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J & J Sports Productions, Inc v. Cecilia Tolentino

November 14, 2011

J & J SPORTS PRODUCTIONS, INC.,
PLAINTIFF,
v.
CECILIA TOLENTINO, INDIVIDUALLY AND DBA D' GOURMET FILIPINO CUISINE, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING DEFENDANT'S MOTION TO AMEND THE PLEADINGS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 15 (Docket No. 25)

I. INTRODUCTION

On October 14, 2011, Defendant Cecilia Tolentino, individually and dba D' Gourmet Filipino Cuisine ("Defendant") filed a Motion for Leave to Amend Pleadings pursuant to Federal Rule of Civil Procedure 15. (Doc. 25.) On October 21, 2011, Plaintiff J & J Sports Productions, Inc. ("Plaintiff") filed a Statement of Non-Opposition to Defendant's motion. (Doc. 26.) After review of the papers, this motion was deemed suitable to take under submission pursuant to Local Rule 230(g), and thus the hearing set for November 16, 2011, has been VACATED.

For the reasons set forth below, Defendant's motion to amend the pleadings pursuant to Rule 15 is DENIED without prejudice and with leave to refile a motion to join a third party consistent with the Court's order.

II. BACKGROUND

On November 9, 2010, Plaintiff filed a complaint against Defendant alleging violations of 47 U.S.C. §§ 605 and 553, as well as causes of action for conversion and for violation of the California Business and Professions Code section 17200, et. seq. The suit is based on Defendant's alleged unlawful interception, receipt, and exhibition of "Firepower": Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program ("Program"), telecast nationwide on Saturday, November 14, 2009.

Defendant failed to timely answer the complaint and her default was entered. Thereafter, Defendant filed a motion to set aside the entry of default, which was granted on May 19, 2011. (Doc. 19.)*fn1 A scheduling order was issued on July 15, 2011.(Doc. 24.) On October 14, 2011, Defendant filed a motion seeking to amend the pleadings to join a third-party pursuant to Federal Rule of Civil Procedure 15. (Doc. 25.)

Defendant's restaurant is operated inside a "Food Court" in Bakersfield, California. (Doc. 25-2, ¶ 1.) According to Defendant, at the time Plaintiff alleges Defendant unlawfully exhibited the Program at her restaurant, it was impossible for her to do so because the restaurant did not have a cable subscription, there was no equipment to display the Program, and the Program was "not the type of event that [she] would put on in [her] quiet restaurant in any case." (Doc. 25-2, ¶ 2.) During the course of discovery, Defendant inquired with other Food Court owners and "found out by word of mouth" that George Molayem, the Food Court owner, had exhibited the Program at a time when Defendant's restaurant was closed. (Doc. 25-2, ¶ 3.) Defendant seeks to join Mr. Molayem as a party and proposes to state claims against him for implied contractual indemnity and implied equitable indemnity. (Doc. 25-5.) In her proposed "Cross-Claim," Defendant asserts that any damages arising from Plaintiff's claims are "the result of the acts or omissions of [Mr. Molayem]." (Doc. 25-5, ¶¶ 8, 12.)

On October 21, 2011, Plaintiff filed a statement of non-opposition to Defendant's motion. (Doc. 26.)

III. DISCUSSION

A. Defendant's Motion to Amend the Pleadings Pursuant to Rule 15

Rule 15 is not the appropriate procedural vehicle by which a defendant may join other parties to a lawsuit. See generally Lincoln Prop. Co., v. Roche, 546 U.S. 81, 90 ("'In general, the plaintiff is the master of the complaint and has the option of naming only those parties the plaintiff chooses to sue, subject only to the rules of joinder [of] necessary parties.'" (quoting Moore et al., Moore's Federal Practice § 107.14[2][c], p. 107-67 (3d ed. 2005))). As an initial matter, the Court cannot grant Defendant's motion pursuant to Rule 15, as Rule 15 does not encompass situations where a defendant wishes to join parties to the litigation.

Here, it appears that Defendant is seeking to implead third-party George Molayem. In support of her motion, Defendant submitted a proposed "Cross-Claim" against Mr. Molayem alleging claims for implied contractual indemnity and implied equitable indemnity. (Doc. 25-5.) Defendant asserts that she leases space for her business in a Food Court operated by Mr. Molayem. (Doc. 25-5, ¶ 7.) Under the terms of the lease, Mr. Molayem allegedly promised "an environment free of liability caused by his own actions or those of other tenants of the Food Court." (Doc. 25-5, ¶ 7.) According to Defendant, "[i]mplied by the contract entered into between [Defendant] and [Mr. Molayem] is the obligation of [Mr. Molayem] to defend, indemnify and hold harmless [Defendant] from the allegations of Plaintiff in its Complaint." (Doc. 25-5, ¶ 9.) Based on these allegations, it appears that Defendant is attempting to implead a third party pursuant to Rule 14 which provides in pertinent part:

[a] defendant party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the ...


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