United States District Court, D. Arizona
Michael T. Liburdi United States District Judge
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.
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.)
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.)
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).(Doc. 1 at 7.)
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 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.
LEGAL STANDARDS AND ANALYSIS
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
Arizona's one-year statute of limitations
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.
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)).
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 ...