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Joe Hand Promotions, Inc v. Cathal Lynch

November 30, 2011

JOE HAND PROMOTIONS, INC., PLAINTIFF,
v.
CATHAL LYNCH, D/B/A/ ATLANTIC BAR & GRILL, THE ATLANTIC BAR & GRILL DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

On July 7, 2011, plaintiff Joe Hand Promotions, Inc. ("Joe Hand") filed a complaint against the Atlantic Bar & Grill and its owner Cathal Lynch (together, the "Atlantic"), asserting claims for unauthorized interception of communications through the air in violation of 47 U.S.C. § 605 (Count I), unauthorized interception of communications through a cable system in violation of 47 U.S.C. § 553 (Count II), and conversion under Illinois law (Count III). Currently before the court is the Atlantic's Rule 12(b)(6) Motion to Dismiss (Dkt. No. 13). For the reasons explained below, the Atlantic's Motion is granted as to Count III and denied as to Counts I and II.

BACKGROUND

The Atlantic is a restaurant and bar located in Chicago, Illinois. Dkt. No. 1 ("Compl.") ¶ 7. The complaint alleges that on July 11, 2009, the Atlantic broadcast a boxing match titled the Ultimate Fighting Championship 100: "Making History" ("Ultimate Fighting Championship"). Id. ¶¶ 10, 13. Plaintiff Joe Hand is a commercial distributor of sporting events which claims the exclusive right to distribute the Ultimate Fighting Championship. Id. ¶¶ 10, 12. Joe Hand alleges that the Atlantic's broadcast of the boxing match was unauthorized, that the Atlantic knew it was unauthorized, and that the Atlantic nonetheless willfully broadcast the Ultimate Fighting Championship. Id. ¶ 13.

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "include sufficient facts 'to state a claim for relief that is plausible on its face.'" Cole v. Milwaukee Area Tech. College Dist., 634 F.3d 901, 903 (7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In ruling on a Rule 12(b)(6) motion, the court "construe[s] the . . . [c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and drawing all possible inferences in his favor. Id.

ANALYSIS

I. Counts I and II: 47 U.S.C. §§ 553, 605

Counts I and II claim that the Atlantic's alleged misappropriation of the Ultimate Fighting Championship violated two separate federal statutes. The first, 47 U.S.C. § 605, prohibits the unauthorized interception and use of "satellite cable programming." 47 U.S.C. § 605(d)(1); see also United States v. Norris, 88 F.3d 462, 468 (7th Cir. 1996). The second, 47 U.S.C. § 553, provides that no unauthorized "person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system." 47 U.S.C. § 553(a)(1). The Seventh Circuit has held that § 605 applies only to satellite or radio transmittal, and not to transmittal by cable, and that § 553 applies only to cable systems. Norris, 88 F.3d at 469. Consequently, a defendant cannot be liable under both statutes for the same act. See J & J Sports Prods., Inc. v. Banda,2009 WL 960098, at *3 (N.D. Ill. Apr. 8, 2009) (No. 08-2570) (Der-Yeghiayan, J.).

The Atlantic seizes on the mutual exclusiveness of the two statutes to argue that the court should dismiss Counts I and II because they are not brought in the alternative. Pleading in the alternative is allowed, of course,*fn1 but only when the complaint explicitly indicates an intention to so plead, or when it "use[s] a formulation from which [an intent to plead in the alternative] can be reasonably inferred." See Holman v. Indiana, 211 F.3d 399, 407 (7th Cir. 2000). The Atlantic contends that Joe Hand's complaint lacks an explicit indication of alternative pleading, and notes that all of the allegations in Count I are incorporated by reference in Count II. See Compl. ¶ 18.

Nonetheless, the court concludes that the complaint indicates a sufficient intention to plead in the alternative. The mutual exclusiveness of § 605 and §553 is well-established law. In light of that legal principle, any complaint asserting that a single action violates both statutes can only be interpreted as stating alternative claims. That reasoning is particularly appropriate where the identification of the correct statute depends on ascertaining a fact of which the plaintiff may not yet be aware, namely, whether the defendant intercepted the Ultimate Fighting Championship by satellite or through a cable system. Allowing discovery of that fact will provide the necessary enlightenment to indicate under which statute the plaintiff should recover. Meanwhile, the Atlantic is in no danger of recovery under both statutes, given the established law precluding that result. See J & J Sports Prods., Inc. v. Rezdndiz, 2008 WL 5211288, at *3 (N.D. Ill. Dec. 9, 2008) (No. 08-4121) (Grady, J.). Given the impossibility of any prejudice, the Atlantic "is making a mountain out of a molehill," id., and the court declines to go along with Atlantic as it does.

Moreover, even if the court agreed with the Atlantic, the proper course of action would be to allow Joe Hand to amend its complaint to add explicit language indicating alternative pleading, which it would surely do. See Barry Aviation v. Land O'Lakes Mun. Airport Comm'n, 377 F.3d 682, 687 (7th Cir. 2004). The court declines to put the parties through that pointless rigamarole.

The Atlantic next contends that the complaint is legally insufficient under Bell Atlantic Corp. v. Twombly, which requires the plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." 550 U.S. 544, 570 (2007). The Atlantic's arguments fail, however, because Joe Hand's complaint includes ample factual detail to demonstrate the plausibility of the allegations. The complaint clearly identifies the broadcast program allegedly misappropriated by Atlantic, Compl. ¶ 10, the place of the alleged violation, id. ¶ 13, the date of the alleged violation, id. ¶ 10, the existence of a contract establishing Joe Hand's exclusive rights to show the broadcast program, id., the absence of authorization allowing Atlantic lawfully to show the broadcast program, id. ¶ 13, and the Atlantic's alleged willfulness in misappropriating the broadcast program, id. In addition, a reasonable inference from the statutes listed in ...


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