United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge
At
issue is Defendant Luis Espinoza's Motion to Eliminate
Defendant (Doc. 14). which seeks an order dismissing Luis
Espinoza from this action. For the reasons set forth below,
the Court denies this Motion.
I.
BACKGROUND
Plaintiff
G&G Closed Circuit Events, LLC (hereinafter,
“Plaintiff”) is a commercial distributor and
licensor of sporting events, and purports to have been
granted the exclusive commercial distribution rights to the
Gennady Golovkin v. Saul Alvarez IBF World Middleweight
Championship Fight Program (hereinafter the
“Program”), including all undercard bouts and
fight commentary. (Doc. 1 at 6). Plaintiff alleges that
Defendants Luis Espinoza, individually and d/b/a La Casita
Family Mexican Restaurant, and El Agave, LLC, a business
entity d/b/a La Casita Family Mexican Restaurant, unlawfully
intercepted and exhibited the Program without Plaintiff's
authorization on Saturday, September 16, 2017 at La Casita
Family Mexican Restaurant, a commercial establishment.
(Id. at 7). As a result, on September 11, 2018
Plaintiff brought this action against Defendants for
violations of 47 U.S.C. § 605 and 47 U.S.C. 553.
(See Doc. 1).
On May
14, 2019, Defendant Luis Espinoza (hereinafter,
“Espinoza”) filed the Motion at issue seeking an
order dismissing Espinoza as a defendant pursuant to Ariz. R.
Civ. P. 21 on the grounds that he was not properly joined in
this action. (Doc. 14 at 1).
II.
ANALYSIS
Notably,
Espinoza seeks dismissal pursuant to Arizona Rule of Civil
Procedure 21. However, the Arizona Rules of Civil Procedure
do not apply in this Court. Rather, the Federal Rules of
Civil Procedure “govern the procedure in all civil
actions and proceedings in the United States district courts
. . . .” Fed.R.Civ.P. 1; see Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003)
(“The Federal Rules of Civil Procedure apply
irrespective of the source of subject matter jurisdiction,
and irrespective of whether the substantive law at issue is
state or federal.”). Thus, to the extent Espinoza seeks
dismissal pursuant to a state procedural rule, his Motion is
denied.
Even if
Espinoza were to seek dismissal pursuant to Fed.R.Civ.P. 21,
his Motion would fail. Rule 20 of the Federal Rules of Civil
Procedure permits joinder of multiple defendants in one
action if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants will
arise in the action.
Fed. R. Civ. P. 20(a)(2). If these requirements are not both
satisfied, a district court may sever misjoined parties
“as long as no substantial right will be prejudiced by
the severance.” Coughlin v. Rogers, 130 F.3d
1348, 1351 (9th Cir. 1997); see Fed. R. Civ. P. 21
(“On motion or on its own, the court may at any time,
on just terms, add or drop a party.”). Nevertheless,
there is no indication that Espinoza was misjoined as a
defendant here, as the requirements of Rule 20 appear to be
met. It is clear from the face of the Complaint that common
questions of law and fact exist as to all Defendants, and
that there is transactional relatedness.
Finally,
to the extent that Espinoza intended his Motion to Eliminate
Defendant as a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
Espinoza's Motion also fails. In his Motion, Espinoza
argues that there is no reason to “pierce the corporate
veil” of El Agave, LLC by suing him individually. (Doc.
14 at 3). However, “corporate veil law does not
apply” for purposes of 47 U.S.C. § 605 and 47
U.S.C. 553. Joe Hand Promotions, Inc. v. Bragg, No.
13-CV-02725-BAS JLB, 2014 WL 2589242, at *5 (S.D. Cal. June
10, 2014). Rather, “[m]ost, if not all, courts
addressing the issue of individual liability under Section
553 and Section 605 have applied a standard of individual
liability premised on copyright law.” Id.;
see, e.g., J & J Sports Prods. Inc. v.
Rubio, No. CV-16-01111-PHX-JJT, 2016 WL 4074114, at *3
(D. Ariz. Aug. 1, 2016); G & G Closed Circuit Events,
LLC v. Miranda, No. 2:13-CV-2436-HRH, 2014 WL 956235, at
*4 (D. Ariz. Mar. 12, 2014); J & J Sports Prods.,
Inc. v. Walia, No. 10-5136 SC, 2011 WL 902245, at *3
(N.D. Cal. Mar. 14, 2011). Under this standard, a plaintiff
may establish the vicarious liability of an individual
shareholder or officer for a violation of § 553 or
§ 605 by showing that: “(1) the individual had a
right and ability to supervise the infringing activities and
(2) had an obvious and direct financial interest in those
activities.” Miranda, 2014 WL 956235, at *4
(quoting Walia, 2011 WL 902245, at *3).
Here,
Plaintiff has alleged that Espinoza, “the managing
member of El Agave, LLC, which owns and operates the
commercial establishment, ” had the right, ability and
obligation to supervise the activities of the restaurant the
night of the Program. (Doc. 1 at 3-4). Plaintiff also alleged
that Espinoza, as the managing member of El Agave, LLC and as
the individual identified on the business's liquor
license, “had an obvious and direct financial interest
in the activities of La Casita Mexican Restaurant.”
(Id. at 5). By Espinoza's own admission, he is
the “owner and operator” of El Agave, LLC, d/b/a
La Casita Family Mexican Restaurant, (Docs. 11 at 3; 13 at
3), which is the business at which Plaintiff alleges the
unlawful interception and exhibition of the Program occurred
on September 16, 2017, (Doc. 1 at 7). Moreover, Espinoza is
listed as the statutory agent of this entity by the Arizona
Corporation Commission, and is the licensee identified on the
business's liquor license.[1] Espinoza even admits that he had
“the right and ability to supervise as the owner and
manager of the business.” (Doc. 14 at 4). The
allegations in Plaintiffs Complaint here are analogous to
those made by the plaintiffs in J & J Sports
Productions Inc. v. Rubio, 2016 WL 4074114, at *3, and
G & G Closed Circuit Events, LLC v. Miranda,
2014 WL 956235, at *4, in which the district courts held that
the plaintiffs' allegations were sufficient to state
plausible claims against the defendants personally. For this
reason, as well, the Court will deny Espinoza's Motion to
Eliminate Defendant.
III.
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