United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO DISMISS
J. PECHMAN UNITED STATES SENIOR DISTRICT JUDGE.
above-entitled Court, having received and reviewed:
1. Plaintiff's Motion to Dismiss Defendants'
Counterclaims for Failure to State a Claim (Dkt. No. 29),
2. Defendants' Opposition to Plaintiff's Motion to
Dismiss Counterclaims (Dkt. No. 30),
3. Plaintiff's Reply in Support of Motion to Dismiss
Defendants' Counterclaims for Failure to State a Claim
(Dkt. No. 31),
attached declarations and exhibits, and relevant portions of
the record, rules as follows:
ORDERED that the motion is GRANTED, with leave to amend.
FURTHER ORDERED that Defendants have 14 days from the date of
this order to file an amended answer and counterclaim.
complaint alleges violations of 47 U.S.C. § 605 and 47
U.S.C § 553 (theft of a cable signal) and the tort of
trespass of chattel against Defendants BrewBaker, Inc. (d/b/a
BrewBakers Brewery) and Eleanor and Robert Brubaker. Dkt. No.
1 (“Complaint”). Following the filing of an
answer and counterclaim by Defendants (Dkt. No. 28;
“Answer, ” “Counterclaim”), Plaintiff
filed the instant motion to dismiss.
complaint alleges an unauthorized showing of a pay-per-view
(“PPV”) boxing match at a commercial
establishment owned and operated by the individual Defendants
(“the Brubakers”). See Complaint at
¶¶ 26, 34, and 39. Defendants assert as affirmative
defenses that they have no commercial establishment
containing a television, have never shown a television event
for profit at their brewery, and paid the appropriate viewing
fees for a private residential screening of the boxing match.
See Answer, Affirmative Defenses at ¶¶
also bring counterclaims against Plaintiff for
“trespass, intentional trespass, and intrusion, ”
and for a violation of RCW 19.86.090, Washington's
Consumer Protection Act (“CPA”). Id.,
Counterclaim, ¶¶ 10, 13-18. It is these
counterclaims which are the subject of Plaintiff's motion
Fed.R.Civ.P. 12(b)(6), the Court may dismiss a complaint for
"failure to state a claim upon which relief can be
granted." In ruling on a motion to dismiss, the Court
must construe the complaint in the light most favorable to
the non-moving party. Livid Holdings Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
The Court must accept all well-pleaded allegations of
material fact as true and draw all reasonable inferences in
favor of the plaintiff. Wyler Summit P'ship v. Turner
Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998).
is appropriate where a complaint fails to allege "enough
facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible on its face "when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). As a result, a complaint must
contain "more than labels and ...