Joe Hand Promotions Incorporated v. Gonzalez

          ORDER

          Michael T. Liburdi United States District Judge

         Pending before the Court is Defendants' Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss Count 1 of the Complaint. (Doc. 9.) The Motion is fully briefed. For the following reasons, the Motion to Dismiss Count 1 is denied without prejudice.

         I. BACKGROUND

         Plaintiff Joe Hand Promotions, Inc. is a Pennsylvania company that specializes in distributing and licensing premier sporting events to commercial establishments. (Doc. 1 at 3.) Plaintiff had exclusive rights to commercially distribute the audiovisual presentation of the “high-profile” Mayweather, Jr. vs. Conor McGregor boxing match (the “Match”) that occurred on August 26, 2017. (Id. at 3, 6.)

         Defendant Angelica Gonzalez, an Arizona resident, owns and operates the Defendant business entities: Taco Mich. & Bar, LLC; Taco Mich. & Bar 2, LLC; Taco Mich. & Bar 3, LLC; and Taco Mich. & Bar 4, LLC. (Doc. 1 at 4.) The four Taco Mich. & Bar establishments are in Arizona. (Id.)

         In a Complaint filed March 22, 2019, Plaintiff alleges (Count 1) that Defendants unlawfully exhibited the Match in their commercial establishments through the interception and receipt of a cable/and or interstate satellite signal, without paying the proper commercial license fees to Plaintiff. (Doc. 1 at 6-7.) Plaintiff asserts (Doc. 1 at 5) that Defendants intentionally pirated the Match for their own economic gain by either intercepting and redirecting cable or satellite service from a nearby residence, by registering their business location as a residence, by physically moving a cable or satellite receiver from a residence to their business, or by obtaining the Match in violation of the terms of their television service provider agreement. (Id.) Count 1 of the Complaint alleges that Defendants' unauthorized exhibition of the Match violated 47 U.S.C. § 605 (Satellite Piracy) and in the alternative, to the extent necessary, 47 U.S.C. § 553 (Cable Piracy).^[1](Doc. 1 at 7.)

         No Defendant filed an answer to Plaintiff's Complaint. Instead, on May 30, 2019, Defendants Gonzales, Taco Mich. & Bar 2, LLC, Taco Mich. & Bar 3, LLC, and Taco Mich. & Bar 4, LLC^[2] filed a Motion to Dismiss Count 1, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff's claim under Count 1 was filed outside the statute of limitations. (Doc. 9.) Plaintiff filed a Response (Doc. 10) and the moving Defendants filed a Reply. (Doc. 11.)

         II. LEGAL STANDARDS AND ANALYSIS

         A. Rule 12(b)(6)

         A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) seeks dismissal of a claim against a party based on the averments made in the complaint. A statute-of-limitations defense may be raised in a Rule 12(b)(6) motion only if the running of the statute is apparent on the face of the complaint. Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006). “Dismissal on statute of limitations grounds can be granted pursuant to Fed.R.Civ.P. 12(b)(6) ‘only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.'” TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (internal citations omitted). Where a party alleges in a motion to dismiss that an action is barred under the statute of limitations, the court's task is only to determine whether the claimant has pleaded facts that show it is time barred. See Smith ex rel. Estates of Boston Chicken, Inc. v. Arthur Andersen L.L.P., 175 F.Supp.2d 1180, 1198 (D. Ariz. 2001). Where there is a question of fact as to the applicability of the statute of limitations, the motion to dismiss should be denied. Id.

         B. Arizona's one-year statute of limitations applies.

         Count 1 alleges violations of 47 U.S.C. § 605 (Satellite Piracy) and in the alternative, to the extent necessary, 47 U.S.C. § 553 (Cable Piracy). Neither statute contains or references its own statute of limitations. Defendants therefore urge the Court to borrow and apply Arizona's one-year statute of limitations to Plaintiff's claims in Count 1 (Doc. 9 at 3), while Plaintiff urges the Court to apply the two-year limitations period under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2521. (Doc. 10 at 4.) For reasons that follow, the Court finds that Arizona's one-year statute of limitations applies.

         When a federal statute does not have its own statute of limitations, courts are directed to borrow a period from the forum state's analogous state law. DirecTV, Inc. v. Webb, 545 F.3d 837, 847 (9th Cir. 2008). Analogous state law is the “lender of first resort” when a federal statute fails to provide a limitations period for a cause of action. North Star Steel Co. v. Thomas, 515 U.S. 29, 33-34 (1995). Federal law is limited to “serving as a ‘secondary lender' of limitations periods to be used only as a ‘closely circumscribed' exception to the general preference for state law.” DirecTV, Inc., 545 F.3d at 847 (citing North Star, 515 U.S. at 34). Borrowing from the forum state's law is the general rule, and a court may only deviate from that rule where “borrowing a state statute of limitations would ‘frustrate or interfere with the implementation' of federal law, ” or where policy concerns and the practicalities of litigation make borrowing the analogous federal law's limitations period significantly more appropriate. DirecTV, Inc., 545 F.3d at 847 (citing North Star, 515 U.S. at 34 and Lampf v. Gilbertson, 501 U.S. 350, 356 (1991)).

         Here, Defendants argue that 47 U.S.C. § 605 (Satellite Piracy) and 47 U.S.C. § 553 (Cable Piracy) are closely analogous to Arizona statutes A.R.S. § 13-3709 (Obtaining Cable Television and Video Services Fraudulently) and A.R.S. § 13-3710 (Obtaining Subscription Television Services), and that therefore the Court should apply Arizona's one-year statute of limitations to Count 1. (Doc. 9 at 4); see also A.R.S. § 12-541(5) (one-year statute of limitations for actions upon a liability created by statute, other than a penalty or forfeiture). In support of their position, Defendants cite (Doc. 9 at 4-5) DirecTV, Inc. v. Webb, where the Ninth ...