G&G Closed Circuit Events LLC v. Villegas ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 G&G Closed Circuit Events LLC, No. CV-22-01892-PHX-ROS 10 Plaintiff, ORDER 11 v. 12 Israel Higuera Villegas, et al., 13 Defendants. 14 15 Plaintiff seeks leave to conduct discovery to determine how Defendants “unlawfully 16 intercepted, received and exhibited” the television signal of a boxing match. Because a 17 plaintiff is not entitled to conduct discovery to determine the factual basis, if any, for its 18 claims, the request to conduct discovery will be denied. And given Plaintiff’s statement 19 that it cannot pursue its claims absent discovery, the complaint will be dismissed without 20 prejudice. Should Plaintiff discover a valid factual basis to pursue claims against 21 Defendants, Plaintiff will be free to do so. 22 Plaintiff’s complaint alleges claims under 47 U.S.C. § 553(a)(1) and 47 U.S.C. 23 § 605(a). As explained in a prior Order, “if Defendants received the television signal of 24 the boxing match through a cable tv system, § 553 might apply” but “[i]f Defendants 25 received the signal through a satellite television service, § 605 might apply.” (Doc. 17 at 26 2). Apparently relying on Federal Rule of Civil Procedure 8(d)(2) authorizing pleading in 27 the alternative, Plaintiff’s complaint alleged Defendants received the signal either through 28 a cable tv system or a satellite television system. Defendants did not respond to the 1 complaint and their default was entered. Plaintiff then filed a motion for default judgment, 2 seeking judgment solely under § 605. The Court denied that motion because the complaint 3 did not allege Defendants received the signal through a satellite television service, a 4 necessary factual allegation for liability under § 605 to exist.1 (Doc. 2). The Court ordered 5 Plaintiff “to file an amended complaint identifying the type of signal Defendants allegedly 6 intercepted and displayed.” (Doc. 2 at 2). In effect, the Court ordered Plaintiff to allege 7 sufficient facts supporting its claim under § 605 instead of merely reciting the elements of 8 such a claim. (Doc. 1 at 8) (alleging “Defendants intercepted, received and published the 9 [boxing match]”). 10 Instead of filing an amended complaint, Plaintiff filed a motion for leave to seek 11 discovery. Plaintiff explained it could not amend the complaint because, “[a]t this time,” 12 it does not know how Defendants received the signal. (Doc. 18-1 at 2). Because Plaintiff 13 has no idea how Defendants received the signal, Plaintiff seeks leave to propound 14 discovery to Defendants. If, as is overwhelmingly likely, Defendants do not respond to 15 Plaintiff’s discovery requests, Plaintiff will then propound discovery requests to every 16 major telecommunications company in Phoenix. Plaintiff expects to need discovery from 17 at least the following companies: Cox, CenturyLink, Spectrum, DirecTv (AT&T), Dish, 18 Medicacom Cable, Cableone (Sparklight), T-Mobile, HughesNet, Viasat, and Quantum 19 Fiber. 20 The time to investigate the factual basis for one’s claims is before filing the 21 complaint, not after. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Rule 8 marks a 22 notable and generous departure from the hypertechnical, code-pleading regime of a prior 23 1 Once default has been entered, a court must “take the well-pleaded factual allegations” 24 of the complaint as true. Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). But many courts have concluded factual allegations are not “well pleaded” in the 25 context of seeking default judgment when the factual allegations are contradicted in the complaint itself. See, e.g., In re Indus. Diamonds Antitrust Litig., 119 F. Supp. 2d 418, 420 26 (S.D.N.Y. 2000); Alexis v. PMM Enterprises LLC, 2018 WL 5456491, at *1 n.2 (D. Conn. Oct. 29, 2018). Here, all the factual allegations in Plaintiff’s complaint cannot be true. 27 Defendants may have received the signal via cable or via satellite, but there is no possibility Defendants received the signal using both technologies. In such a situation, the Court has 28 no way to decide which of the two mutually exclusive factual allegations should be accepted as true. 1 era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more 2 than conclusions.”). It is inappropriate for a plaintiff to seek discovery after filing its 3 complaint to determine the most basic facts underlying its claims. Here, if Plaintiff does 4 not know how the television signal was received, it is not clear how counsel concluded this 5 suit could be brought at this time. See Fed. R. Civ. P. 11(b)(3) (requiring “factual 6 contentions have evidentiary support or, if specifically so identified, will likely have 7 evidentiary support”). 8 Plaintiff appears to believe the bare allegations that Defendants displayed the boxing 9 match establish Defendants necessarily will be liable under either §§ 553 or 605. But even 10 accepting Defendants displayed the boxing match without authorization, it is not certain 11 they will be liable under either of those statutes. As noted by the Ninth Circuit in an opinion 12 involving the same plaintiff and same plaintiff’s counsel, there is an open question 13 “[w]hether §§ 553 and 605 apply when the pirated program is transmitted via Internet 14 streaming.” G & G Closed Cir. Events, LLC v. Liu, 45 F.4th 1113, 1115 (9th Cir. 2022). 15 In other words, if Defendants received the television signal over the Internet, it is possible 16 Plaintiff does not have a viable claim under §§ 553 or 605. See id. (noting district court 17 concluded transmission via Internet meant neither statute applied). The Court will not 18 allow Plaintiff to propound discovery to Defendants and subpoenas to a long list of 19 companies based solely on Plaintiff’s hope that it will discover a viable factual basis for an 20 already-pending claim. 21 Plaintiff is free to investigate and determine the factual basis to assert claims against 22 Defendants, but Plaintiff’s current complaint will be dismissed without prejudice. 23 Accordingly, 24 IT IS ORDERED the Motion to Conduct Discovery (Doc. 18) is DENIED. 25 … 26 … 27 … 28 … 1 IT IS FURTHER ORDERED the Clerk of Court shall enter a judgment of 2|| DISMISSAL WITHOUT PREJUDICE. 3 Dated this 6th day of June, 2023. 4 fo _ 5 — . 7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-