J & J Sports Productions, Inc. v. Rivera, No. 6:2013cv01996 - Document 28 (D. Or. 2014)

Court Description: OPINION AND ORDER: Dish's motion to dismiss 12 is granted as to JAR's third-party contribution claim and denied in all other respects. The parties' requests for oral argument are denied as unnecessary. See formal opinion and order. Signed on 6/18/2014 by Chief Judge Ann L. Aiken. (rh)

Download PDF

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON J&J SPORTS PRODUCTIONS, INC., a California corporation, Plaintiff, v. JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Defendant. JORGE ALBERTO RIVERA, aka JORGE ALBERTO GALA, individually dba EL JARRO AZUL MEXICAN & SALVADORIAN FOOD FAMILY RESTAURANT, Third-Party Plaintiff, v. DISH NETWORK CORPORATION, a Nevada corporation, Third-Party Defendant. Page 1 - OPINION AND ORDER Case No. 6:13-cv-01996-AA OPINION AND ORDER Samuel C. Justice Law Office of Samuel C. Justice 610 S.W. Alder Street, Suite 1000 Portland, Oregon 97205 Attorney for plaintiff Robert D. Lowry Law Firm of Robert D. Lowry 975 Oak Street, Suite 790 Eugene, Oregon 97401 Attorney for defendant/third-party plaintiff Abby R. Michels Preg O'Donnell & Gillett, PLLC 222 S.W. Columbia, Suite 1575 Portland, Oregon 97201 Attorney for third-party defendant AIKEN, Chief Judge: Third-party defendant Dish Network Corporation (nDish") moves to dismiss defendant/third-party plaintiff Jorge Alberto Rivera's (nJAR") claims pursuant reasons to discussed below, Fed. R. Civ. Dish's motion P. is 12 (b) (6). For the granted in part and denied in part. BACKGROUND At some unspecified time, plaintiff J&J Sports Productions, Inc. ("J&J") purchased the exclusive nationwide television rights to the "Manny Pacquiao v. Juan Manual Marquez, WBO Welterweight Championship" (nFight"). J&J subsequently entered into sublicensing agreements regarding distribution of the Fight with various entities, including Dish, a satellite television service provider. Thereafter, JAR contacted Dish to procure the Fight for his restaurant located in Eugene, Oregon. On August 26, 2011, Dish installed satellite television service at JAR's restaurant and the parties executed a "Digital Home Advantage Plan" ("Contract"), written in English, pursuant to which JAR agreed not to Page 2 - OPINION AND ORDER air the Fight to the public or in a commercial establishment. See Dish's Mem. in Supp. of Mot. Dismiss Exs. 1-2. 1 On November 12, 2011, JAR displayed the Fight at his restaurant. On November 8, 2 013, J&J filed a complaint in this Court against JAR, alleging federal claims pursuant to 47 U.S.C. and 47 U.S.C. § 605, § 553 as well as a conversion claim under Oregon common law. On February 20, 2014, JAR filed a third-party complaint against Dish, asserting a right to indemnity and contribution arising out of J&J's underlying conversion claim. On May 2, 2014, Dish moved to dismiss JAR's third-party claims. STANDARD OF REVIEW Where the plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Fed. R. Civ. P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, For purposes of a motion to dismiss, 550 U.S. 544, 570 (2007). the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Bare Rosen v. Walters, assertions, however, 719 F.2d 1422, that amount to 1424 (9th Cir. nothing more 1983). than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. 1 Starr v. Baca, 652 F.3d 1202, Dish appends the Contract and case law to its motion. JAR does not dispute the authenticity of these documents or object to their consideration. See JAR's Resp. to Mot. Dismiss 1-2. Page 3 - OPINION AND ORDER 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). DISCUSSION Dish contends that dismissal is warranted because JAR fails to state a cognizable claim for relief under Oregon law. Specifically, Dish argues JAR "is primarily liable for [his] intentional actions and [therefore] cannot obtain indemnity from Dish when Dish was allegedly negligent." Additionally, Id. in Supp. of Mot. Dismiss 7. Dish asserts that JAR cannot "recover contribution from Dish [because] injury." Dish's Mem. Dish is not liable to Plaintiff for the same Lastly, according to Dish, Simply Satellite, "an independent contractor" who "installed all Dish equipment that is relevant to [JAR's] claims," is a required party under Fed. R. Civ. P. I. 19. 2 Id. at 8-9. Preliminary Matters Two preliminary issues merit clarification before the Court reaches the substantive merits of Dish's motion. A. New Facts Via his opposition, surreply, and response to this Court's June 10, 2014, order, JAR seeks to introduce several new facts in support of his third-party claims. Notably, JAR includes and relies on the following facts in opposing Dish's motions: (1) "Dish acted knowingly and intentionally in selling 2 Dish also argues that dismissal is required because JAR's "satellite plan was entered into with Dish Network, LLC, not Dish Network Corporation." Dish's Mem. in Supp. of Mot. Dismiss 7. As JAR notes, Dish Network, LLC is a wholly-owned subsidiary of Dish Network Corporation. See Lowry Decl. Ex. 2. Moreover, the case law that Dish attaches to its motion indicates that any distinction between Dish Network, LLC and Dish Network Corporation is legally meaningless in the present context. See Dish's Mem. in Supp. of Mot. Dismiss Exs. 3-5. The Court finds this argument without merit and declines to address it further. Page 4 - OPINION AND ORDER and arranging for the subject program to specifically at Rivera's place of business"; be viewed (2) "[JAR's wife was] contacted by someone identifying themselves as a representative of Dish, and that Dish representative went on to explain in substance that 'an error had been made' with her Dish account'; that it had been erroneously 'set up' by Dish in error, as a 'residential' account; that Dish was immediately cancelling it; and that she now needed to set up a 'commercial' account with Dish"; (3) "Defendant/third-Party Plaintiff acknowledges that it received that three-page [Contract] but also notes the following: The document [is] written in [English] using very complex language [but] [JAR's wife] is (Salvadorean) Spanish-speaking as her primary language and [JAR] barely speaks any English at all"; and (4) "Dish clearly understood the severe English-speaking limitations of [JAR] as its regular billings to [JAR] are in fact in Spanish." JAR's Resp. to Mot. Dismiss 5; JAR's Surreply to Mot. Dismiss 2; JAR's Resp. to Ct. Order 2. The Court notes that JAR's first new assertion is contradicted by the plain language of his third-party complaint. Compare JAR's Resp. to Mot. Dismiss 5 ("Dish acted knowingly and intentionally"), with Third-Party Compl. ~~ 4-5 ("Dish representatives negligently and with possible damage to Rivera being reasonably foreseeable"); see also Bojorquez v. Wells Fargo Bank, NA, 2013 WL 6055258, *3-4 (D.Or. Nov. 7, 2013) (disregarding new allegations first raised in an opposition to a motion to dismiss where, amongst other defects, "they contradict [ed] plaintiffs' FAC"). JAR would have known at the time he filed his third-party claims whether Dish's actions were negligent or intentional. In other words, because his third-party complaint "uses the word standard for negligence 'negligently' in Oregon and cites the applicable ·foreseeability," indemnity claim proceeds under a negligence theory, Page 5 - OPINION AND ORDER JAR's despite his present assertion to the contrary. Dish's Reply to Mot. Dismiss 2. Concerning JAR's remaining new allegations, the third-party complaint is silent as to these matters, in part because one of the aforementioned events transpired "literally just a few hours after Dish's Reply" was filed. JAR's Surreply to Mot. Ordinarily, " [ i] n determining the propriety of a dismissal, a court may not look beyond the Dismiss 2. Rule 12 (b) ( 6) complaint to a plaintiff's moving papers." Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Nevertheless, given that JAR expressed an intent to claims are dismissed, amend the third-party complaint combined with the fact if his that this case is slated for judicial settlement, the Court finds that considering JAR's new allegations promotes judicial economy. Thus, the Court considers JAR's new allegations in evaluating Dish's motion, except to the extent they explicitly contravene his third-party complaint. B. Simply Satellite Where the plaintiff "fail[s] to join a party under Rule 19," the court must dismiss the action. Fed. R. Civ. P. 12(b) (7). Fed. R. Civ. P. 19, in turn, "provides a three-step process for determining whether the court should dismiss an action for failure to join an Staffing, indispensable Inc., 2008 WL party." 2774530, Dalrada *2 Fin. (S.D.Cal. Corp. July v. 16, All 2008) (citing United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999)). First, the "necessary." court Id. must determine (citations whether omitted). the Second, absent "[i] f party is the absent party is 'necessary,' the court must determine whether joinder is 'feasible.'" Id. ( citations omitted) . "Finally, if joinder is not 'feasible, ' court must the Page 6 - OPINION AND ORDER decide whether the absent party is 'indispensable,' i.e., whether in 'equity and good conscience' the action can continue without the party." Id. The moving party "bear [ s] support of the motion." ( citations omitted) . the burden in producing evidence Id. ( citation and internal in quotations omitted) . The Court does not find Simply Satellite to be a necessary party. "[A] party is [not] 'necessary' [if] 'complete relief' can be accorded among the existing parties." Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992) (citation omitted). Here, JAR represents that all of his or his wife's communications concerning the Fight and the underlying satellite subscription were directly with Dish. See Third-Party Compl. <JI'!I 4-5; JAR's Resp. to Mot. Dismiss 1-2. Indeed, according to JAR, Dish recently acknowledged its mistake in establishing a residential, as opposed to a commercial, account at his restaurant. See JAR's Surreply to Mot. Dismiss 2. Further, the Contract was unambiguously executed between Dish and JAR's wife and agent. See Dish's Mem. in Supp. of Mot. Dismiss Ex. 1. The Court recognizes that Dish disputes whether and to what extent it was involved in the provision of satellite services to JAR's commercial establishment. See Dish's Reply to Mot. Dismiss 6 (" [JAR] did not contact Dish to set up programming for the fight, [he] [his] contacted satellite plan or Simply Satellite") ; Werner Decl. 'II 3 ("Dish received no direct communication from [JAR] upon setting up [his] Dish account") . The Court, however, must accept JAR's well-pleaded allegations as true, as well as refrain from making credibility proceedings. Moreover, determinations, at this stage in the the fact remains that, beyond introducing Page 7 - OPINION AND ORDER conclusory declarations that "Simply Satellite is an independent contractor for Dish," Dish neglected to set forth any argument or evidence regarding their employment relationship. Weeks Decl. Werner Decl. ~ ~ 4; 3; see also Frank v. Cascade Healthcare Cmty., Inc., 2013 WL 867387, *17 (D.Or. Mar. 6, 2013) ("the parties' description of their legal relationship does not control the legal implications of [that] relationship") ( citations omitted) . Even assuming Dish sufficiently demonstrated that complete relief between the existing parties is impossible without Simply Satellite, Dish nonetheless failed to meet its burden in regard to the latter two Fed. R. Ci v. P. 19 requirements. Significantly, because J&J's underlying claims are premised on federal law, Dish does not assert, nor can it, that joinder of Simply Satellite would destroy subject-matter jurisdiction. See Wilbur v. Locke, 423 F.3d 1101, 1112 (9th Cir. 2005) ("a person is regarded as indispensable when he cannot be made a party and, factors in Rule 19(b), upon consideration of the it is determined that in his absence it would be preferable to dismiss the action") (citation and internal quotations omitted); see also Third-Party Compl. in Supp. of Mot. ~ 1; Dish's Mem. Dismiss 8-9. The proper course of action under these circumstances would be to compel joinder of Simply Satellite, as opposed to dismissing Dish as Sanguinetti v. Viewlogic Sys., a Inc., Jan. 24, 1996). For these reasons, third-party defendant. 1996 WL 33967, *2 See (N.D.Cal. Dish's motion is denied as to this issue. II. Indemnity Claim In evaluating whether a cause of action exists, the court examines the law of the state where the alleged tort occurred. See Page 8 - OPINION AND ORDER Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.), cert. denied, 473 U.S. 934 (1985). Where, as here, "the state's highest court has not adjudicated the issue, the district court must make a reasonable determination, based upon such recognized sources as statutes, treatises, restatements and published opinions, as to the result that the highest state court would reach if it were deciding the case." Id. Under Oregon law, "[a] party seeking indemnity must plead and prove three elements: (1) plaintiff obligation owed to a third party; the third party; and (3) obligation plaintiff's ought to discharged a legal (2) defendant was also liable to as between plaintiff and defendant, the be liability has discharged was by 'secondary' the or latter, its in fault that merely 'passive,' while that of the defendant was 'active' or 'primary.'" Arch Chemicals, Inc. v. Radiator Specialty Co., 727 F.Supp.2d 997, 998 (D.Or. 2010) (citing Fulton Ins. v. White Motor Corp., 261 Or. 206, 210, 493 P.2d 138 (1972), superseded in part on other grounds, Waddill v. Anchor Hocking, Inc., 330 Or. 376, 8 P.3d 200 (2000)). Where these elements are met, common law indemnity shifts "the full responsibility for joint liability to an injured third party." Maurmann v. Del Morrow Constr., Inc., 182 Or.App. 171, 178, 48 P.3d 185 (2002). culpability, In other words, a party who due commits to an their relative intentional levels tort is of not entitled to indemnity from a negligent party. See Burton v. Mackey, 104 Or.App. 361, 363-64, 801 P.2d 865 (1990) (dismissing a common law indemnity claim where the perpetrator of fraud sought indemnity from an allegedly negligent party) . As discussed above, Page 9 - OPINION AND ORDER JAR's indemnity claim proceeds under a negligence theory. As such, whether JAR states an indemnity claim against Dish hinges on whether conversion is an intentional tort in Oregon. Conversion is defined as "'an intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full Morrow v. First Interstate Bank, N.A., P.2d 411 (1993) value of the chattel.'" 118 Or.App. 164, 171, 847 (quoting Mustola v. Toddy, 253 Or. 658, 663, 456 P.2d 1004 (1969)). This definition has been interpreted to include both negligent and intentional aspects: "[i]n character or degree, conversion may occur on a spectrum from the most outright, blatant kind of theft to what may be regarded as innocent conversion." In re Conduct of Martin, ( citation and 328 Or. internal 177, 184-85, quotations 970 P.2d 638 omitted) . As (1998) such, the defendant's action in controlling the chattel must be willful, although he or she need not intend the consequences or have knowledge that the property at issue belongs to another. Essentially, JAR asserts that, given the equitable nature of indemnity, justice requires Dish to bear J&J's damages in the case at bar; JAR made broadcast the a good Fight, and, faith but effort for to legally purchase Dish's acts in and negligently misrepresenting the license as commercial and providing a foreignlanguage Contract, J&J would not have been injured. Thus, according to JAR, party. passive as between himself and Dish, See, e.g., and primary") ; Third-Party Compl. secondary JAR's Resp. while to Mot. those Dish was the more culpable ~ of Dismiss 6 ("[JAR's] Dish 5-6 were (" [a] s actions were active pled, and DISH's actions were as 'intentional' and knowledgeable as J&J Sports has Page 10- OPINION AND ORDER alleged Rivera's actions to be in its conversion claim"). Given that it is written in English, using complex or atypical language, the Court cannot conclude that JAR or his wife and agent read and understood the Contract. Further, without the Contract, it was reasonable for JAR to believe he was procuring commercial satellite services, especially since Dish has now acknowledged its error in installing a residential account at JAR's restaurant. See JAR's Sur reply to Mot. Dismiss 2; Third- Party Furthermore, the parties have not cited to, Compl. SIS! 4-5. and the Court is not aware of, any Oregon authority expressly defining conversion as an intentional tort or otherwise indicating "that third-party indemnity claims are purportedly barred where a plaintiff has pled a claim for conversion." JAR's Resp. to Mot. to Dismiss 6. Accordingly, this case is distinguishable from the out-of-circuit precedent upon which Dish relies. See Dish's Mem. in Supp. of Mot. Dismiss Exs. 3-5. Given the totality of the circumstances, and the relevant standards of Rule 12 (b) ( 6) , JAR adequately states an indemnity claim under Oregon law and Dish's motion is denied in this regard. III. Contribution Claim The general right to contribution in Oregon is governed by statute: "'where two or more persons become jointly or severally liable in tort for the same injury to person or property . there is a right of contribution among them.'" Ironwood Homes, Inc. v. Bowen, 719 F.Supp.2d 1277, 1292-93 (D.Or. 2010) (quoting Or. Rev. Stat.§ 31.800). As such, "[a] party seeking contribution must prove it has a 'common liability' contribution is sought." Id. Page 11- OPINION AND ORDER with the party from whom the ( citation omitted) . Here, J&J alleges that JAR is liable for violations of federal and state law because he aired the Fight in his restaurant without acquiring a license to do so. See generally Compl. Dish's liability, on the other hand, is based on its failure to enter into the requested commercial satellite agreement with JAR. See ThirdParty Compl. ~~ 4-6. The grounds for imposing liability on Dish are therefore not the same as the grounds for imposing liability on JAR. See Ironwood Homes, 719 F.Supp.2d at 1293 (dismissing a contribution claim where the "same injury" requirement was not met) (citing Jensen v. Alley, 128 Or.App. 673, 677, 877 P.2d 108 (1994)). Critically, despite the fact that Dish expressly raised this issue in its motion, JAR failed to address or otherwise acknowledge the same injury requirement. See Dish's Mem. in Supp. of Mot. Dismiss 7; JAR's Resp. to Mot. Dismiss 12; see also Dish's Reply to Mot. Dismiss 4 (JAR "does not dispute Dish's argument that the parties are not alleged to have caused the same injury") . Where, as here, "a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded." (citation and internal quotations omitted). Bojorquez, 2013 WL 6055258 at *5. Because common liability is lacking, Dish's motion is granted as to JAR's contribution claim. CONCLUSION Dish's motion to dismiss (doc. 12) is GRANTED as to JAR's third-party contribution claim and denied in all other respects. The parties' requests for oral argument are DENIED as unnecessary. Ill Ill Page 12- OPINION AND ORDER IT IS SO ORDER~1iJf~ Dated this /6 l of June 2014. United Page 13- OPINION AND ORDER Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.