Motion to Dismiss bachelor
Content
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1 LAW OFFICES OF RICHARD W. DAVIS RICHARD W. DAVIS (SBN 161858) 2 [email protected] 1901 Avenue of the Stars, Suite 200 3 Los Angeles, California 90067 Telephone: 310.551.4123 4 Facsimile: 323.843.9291 5 Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC 6 7 8 9 10 11 NZK PRODUCTIONS INC., a California corporation, and HORIZON 12 ALTERNATIVE TELEVISION INC., a Delaware corporation, 13 Plaintiffs, 14 vs. 15 STEPHEN CARBONE, an individual, 16 REALITY STEVE, LLC, a Texas limited liability corporation, and DOES 17 1 through 10, inclusive, 18 19 20 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 18, 2013, at 9:30 a.m., or as soon Defendants. CASE NO. CV 12-10887 GHK (Ex) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: March 18, 2013 Time: 9:30 a.m. Crtrm.: 650 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
22 thereafter as the matter may be heard in Courtroom 650 of the of the Western 23 District of the United States District Court for the Central District of California, 24 located at 255 E. Temple Street, Los Angeles, CA 90012, Defendants Stephen 25 Carbone and Reality Steve, LLC (“Defendants”) will and hereby do move the Court 26 to dismiss the complaint filed by Plaintiffs NZK Productions Inc. and Horizon 27 Alternative Television Inc. (“Plaintiffs”), pursuant to Fed. R. Civ. P. 12(b)(6), 28 because the complaint fails to state a claim upon which relief can be granted.
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NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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The Motion will be based upon this Notice, the attached Memorandum of
2 Points and Authorities, the pleadings and records on file herein, and upon such 3 further oral and documentary evidence as may be presented at the hearing of the 4 motion. 5 7 8 Dated: February 11, 2013 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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This motion is made following the conference of counsel pursuant to L.R. 7-3
6 which took place on January 14, 2013.
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
LAW OFFICES OF RICHARD W. DAVIS
By: /s/ RICHARD W. DAVIS Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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TABLE OF CONTENTS Page
4 MEMORANDUM OF POINTS AND AUTHORITIES............................................1 5 I. 6 II.
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
INTRODUCTION ..........................................................................................1 STATEMENT OF PERTINENT FACTS .......................................................1 A. B. C. D. THE PARTIES .....................................................................................1 THE PRIOR COURT ACTION............................................................1 THE WRITTEN SETTLEMENT AGREEMENT RESOLVING THE FIRST ACTION...........................................................................2 THE CURRENT LAWSUIT ................................................................4
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. III.
DISCUSSION.................................................................................................4 A. B. STANDARDS FOR EVALUATING A MOTION TO DISMISS.........4 BECAUSE THE COMPLAINT REFERENCES, BUT FAILS TO ATTACH, A SETTLEMENT AGREEMENT, THE COURT MAY CONSIDER THE ENTIRE SETTLEMENT AGREEMENT......................................................................................5 THE FIRST CAUSE OF ACTION FOR INTERFERENCE WITH CONTRACT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED................................................5 1. 2. 3. D. The First Cause Of Action Is Barred By The Express Terms Of The Settlement Agreement..........................................6 The First Cause Of Action Is Barred Because Plaintiffs Failed To Satisfy A Prerequisite To Filing The Claim ................6 The First Cause Of Action Fails To Allege Facts Sufficient To State A Claim ........................................................................7
C.
THE SECOND CAUSE OF ACTION FOR BREACH OF SETTLEMENT AGREEMENT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ....................................8
CONCLUSION ..............................................................................................8
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5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (1965) ..........................................4, 8
th 6 Branch v. Tunnell, 14 F.3d 449 (9 Cir. 1994)......................................................... 5 th 7 Conservation Force v. Salazar, 646 F.3d 1240 (9 Cir. 2011) .................................. 4 th 8 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5 Cir. 2008) ............................... 5 th 9 Knievel v. ESPN, 393 F.3d 1068 (9 Cir. 2005) ...................................................... 5
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
10 Nicosia v. De Rooy, 72 F.Supp.2d 1093 (N.D.Cal. 1999) ........................................ 4
th 11 Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4 26 (1998) .............................. 7 th 12 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9 Cir. 2010)......... 4
13 14 STATUTES 15 Fed. R. Civ. Pro. 12(b)(6) .................................................................................1, 4, 5 16 17 18 19 20 21 22 23 24 25 26 27 28
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The complaint filed by Plaintiffs NZK Productions Inc. and Horizon
4 Alternative Television Inc. (“Plaintiffs”) attempts to assert two causes of action, but 5 fails to state a claim upon which relief can be granted. The first cause of action for 6 intentional interference with contractual relations is barred by a settlement
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 agreement between the parties (the “Settlement Agreement”), and also fails to allege 8 any actual facts (as opposed to conclusory allegations) to establish any interference 9 with contract. The second cause of action for breach of settlement agreement also 10 fails to allege actual facts sufficient to establish the claim. For these reasons, the 11 complaint should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(6). 12 13 A. 14 II. STATEMENT OF PERTINENT FACTS THE PARTIES “The Bachelor” is a successful reality television show produced by Plaintiffs.
15 Complaint, ¶1.1 The Series revolves around a single bachelor eliminating female 16 contestants as he looks for love. Id. 17 Defendants operate a website known as www.realitysteve.com, which posts 18 updates and spoilers concerning the Series, including updates and spoilers about the 19 season presently being aired. Complaint, ¶¶16, 18. 20 B. 21 THE PRIOR COURT ACTION On or about December 6, 2011, Plaintiffs filed in this Court an action entitled
22 NZK Productions Inc., et al., v. Stephen Carbone, et al., Case No. 11-10118 GHK 23 (Ex), alleging claims against Defendants for intentional interference with contractual 24 relations and unfair competition (the “First Action”). See Plaintiffs’ Notice of 25 26 28
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Although the complaint neglects to allege that Plaintiffs are the producers of or 27 own any rights in the Series, those facts are not in dispute. 1
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1 Related Case, Docket No. 3.2 In May 2012, Plaintiffs and Defendants resolved the 2 First Action by entering into a written Settlement Agreement, discussed below. 3 C. 4 5 THE WRITTEN SETTLEMENT AGREEMENT RESOLVING THE FIRST ACTION To resolve the First Action, Defendants signed a Settlement Agreement,
6 pursuant to which they agreed, for a period of five years from May 31, 2012, not to
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 contact, directly or indirectly, “any Cast, Crew and/or other Employees (each as 8 defined in Paragraph 1.B.) of the Bachelor Series in violation of Paragraph 1.C., 9 below.” See Exhibit A, ¶1.A. 10 The terms “Cast,” “Crew” and “Employees” were specially defined in the 11 Settlement Agreement. See Exhibit A, ¶1.B. The term “Indirectly” was specially 12 defined in the Settlement Agreement to mean “to employ, offer financial 13 inducement, or pay financial inducement to a third-party intermediary to solicit non14 public information about the Bachelor Series from a Cast, Crew, or other 15 Employee.” Id. These special definitions are important because they established a 16 limited set of persons from whom Defendants could not solicit information 17 concerning the Series. 18 19 20 21 22 23 24 25 26 28
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The Settlement Agreement defined a breach as occurring in one of two ways: (1) where the Carbone Parties and Agents initiate Contact, directly or Indirectly, with any Cast, Crew, and/or other Employees of the Bachelor Series concerning any non-public details of the Bachelor Series; or (2) where the Carbone Parties and Agents do not initiate the Contact with any Cast, Crew, and/or other Employees of the Bachelor Series but, upon
Defendants request that the Court take judicial notice of Plaintiffs’ Notice of 27 Related Case, Docket Entry No. 3. 2
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inquiry and learning that the individual that Contacted them is a Cast, Crew, or other Employee of the Bachelor Series, offer or pay financial inducement for any non-public details of the Bachelor Series.
5 See Exhibit A, ¶1.C. This language of the Settlement Agreement is important 6 because it establishes a number of permissible ways in which Defendants could
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 obtain information concerning the Series, none of which would run afoul of the 8 Settlement Agreement. 9 In recognition of the fact that certain types of contact with Cast, Crew, 10 Employees and third parties was permitted, and in an effort to avoid any further 11 chilling of Defendants’ right of free speech, the Settlement Agreement imposed 12 upon Plaintiffs the following prerequisite to the filing of a suit seeking injunctive 13 relief: 14 15 16 17 18 20 22 23 24 25 26 27 28 The NZK Parties agree to provide written notice to the Carbone Parties of some evidence of breach (e.g., an email, letter, affidavit, etc.), and the Carbone Parties shall have ten (10) calendar days to respond to that evidence, before the NZK Parties seek injunctive relief.
19 See Exhibit A, ¶1.E. Finally, the parties to the Settlement Agreement agreed not to bring any claim 21 against the other except to enforce the Settlement Agreement: Each Party hereby covenants and agrees not to bring any claim, action, suit, or other proceeding against any other Party hereto, directly or indirectly, regarding or related in any matter [sic] to the claims released in this Agreement, except to enforce the Agreement, and each Party further covenants and agrees that this Agreement is a bar to any such claim, action, suit, or proceeding.
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1 See Exhibit A, ¶5.G. 2 D. 3 THE CURRENT LAWSUIT The 17th season of the Series premiered on January 7, 2013. Complaint, ¶2.
4 Before the series aired, Defendants posted on www.realitysteve.com certain spoilers 5 concerning the season. Id. at ¶¶ 18, 19. 6
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
Plaintiffs’ complaint includes two claims. The first claim for intentional
7 interference with contract includes a request for injunctive relief, and thus triggers 8 the pre-suit notice requirement set forth in Paragraph 1.E. of the Settlement 9 Agreement. Complaint, ¶31, Prayer No. 2. 10 11 A. 12 III. DISCUSSION STANDARDS FOR EVALUATING A MOTION TO DISMISS In ruling on a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6), the Court is
13 required to accept as true all material factual allegations in the complaint; however, 14 the Court is not bound to accept as true a legal conclusion couched as a factual 15 allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (1965); Nicosia v. 16 De Rooy, 72 F.Supp.2d 1093, 1097 (N.D.Cal. 1999). 17 Dismissal is proper if there is a “lack of a cognizable legal theory or the 18 absence of sufficient facts alleged under a cognizable theory.” Conservation Force 19 v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (emphasis added). “To survive a 20 motion to dismiss, a plaintiff’s complaint must have sufficient facts ‘to state a 21 facially plausible claim to relief.’” Id., quoting Shroyer v. New Cingular Wireless 22 Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (emphasis added). Factual 23 allegations must be enough to raise a right to relief above the speculative level. 24 Twombly, 550 U.S. at 555. 25 26 27 28
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BECAUSE THE COMPLAINT REFERENCES, BUT FAILS TO ATTACH, A SETTLEMENT AGREEMENT, THE COURT MAY CONSIDER THE ENTIRE SETTLEMENT AGREEMENT A plaintiff is not required to attach to the complaint the documents on which
5 it is based. However, if a plaintiff fails to do so, a defendant may attach to a Fed. R. 6 Civ. Pro. 12(b)(6) motion the documents referred to in the complaint to show that
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 they do not support the plaintiff’s claim. Branch v. Tunnell, 14 F.3d 449, 454 (9th 8 Cir. 1994) (overruled on other grounds); Dorsey v. Portfolio Equities, Inc., 540 F.3d 9 333, 338 (5th Cir. 2008) (when ruling on a motion to dismiss, a court is permitted to 10 consider documents incorporated into the complaint by reference). This practice 11 does not convert the motion to dismiss into a motion for summary judgment. 12 Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005). 13 Although Paragraph 33 of the complaint refers to the Settlement Agreement, a 14 copy is not attached. Perhaps it is not surprising that Plaintiffs would exclude the 15 Settlement Agreement since it establishes a complete bar to one of Plaintiffs’ 16 purported claims. In any event, the Settlement Agreement is attached to this motion 17 as Exhibit A. 18 C. 19 20 21 THE FIRST CAUSE OF ACTION FOR INTERFERENCE WITH CONTRACT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Plaintiffs’ attempt to state a claim for interference with contract fails for
22 several reasons. First, the claim is barred by the express terms of the Settlement 23 Agreement. Second, the claim is barred because Plaintiffs failed to satisfy a 24 contractually-imposed prerequisite to the filing of the claim. Third, the complaint is 25 devoid of facts sufficient to state a claim for interference with contract. 26 27 28
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1.
The First Cause Of Action Is Barred By The Express Terms Of The Settlement Agreement
Paragraph 5.G. of the Settlement Agreement bars Plaintiffs’ first cause of
4 action. When signing the Settlement Agreement, Plaintiffs expressly agreed “not to 5 bring any claim … against any other Party hereto … regarding or related in any 6 [manner] to the claims released in the Agreement, except to enforce the
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 Agreement.” See Exhibit A, p. 4. Plaintiffs further agreed that the Settlement 8 Agreement “is a bar to any such claim, action, suit, or proceeding.” Id. 9 The claims asserted in the first cause of action undeniably relate to those 10 claims released by the Settlement Agreement. Plaintiffs admitted this when filing 11 their Notice of Related Case: “[T]he First-Filed Action [the claims being released in 12 the Settlement Agreement] and the above-captioned action “involve the same 13 parties, as well as a claim for intentional interference with contractual relations 14 arising from the television show The Bachelor,” although based on different facts.” 15 See Notice of Related Case, Docket 3. However, because the present action asserts 16 claims “regarding or related in any [manner] to the claims released in [the 17 Settlement] Agreement,” Plaintiffs are precluded from filing the complaint before 18 this Court. Plaintiffs expressly agreed that the Settlement Agreement would bar any 19 claim other than one to enforce the Settlement Agreement. Because Plaintiffs’ 20 claim for intentional interference with contract is not a claim to enforce the 21 Settlement Agreement, it is barred by the express terms of the Parties’ Settlement 22 Agreement. 23 24 25 2. The First Cause Of Action Is Barred Because Plaintiffs Failed To Satisfy A Prerequisite To Filing The Claim Even if the interference with contract claim were not barred by the Settlement
26 Agreement, the Settlement Agreement imposes a condition that must be satisfied 27 prior to the filing of any suit seeking injunctive relief. Pursuant to Paragraph 1.E. of 28 the Settlement Agreement, before filing a claim for injunctive relief, Plaintiffs were
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1 obligated to provide written notice to Defendants of some evidence of breach, and 2 then afford Defendants 10 days to respond. Exhibit A, ¶ 1.E. The Complaint fails 3 to allege that this prerequisite was satisfied. 4 Without question, the first cause of action seeks injunctive relief, thus 5 triggering the pre-suit notice requirement. Paragraph 31 of the Complaint, and the 6 second item included in the Prayer for Relief, make clear that the first cause of
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 action seeks injunctive relief. Paragraph 31 discusses Defendants’ alleged ongoing 8 conduct and the resulting “great and irreparable injury, for which damages would 9 not afford adequate relief.” See Complaint, ¶31. And the Prayer clearly requests 10 injunctive relief: “As to the First Cause of Action, for a preliminary injunction and a 11 permanent injunction enjoining Defendants from interfering with Plaintiffs’ 12 contracts ….” See Complaint, Prayer No. 2. 13 Because the first cause of action seeks injunctive relief, and because Plaintiffs 14 failed to satisfy the pre-suit notice that is a prerequisite to any such claim, Plaintiffs’ 15 interference with contract claim fails. Thus, Plaintiffs have failed to state a claim 16 upon which relief can be granted. 17 18 19 3. The First Cause Of Action Fails To Allege Facts Sufficient To State A Claim To state a claim for interference with contract, Plaintiffs must set forth
20 sufficient facts to establish: (1) a valid contract between Plaintiffs and a third party; 21 (2) Defendants’ knowledge of the contract; (3) Defendants’ intentional acts designed 22 to induce breach or disruption of the contractual relationship; (4) actual breach or 23 disruption of the contractual relationship; and (5) resulting damage. Quelimane Co. 24 v. Stewart Title Guar. Co., 19 Cal.4th 26, 55 (1998). 25 The first cause of action consists entirely of conclusory allegations, and is 26 devoid of any facts which would state a facially plausible claim to relief. Plaintiffs 27 fail to allege a specific valid contract. Without pleading a specific valid contract, 28 Plaintiffs cannot allege Defendants’ knowledge of that contract. Without pleading
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1 Defendants’ knowledge of a specific valid contract, Plaintiffs cannot establish any 2 intentional acts designed to induce breach or disruption of that contract. Without 3 alleging a specific contract, Plaintiffs cannot allege an actual breach of that contract. 4 Plaintiffs must allege specific facts concerning the specific contract with 5 which Defendants purportedly interfered in order to raise a right to relief above a 6 speculative level. Anything short of that constitutes an absence of sufficient facts to
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 support a cognizable legal theory. 8 D. 9 10 11 THE SECOND CAUSE OF ACTION FOR BREACH OF SETTLEMENT AGREEMENT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Similarly, Plaintiffs’ breach of contract cause of action is factually deficient.
12 Although Plaintiffs allege the existence of the written Settlement Agreement, they 13 have not alleged how Defendants breached that agreement, other than in a 14 conclusory fashion: “Upon information and belief, the information posted by 15 Defendants on the Website was obtained in breach of the Settlement Agreement.” 16 Complaint, ¶35. The Court need not accept conclusory allegations as true. 17 Twombly, 550 U.S. at 555. Should not Plaintiffs have to identify the specific 18 persons contacted in order to establish that such contact was in violation of the 19 Settlement Agreement? The cause of action consists entirely of conclusory 20 allegations, but no specific facts which would state a facially plausible claim for 21 relief. That is insufficient. 22 23 IV. CONCLUSION Because Plaintiffs’ first cause of action is barred by the express terms of the
24 Settlement Agreement and sets forth only conclusory allegations rather than actual 25 facts, it should be dismissed. Similarly, because the second cause of action fails to 26 allege sufficient facts to support a cognizable legal theory, it should be dismissed. 27 28
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1 Accordingly, Defendants respectfully request that this motion be granted and 2 Plaintiffs’ complaint be dismissed. 3 4 Dated: February 11, 2013 5 6
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
LAW OFFICES OF RICHARD W. DAVIS
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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By: /s/ RICHARD W. DAVIS Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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1 LAW OFFICES OF RICHARD W. DAVIS RICHARD W. DAVIS (SBN 161858) 2 [email protected] 1901 Avenue of the Stars, Suite 200 3 Los Angeles, California 90067 Telephone: 310.551.4123 4 Facsimile: 323.843.9291 5 Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC 6 7 8 9 10 11 NZK PRODUCTIONS INC., a California corporation, and HORIZON 12 ALTERNATIVE TELEVISION INC., a Delaware corporation, 13 Plaintiffs, 14 vs. 15 STEPHEN CARBONE, an individual, 16 REALITY STEVE, LLC, a Texas limited liability corporation, and DOES 17 1 through 10, inclusive, 18 19 20 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 18, 2013, at 9:30 a.m., or as soon Defendants. CASE NO. CV 12-10887 GHK (Ex) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: March 18, 2013 Time: 9:30 a.m. Crtrm.: 650 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
22 thereafter as the matter may be heard in Courtroom 650 of the of the Western 23 District of the United States District Court for the Central District of California, 24 located at 255 E. Temple Street, Los Angeles, CA 90012, Defendants Stephen 25 Carbone and Reality Steve, LLC (“Defendants”) will and hereby do move the Court 26 to dismiss the complaint filed by Plaintiffs NZK Productions Inc. and Horizon 27 Alternative Television Inc. (“Plaintiffs”), pursuant to Fed. R. Civ. P. 12(b)(6), 28 because the complaint fails to state a claim upon which relief can be granted.
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The Motion will be based upon this Notice, the attached Memorandum of
2 Points and Authorities, the pleadings and records on file herein, and upon such 3 further oral and documentary evidence as may be presented at the hearing of the 4 motion. 5 7 8 Dated: February 11, 2013 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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This motion is made following the conference of counsel pursuant to L.R. 7-3
6 which took place on January 14, 2013.
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
LAW OFFICES OF RICHARD W. DAVIS
By: /s/ RICHARD W. DAVIS Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC
NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
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TABLE OF CONTENTS Page
4 MEMORANDUM OF POINTS AND AUTHORITIES............................................1 5 I. 6 II.
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
INTRODUCTION ..........................................................................................1 STATEMENT OF PERTINENT FACTS .......................................................1 A. B. C. D. THE PARTIES .....................................................................................1 THE PRIOR COURT ACTION............................................................1 THE WRITTEN SETTLEMENT AGREEMENT RESOLVING THE FIRST ACTION...........................................................................2 THE CURRENT LAWSUIT ................................................................4
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. III.
DISCUSSION.................................................................................................4 A. B. STANDARDS FOR EVALUATING A MOTION TO DISMISS.........4 BECAUSE THE COMPLAINT REFERENCES, BUT FAILS TO ATTACH, A SETTLEMENT AGREEMENT, THE COURT MAY CONSIDER THE ENTIRE SETTLEMENT AGREEMENT......................................................................................5 THE FIRST CAUSE OF ACTION FOR INTERFERENCE WITH CONTRACT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED................................................5 1. 2. 3. D. The First Cause Of Action Is Barred By The Express Terms Of The Settlement Agreement..........................................6 The First Cause Of Action Is Barred Because Plaintiffs Failed To Satisfy A Prerequisite To Filing The Claim ................6 The First Cause Of Action Fails To Allege Facts Sufficient To State A Claim ........................................................................7
C.
THE SECOND CAUSE OF ACTION FOR BREACH OF SETTLEMENT AGREEMENT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED ....................................8
CONCLUSION ..............................................................................................8
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5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (1965) ..........................................4, 8
th 6 Branch v. Tunnell, 14 F.3d 449 (9 Cir. 1994)......................................................... 5 th 7 Conservation Force v. Salazar, 646 F.3d 1240 (9 Cir. 2011) .................................. 4 th 8 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5 Cir. 2008) ............................... 5 th 9 Knievel v. ESPN, 393 F.3d 1068 (9 Cir. 2005) ...................................................... 5
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
10 Nicosia v. De Rooy, 72 F.Supp.2d 1093 (N.D.Cal. 1999) ........................................ 4
th 11 Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4 26 (1998) .............................. 7 th 12 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9 Cir. 2010)......... 4
13 14 STATUTES 15 Fed. R. Civ. Pro. 12(b)(6) .................................................................................1, 4, 5 16 17 18 19 20 21 22 23 24 25 26 27 28
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The complaint filed by Plaintiffs NZK Productions Inc. and Horizon
4 Alternative Television Inc. (“Plaintiffs”) attempts to assert two causes of action, but 5 fails to state a claim upon which relief can be granted. The first cause of action for 6 intentional interference with contractual relations is barred by a settlement
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 agreement between the parties (the “Settlement Agreement”), and also fails to allege 8 any actual facts (as opposed to conclusory allegations) to establish any interference 9 with contract. The second cause of action for breach of settlement agreement also 10 fails to allege actual facts sufficient to establish the claim. For these reasons, the 11 complaint should be dismissed pursuant to Fed. R. Civ. Pro. 12(b)(6). 12 13 A. 14 II. STATEMENT OF PERTINENT FACTS THE PARTIES “The Bachelor” is a successful reality television show produced by Plaintiffs.
15 Complaint, ¶1.1 The Series revolves around a single bachelor eliminating female 16 contestants as he looks for love. Id. 17 Defendants operate a website known as www.realitysteve.com, which posts 18 updates and spoilers concerning the Series, including updates and spoilers about the 19 season presently being aired. Complaint, ¶¶16, 18. 20 B. 21 THE PRIOR COURT ACTION On or about December 6, 2011, Plaintiffs filed in this Court an action entitled
22 NZK Productions Inc., et al., v. Stephen Carbone, et al., Case No. 11-10118 GHK 23 (Ex), alleging claims against Defendants for intentional interference with contractual 24 relations and unfair competition (the “First Action”). See Plaintiffs’ Notice of 25 26 28
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Although the complaint neglects to allege that Plaintiffs are the producers of or 27 own any rights in the Series, those facts are not in dispute. 1
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1 Related Case, Docket No. 3.2 In May 2012, Plaintiffs and Defendants resolved the 2 First Action by entering into a written Settlement Agreement, discussed below. 3 C. 4 5 THE WRITTEN SETTLEMENT AGREEMENT RESOLVING THE FIRST ACTION To resolve the First Action, Defendants signed a Settlement Agreement,
6 pursuant to which they agreed, for a period of five years from May 31, 2012, not to
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 contact, directly or indirectly, “any Cast, Crew and/or other Employees (each as 8 defined in Paragraph 1.B.) of the Bachelor Series in violation of Paragraph 1.C., 9 below.” See Exhibit A, ¶1.A. 10 The terms “Cast,” “Crew” and “Employees” were specially defined in the 11 Settlement Agreement. See Exhibit A, ¶1.B. The term “Indirectly” was specially 12 defined in the Settlement Agreement to mean “to employ, offer financial 13 inducement, or pay financial inducement to a third-party intermediary to solicit non14 public information about the Bachelor Series from a Cast, Crew, or other 15 Employee.” Id. These special definitions are important because they established a 16 limited set of persons from whom Defendants could not solicit information 17 concerning the Series. 18 19 20 21 22 23 24 25 26 28
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The Settlement Agreement defined a breach as occurring in one of two ways: (1) where the Carbone Parties and Agents initiate Contact, directly or Indirectly, with any Cast, Crew, and/or other Employees of the Bachelor Series concerning any non-public details of the Bachelor Series; or (2) where the Carbone Parties and Agents do not initiate the Contact with any Cast, Crew, and/or other Employees of the Bachelor Series but, upon
Defendants request that the Court take judicial notice of Plaintiffs’ Notice of 27 Related Case, Docket Entry No. 3. 2
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inquiry and learning that the individual that Contacted them is a Cast, Crew, or other Employee of the Bachelor Series, offer or pay financial inducement for any non-public details of the Bachelor Series.
5 See Exhibit A, ¶1.C. This language of the Settlement Agreement is important 6 because it establishes a number of permissible ways in which Defendants could
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 obtain information concerning the Series, none of which would run afoul of the 8 Settlement Agreement. 9 In recognition of the fact that certain types of contact with Cast, Crew, 10 Employees and third parties was permitted, and in an effort to avoid any further 11 chilling of Defendants’ right of free speech, the Settlement Agreement imposed 12 upon Plaintiffs the following prerequisite to the filing of a suit seeking injunctive 13 relief: 14 15 16 17 18 20 22 23 24 25 26 27 28 The NZK Parties agree to provide written notice to the Carbone Parties of some evidence of breach (e.g., an email, letter, affidavit, etc.), and the Carbone Parties shall have ten (10) calendar days to respond to that evidence, before the NZK Parties seek injunctive relief.
19 See Exhibit A, ¶1.E. Finally, the parties to the Settlement Agreement agreed not to bring any claim 21 against the other except to enforce the Settlement Agreement: Each Party hereby covenants and agrees not to bring any claim, action, suit, or other proceeding against any other Party hereto, directly or indirectly, regarding or related in any matter [sic] to the claims released in this Agreement, except to enforce the Agreement, and each Party further covenants and agrees that this Agreement is a bar to any such claim, action, suit, or proceeding.
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1 See Exhibit A, ¶5.G. 2 D. 3 THE CURRENT LAWSUIT The 17th season of the Series premiered on January 7, 2013. Complaint, ¶2.
4 Before the series aired, Defendants posted on www.realitysteve.com certain spoilers 5 concerning the season. Id. at ¶¶ 18, 19. 6
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
Plaintiffs’ complaint includes two claims. The first claim for intentional
7 interference with contract includes a request for injunctive relief, and thus triggers 8 the pre-suit notice requirement set forth in Paragraph 1.E. of the Settlement 9 Agreement. Complaint, ¶31, Prayer No. 2. 10 11 A. 12 III. DISCUSSION STANDARDS FOR EVALUATING A MOTION TO DISMISS In ruling on a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6), the Court is
13 required to accept as true all material factual allegations in the complaint; however, 14 the Court is not bound to accept as true a legal conclusion couched as a factual 15 allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (1965); Nicosia v. 16 De Rooy, 72 F.Supp.2d 1093, 1097 (N.D.Cal. 1999). 17 Dismissal is proper if there is a “lack of a cognizable legal theory or the 18 absence of sufficient facts alleged under a cognizable theory.” Conservation Force 19 v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (emphasis added). “To survive a 20 motion to dismiss, a plaintiff’s complaint must have sufficient facts ‘to state a 21 facially plausible claim to relief.’” Id., quoting Shroyer v. New Cingular Wireless 22 Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (emphasis added). Factual 23 allegations must be enough to raise a right to relief above the speculative level. 24 Twombly, 550 U.S. at 555. 25 26 27 28
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BECAUSE THE COMPLAINT REFERENCES, BUT FAILS TO ATTACH, A SETTLEMENT AGREEMENT, THE COURT MAY CONSIDER THE ENTIRE SETTLEMENT AGREEMENT A plaintiff is not required to attach to the complaint the documents on which
5 it is based. However, if a plaintiff fails to do so, a defendant may attach to a Fed. R. 6 Civ. Pro. 12(b)(6) motion the documents referred to in the complaint to show that
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 they do not support the plaintiff’s claim. Branch v. Tunnell, 14 F.3d 449, 454 (9th 8 Cir. 1994) (overruled on other grounds); Dorsey v. Portfolio Equities, Inc., 540 F.3d 9 333, 338 (5th Cir. 2008) (when ruling on a motion to dismiss, a court is permitted to 10 consider documents incorporated into the complaint by reference). This practice 11 does not convert the motion to dismiss into a motion for summary judgment. 12 Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005). 13 Although Paragraph 33 of the complaint refers to the Settlement Agreement, a 14 copy is not attached. Perhaps it is not surprising that Plaintiffs would exclude the 15 Settlement Agreement since it establishes a complete bar to one of Plaintiffs’ 16 purported claims. In any event, the Settlement Agreement is attached to this motion 17 as Exhibit A. 18 C. 19 20 21 THE FIRST CAUSE OF ACTION FOR INTERFERENCE WITH CONTRACT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Plaintiffs’ attempt to state a claim for interference with contract fails for
22 several reasons. First, the claim is barred by the express terms of the Settlement 23 Agreement. Second, the claim is barred because Plaintiffs failed to satisfy a 24 contractually-imposed prerequisite to the filing of the claim. Third, the complaint is 25 devoid of facts sufficient to state a claim for interference with contract. 26 27 28
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1.
The First Cause Of Action Is Barred By The Express Terms Of The Settlement Agreement
Paragraph 5.G. of the Settlement Agreement bars Plaintiffs’ first cause of
4 action. When signing the Settlement Agreement, Plaintiffs expressly agreed “not to 5 bring any claim … against any other Party hereto … regarding or related in any 6 [manner] to the claims released in the Agreement, except to enforce the
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 Agreement.” See Exhibit A, p. 4. Plaintiffs further agreed that the Settlement 8 Agreement “is a bar to any such claim, action, suit, or proceeding.” Id. 9 The claims asserted in the first cause of action undeniably relate to those 10 claims released by the Settlement Agreement. Plaintiffs admitted this when filing 11 their Notice of Related Case: “[T]he First-Filed Action [the claims being released in 12 the Settlement Agreement] and the above-captioned action “involve the same 13 parties, as well as a claim for intentional interference with contractual relations 14 arising from the television show The Bachelor,” although based on different facts.” 15 See Notice of Related Case, Docket 3. However, because the present action asserts 16 claims “regarding or related in any [manner] to the claims released in [the 17 Settlement] Agreement,” Plaintiffs are precluded from filing the complaint before 18 this Court. Plaintiffs expressly agreed that the Settlement Agreement would bar any 19 claim other than one to enforce the Settlement Agreement. Because Plaintiffs’ 20 claim for intentional interference with contract is not a claim to enforce the 21 Settlement Agreement, it is barred by the express terms of the Parties’ Settlement 22 Agreement. 23 24 25 2. The First Cause Of Action Is Barred Because Plaintiffs Failed To Satisfy A Prerequisite To Filing The Claim Even if the interference with contract claim were not barred by the Settlement
26 Agreement, the Settlement Agreement imposes a condition that must be satisfied 27 prior to the filing of any suit seeking injunctive relief. Pursuant to Paragraph 1.E. of 28 the Settlement Agreement, before filing a claim for injunctive relief, Plaintiffs were
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1 obligated to provide written notice to Defendants of some evidence of breach, and 2 then afford Defendants 10 days to respond. Exhibit A, ¶ 1.E. The Complaint fails 3 to allege that this prerequisite was satisfied. 4 Without question, the first cause of action seeks injunctive relief, thus 5 triggering the pre-suit notice requirement. Paragraph 31 of the Complaint, and the 6 second item included in the Prayer for Relief, make clear that the first cause of
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 action seeks injunctive relief. Paragraph 31 discusses Defendants’ alleged ongoing 8 conduct and the resulting “great and irreparable injury, for which damages would 9 not afford adequate relief.” See Complaint, ¶31. And the Prayer clearly requests 10 injunctive relief: “As to the First Cause of Action, for a preliminary injunction and a 11 permanent injunction enjoining Defendants from interfering with Plaintiffs’ 12 contracts ….” See Complaint, Prayer No. 2. 13 Because the first cause of action seeks injunctive relief, and because Plaintiffs 14 failed to satisfy the pre-suit notice that is a prerequisite to any such claim, Plaintiffs’ 15 interference with contract claim fails. Thus, Plaintiffs have failed to state a claim 16 upon which relief can be granted. 17 18 19 3. The First Cause Of Action Fails To Allege Facts Sufficient To State A Claim To state a claim for interference with contract, Plaintiffs must set forth
20 sufficient facts to establish: (1) a valid contract between Plaintiffs and a third party; 21 (2) Defendants’ knowledge of the contract; (3) Defendants’ intentional acts designed 22 to induce breach or disruption of the contractual relationship; (4) actual breach or 23 disruption of the contractual relationship; and (5) resulting damage. Quelimane Co. 24 v. Stewart Title Guar. Co., 19 Cal.4th 26, 55 (1998). 25 The first cause of action consists entirely of conclusory allegations, and is 26 devoid of any facts which would state a facially plausible claim to relief. Plaintiffs 27 fail to allege a specific valid contract. Without pleading a specific valid contract, 28 Plaintiffs cannot allege Defendants’ knowledge of that contract. Without pleading
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1 Defendants’ knowledge of a specific valid contract, Plaintiffs cannot establish any 2 intentional acts designed to induce breach or disruption of that contract. Without 3 alleging a specific contract, Plaintiffs cannot allege an actual breach of that contract. 4 Plaintiffs must allege specific facts concerning the specific contract with 5 which Defendants purportedly interfered in order to raise a right to relief above a 6 speculative level. Anything short of that constitutes an absence of sufficient facts to
LAW OFFICES OF RICHARD W. DAVIS 1901 Avenue of the Stars, Suite 200 Los Angeles, California 90067 Tel 310.551.4123 | Fax 323.843.9291
7 support a cognizable legal theory. 8 D. 9 10 11 THE SECOND CAUSE OF ACTION FOR BREACH OF SETTLEMENT AGREEMENT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Similarly, Plaintiffs’ breach of contract cause of action is factually deficient.
12 Although Plaintiffs allege the existence of the written Settlement Agreement, they 13 have not alleged how Defendants breached that agreement, other than in a 14 conclusory fashion: “Upon information and belief, the information posted by 15 Defendants on the Website was obtained in breach of the Settlement Agreement.” 16 Complaint, ¶35. The Court need not accept conclusory allegations as true. 17 Twombly, 550 U.S. at 555. Should not Plaintiffs have to identify the specific 18 persons contacted in order to establish that such contact was in violation of the 19 Settlement Agreement? The cause of action consists entirely of conclusory 20 allegations, but no specific facts which would state a facially plausible claim for 21 relief. That is insufficient. 22 23 IV. CONCLUSION Because Plaintiffs’ first cause of action is barred by the express terms of the
24 Settlement Agreement and sets forth only conclusory allegations rather than actual 25 facts, it should be dismissed. Similarly, because the second cause of action fails to 26 allege sufficient facts to support a cognizable legal theory, it should be dismissed. 27 28
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1 Accordingly, Defendants respectfully request that this motion be granted and 2 Plaintiffs’ complaint be dismissed. 3 4 Dated: February 11, 2013 5 6
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LAW OFFICES OF RICHARD W. DAVIS
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By: /s/ RICHARD W. DAVIS Attorneys for Defendants STEPHEN CARBONE and REALITY STEVE, LLC
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