United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on Defendants Jodi R. Blair Turntine's and PitStop Sports Bar LLC's Motion to Dismiss [ECF No. 31] and Defendant Gary S. Blair's Motion to Dismiss [ECF No. 33].
On May 27, 2014, Plaintiff Joe Hand Promotions, Inc. ("Plaintiff") filed a Complaint, seeking statutory damages pursuant to 47 U.S.C. §§ 605 and 553, against Defendants Pit Stop Sports Bar, LLC, d/b/a Pit Stop ("Pit Stop"); Jodi R. Blair Turntine ("Turntine"); and Gary S. Blair ("Blair") [ECF No. 1]. Plaintiff sued Turntine and Blair individually, and as officers, directors, shareholders, or principals of Pit Stop. In its Complaint, Plaintiff alleges it has distribution rights to a certain Ultimate Fighting Championship broadcast, "UFC 128: Shogun v. Jones. " Plaintiff further alleges Pit Stop violated the Federal Communications Act by intercepting and exhibiting, without authorization, a production of the broadcast by some undetermined method. Plaintiff requests statutory penalties of up to $110, 000 as to each defendant, for violations of 47 U.S.C. § 605(a); or alternatively, statutory penalties of up to $60, 000 as to each defendant, for violations of 47 U.S.C. § 553. Plaintiff also asks for an award of attorney's fees, interests, and costs.
Summonses were issued to Defendants on May 29, 2014, to be served by a special process server. On July 14, 2014, Plaintiff filed an "Affidavit of Service" for each named defendant [ECF Nos. 5, 6]. In these affidavits, the special process server reported that, on June 25, 2014, he served the Summons and Complaint on Turntine by personal service at Pit Stop; on Blair by serving Turntine for Blair at Pit Stop as alternative service; and on Pit Stop by personal service at Pit Stop [ECF No. 5]. On July 15, 2014, the Clerk contacted Plaintiff, requesting it to file the sealed summons originally issued for each defendant.
On July 31, 2014, Plaintiff filed with the Clerk a Request to Enter Default against Defendants, for failure to appear or otherwise respond within the time prescribed by the Federal Rules of Civil Procedure [ECF No. 6]. In support of this request, Plaintiff re-submitted the three Affidavits of Service, and submitted one unexecuted copy of a Western District of Missouri form summons addressed to Turntine [ECF Nos. 7-2, 7-3]. A Clerk's Entry of Default was entered on August 5, and the case was thereafter reassigned from the magistrate to this Court on August 6, 2014 [ECF Nos. 9, 10]. On August 7, 2014, the Court directed Plaintiff to file, for the Court's consideration, a Motion for Default Judgment, supported by all necessary affidavits and documentation, and a proposed Order [ECF No. 11].
Plaintiff filed its "Motion for Judgment Against Defendants" on August 14, 2014 [ECF No. 12]. In support of its Motion, Plaintiff submitted a Declaration of its counsel; an Affidavit executed by Plaintiffs's president; an "UFC Piracy Affidavit" signed by a private investigator from New York; pictures; a Memorandum of Points and Authorities; a "Rate Card" for UFC productions; and a significantly redacted copy of a Distributorship Agreement between Plaintiff and Zuffa, LLC, d/b/a the Ultimate Fighting Championship [ECF Nos. 12-1 through 12-8].
The Court issued an Order of Hearing on August 18, 2014, directing Plaintiff's counsel, Turntine, and Blair to appear for Default Hearing on September 17, 2014, and putting Defendants on notice of the likelihood of judgment being entered against them should they fail to appear [ECF No. 13]. On September 5, the Court granted "Plaintiff's Motion to Appear Telephonically at Plaintiff's Motion Hearing" [ECF Nos. 15, 16]. On September 15, 2014, counsel entered appearance on behalf of Turntine and Pit Stop, and filed a Motion to Set Aside Default the following day [ECF Nos. 17-19]. In their Motion to Set Aside Default, Turntine and Pit Stop claimed good cause existed to allow Defendants to adjudicate the claims on the merits, including the existence of meritorious defenses, in that the statute of limitations on the claims elapsed prior to the filing of the Complaint; the reason for their delay was inadvertent, as Defendants were not served with the summons; and the lack of significant prejudice to Plaintiff that would inhibit its ability to prosecute the action [ECF No. 21].
On September 16, 2014, Plaintiff filed copies of executed returns on the Summons [ECF Nos. 22-24]. On that same date, this Court granted the Motion to Set Aside Default as to Turntine and Pit Stop, instructing those defendants to answer or otherwise respond to the Complaint no later than September 23, 2014 [ECF No. 25]. Thereafter, counsel entered, for a special and limited appearance, on behalf of Defendant Blair, filing a Motion to Set Aside Default [ECF No. 28], which the Court granted on September 16, 2014 [ECF NO. 30]. Turntine and Pitstop filed the present Motion to Dismiss on September 24, 2014 [ECF Nos. 31, 32]. Blair filed his Motion to Dismiss on October 7, 2014 [ECF Nos. 33, 34].
II. LEGAL STANDARD
A party may move under Rule 12(b)(6) to dismiss a complaint for "fail[ing] to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss is to test "the sufficiency of a complaint[.]" M.M. Silta, Inc. v. Cleveland Cliffs, Inc., 616 F.3d 872, 876 (8th Cir. 2010).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). "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." Id. Ordinarily, only the facts alleged in the complaint are considered for purposes of a motion to dismiss; however, materials attached to the complaint may also be considered in construing its sufficiency. Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011).
When ruling on a motion to dismiss, a court "must liberally construe a complaint in favor of the plaintiff[.]" Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal theory, that claim must be dismissed for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). "Threadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual allegations as true, they are ...