United States District Court, S.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS (ECF NO. 14)
CYNTHIA BASHANT, District Judge.
On November 13, 2013, Plaintiff Joe Hand Promotions, Inc. ("Plaintiff"), a commercial distributor and licensor of sporting events, commenced this action against Defendants Marc S. Bragg and Cynthia Motsch, both individually and doing business as Sally and Henry's Doghouse Bar & Grill (collectively, "Defendants"), alleging violations of the Communications Act of 1934, as amended, 47 U.S.C. §§ 605, et seq., the Cable & Television Consumer Protection and Competition Act of 1992, as amended, 47 U.S.C. §§ 553, et seq., California Business and Professions Code §§ 17200, et seq. ("UCL"), and conversion. Defendants now move to dismiss Plaintiff's Complaint under Federal Rules of Civil Procedure 12(b)(1), (b)(6) and (b)(7).
The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court DENIES Defendants' motion to dismiss.
This action arises out of events involving the broadcast of an "Ultimate Fighting Championship" program on November 17, 2012 at Sally and Henry's Doghouse Bar and Grill at 3515 5th Avenue, San Diego, CA 92103 (the "Doghouse Bar"). (ECF No. 1 ("Complaint") at ¶ 18.)
Plaintiff is a Pennsylvania corporation with its principal place of business located at 407 E. Pennsylvania Blvd., Feasterville, Pennsylvania 19053. ( Id. at ¶ 6.) Defendants Marc S. Bragg and Cynthia Motsch are named in the Complaint individually and doing business as the Doghouse Bar. Plaintiff alleges Defendants Bragg and Motsch were the owners, operators, licensees, permittees, persons in charge and/or individuals with dominion, control, oversight, and management of the Doghouse Bar on November 17, 2012, the night of the broadcast. ( Id. at ¶¶ 7-10.) Plaintiff additionally alleges that Defendants Bragg and Motsch had the right, ability, and obligation to supervise the activities of the Doghouse Bar during the broadcast. ( Id. at ¶¶ 11-14.)
Plaintiff further alleges that it was granted exclusive contractual rights to the "nationwide commercial distribution (closed-circuit)" of Ultimate Fighting Championship 154: Georges St. Pierre v. Carlos Condit, telecast nationwide on November 17, 2012, including "all under-card bouts and fight commentary encompassed in the television broadcast of the event" (the " Program "). ( Id. at ¶ 18.) Plaintiff alleges that it also "entered into subsequent sublicensing agreements with various commercial entities throughout North America, " and granted these commercial entities limited sublicensing rights to publicly exhibit the Program within their respective commercial establishments. ( Id. at ¶ 19.)
In its Complaint, Plaintiff alleges it did not "authorize transmission, interception, reception, divulgence, exhibition or display of the Program to the general public, persons at large" or to the Doghouse Bar. ( Id. at ¶ 38.) However, Plaintiff alleges Defendants "[w]ith full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, " did unlawfully intercept and exhibit either through direct action or through actions of employees or agents directly imputable to Defendants. ( Id. at ¶ 21.) Lastly, Plaintiff alleges Defendants acted "willfully and for purposes of direct and/or indirect commercial advantage and/or private financial gain, " and that transmission of the Program resulted in increased profits to the Doghouse Bar. ( Id. at ¶¶ 16, 22.)
In its Complaint, Plaintiff asserts the following four causes of action: (1) violation of 47 U.S.C. § 605, (2) violation of 47 U.S. § 553, (3) violation of the UCL, and (4) conversion.
II. MOTION TO DISMISS PURSUANT TO FRCP RULE 12(b)(1)
A. Legal Standard
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss based on the court's lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). In such a motion, the plaintiff bears the burden of establishing the court's subject matter jurisdiction. "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming that all of the allegations are true and construing the complaint in light most favorable to the plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Thus, a motion to dismiss for lack of subject matter jurisdiction will be granted if the complaint on its face fails to allege sufficient facts to establish jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
"By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party ...