meaning of the statutes, the conduct and/or 20 acts prohibited by the statute and/or permitted by the statutes, 21 so that the Defendants/Counter-claimants or other similar [sic] 22 similarly situated in the public can conform their conduct . . ." 23

In connection with their counterclaim, Defendants allege the 24 following facts. Defendant PMCG, Inc. operates a golf course, on 25 which two buildings are located. One building is a mobile home 26 trailer. The mobile home is a residential dwelling rented to the 27 facility caretaker. The other building, located nearby, includes 28 a "Pro Shop" and "Tavern." The Tavern is a meeting and waiting area for the golf course patrons when the golf course is open to 2 the public. The Tavern includes a kitchen, a snack bar, a large 3 room and a large screen television. As part of the residential 4 lease agreement, the caretaker is permitted private use of the 5

Tavern, including the kitchen and television, when the Tavern is 6 closed to the public. Defendants contend that the Tavern is only 7 a commercial facility when it is open to the public. 8

On November 14, 2009, the Tavern on the Greens was closed to

9 the public, and the facility was used solely by the caretaker as a 10 dwelling unit. The caretaker and Defendants ordered through a cable service provider a telecast of the Program and watched it with a group of friends. No products or services were offered for 13 sale to any person, and no business activities were conducted. 14

DISCUSSION

I. Motion to Strike Affirmative Defenses 16

Plaintiff moved to strike Defendants‟ first through tenth affirmative defenses. In response, Defendants agreed to withdraw 18 their first, seventh and tenth affirmative defenses. Defendants 19 seek leave to amend their second, third, fourth, fifth and sixth 20 affirmative defenses, and contend that their eighth, ninth and 21 eleventh affirmative defenses are adequately plead. 22

Under Federal Rule of Civil Procedure 12(f), the court may 23 strike from a pleading an insufficient defense. However, a 24 defendant need only "state in short and plain terms its defenses 25 to each claim asserted against it." Fed. R. Civ. P. 8(b)(1). 26 "The key to determining the sufficiency of pleading an affirmative 27 defense is whether it gives plaintiff fair notice of the defense." 28

Wyshak v. City Nat‟l Bank, 607 F.2d 824, 827 (9th Cir. 1979). A court should strike defenses only if they are clearly 2 insufficient. See William Z. Salcer, Panfeld, Eldman v. Envicon 3 Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984). 4

Defendants‟ second affirmative defense asserts that Plaintiff 5 failed to mitigate its damages. Because Plaintiff seeks statutory 6 damages with respect to its claims under sections 553 and 605, and 7 restitution for allegedly ill-gotten gains pursuant to its claim 8 under section 17200, the defense of mitigation is not applicable. 9

Plaintiff seeks compensatory damages for conversion. Mitigation 10 in the context of Plaintiff‟s claim for conversion of its rights

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to the Program is meaningless. Defendants‟ argument that

Plaintiff could have prevented its damage by notifying the public 13 that Comcast and other cable and satellite service providers were 14 not authorized to offer the Program does not amount to a defense 15 of mitigation. Accordingly, Defendants‟ mitigation defense is 16 stricken without leave to amend. 17

In their third affirmative defense, Defendants contend that

18 the damages Plaintiff allegedly suffered were the result of third 19 party actions. This is not an affirmative defense, but rather a 20 defense, that Defendants did not damage Plaintiff. It is stricken 21 without leave to amend.

Defendants‟ fourth affirmative defense contends that the 23 damages Plaintiff allegedly suffered are too speculative to be 24 recoverable. Again, this is not an affirmative defense but merely 25 a defense to Plaintiff's ...


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