Professional Documents
Culture Documents
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Defendants.
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 1
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A.
B.
ARGUMENT .................................................................................................................. 8
A.
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B.
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C.
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D.
CONCLUSION ............................................................................................................. 39
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TABLE OF AUTHORITIES
Page(s)
Cases
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Sher v. Johnson,
911 F.2d 1357 (9th Cir. 1990) ................................................................................... 6
Slater v. A.G. Edwards & Sons, Inc.,
719 F.3d 1190 (10th Cir. 2013) ............................................................................... 30
Starr v. Baca,
652 F.3d 1202 (9th Cir. 2011) ................................................................................... 7
Stump v. Sparkman,
435 U.S. 349 (1978)............................................................................................. 7, 16
TCR Sports Broad. Holding, LLC v. FCC,
679 F.3d 269 (4th Cir. 2012) ..................................................................................... 3
Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,
368 F.3d 1053 (9th Cir. 2004) ................................................................................. 33
Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622 (1994)................................................................................................. 32
Van Buskirk v. Cable News Network, Inc.,
284 F.3d 977 (9th Cir. 2002) ................................................................................... 28
Walden v. Fiore,
134 S. Ct. 1115 (2014)................................................................................... 9, 15, 16
Wood v. Moss,
134 S. Ct. 2056 (2014)................................................................................... 7, 17, 20
Statutes
05 U.S.C. 551(6) ........................................................................................................ 18
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Regulations
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Rules
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Other Authorities
FCC Release, Commission Seeks Comment On Applications of Comcast
Corporation, General Electric Company, and NBC Universal, Inc., to Assign
and Transfer Control of FCC Licenses (Mar. 18, 2010) ......................................... 19
FCC, Memorandum Opinion and Order,
In re Applications of Comcast Corp., Gen. Electric Co. and NBCUniversal,
Inc., MB Docket No. 10-56 (Jan. 18, 2011) ...................................................... 18, 20
In re Herring Broad., Inc.,
24 F.C.C. Rcd. 12967 (2009)..................................................................................... 3
In re Herring Broad., Inc.,
26 F.C.C. Rcd. 8971 (2011)..................................................................................... 32
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INTRODUCTION
(NAACP) and the National Urban League, Inc. (NUL)i.e., the Nations oldest
against African Americans. The alleged conspiracy also includes another respected
civil rights organization, the National Action Network, Inc. (NAN), Rev. Al
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Sharpton, and a former FCC Commissioner, Meredith Baker, who is claimed to have
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Plaintiffs outlandish and defamatory claims under the applicable pleading standard.
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Nor does the Complaint bother to allege facts sufficient to establish personal
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dollarsare entirely fantastical and do not remotely resemble the factually supported
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The utter lack of factual support for Plaintiffs claims is obvious even from the
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Complaint itself. As Plaintiffs are forced to concede, Comcast routinely contracts with
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according to Plaintiffs, because the purported focus of the alleged discrimination is not
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Compl. 2. African Americans who do not meet Plaintiffs peculiar notions of racial
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identity are offensively labeled as token fronts and window dressing. E.g., Compl.
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7, 21, 22, 28. Plaintiffs thus will ask this Court to rule, under a pleading standard
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that requires claims to be plausible, Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), that
teamed up with the NAACP, the National Urban League, NAN, and the Rev. Al
would be difficult to overstate the utter implausibility of these claims. And if more
discrimination by admitting in the Complaint that Comcast does, in fact, offer carriage
on its cable systems to a company owned 100% by African Americans. Compl. 55.
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Memorandum of Understanding (MOU) that Comcast entered into in 2010 with the
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NAACP, NUL, and NAN. Comcast signed the MOU during its acquisition of
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made by the combined company. Plaintiffs argue that the MOU is really a Jim Crow
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process that relegates African American content owners to an inferior path when being
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considered for carriage. Compl. 13. Of course, this Court may examine the MOU
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itself in deciding this motion to dismiss, because Plaintiffs refer to it as a basis for their
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claims. See, e.g., Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir.
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2012) (courts deciding a motion to dismiss may take into account documents whose
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contents are alleged in a complaint and whose authenticity no party questions, but
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which are not physically attached to the [plaintiffs] pleading (quoting Knievel v.
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ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005))) (alteration in original). The MOU on its
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face shows that Comcast committed to the civil rights organizations to increase
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would weigh heavily against any new request for carriage on Comcasts cable systems.
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That is, the MOU is a benign effort to promote diversity that in no respect supplants
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other preexisting avenues for obtaining carriage. It is shameful that Plaintiffs claim to
champion racial justice for African Americans even as they defame respected civil
survive dismissal.
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States. Comcast acquires content for its subscribers through negotiations with content
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providers and, in most cases, pays a license fee to the content owner on a per
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subscriber basis. But cable systems like Comcast have limited bandwidth and cannot
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carry all content offered in the marketplace. Thus, as the Federal Communications
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Commission (FCC) and numerous courts have recognized, each request for carriage
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requires Comcast to make business and editorial judgments about what programming
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will provide the most value for itself and its subscribers. See In re Herring Broad.,
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Inc., 24 F.C.C. Rcd. 12967, 12991 (2009) (noting that Comcasts practice is to carry
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(emphasis added); Comcast Cable Commcns, LLC v. FCC, 717 F.3d 982, 993 (D.C.
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Cir. 2013) (Kavanaugh, J., concurring) (cable carrier has a First Amendment right to
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exercise editorial control over content it offers); TCR Sports Broad. Holding, LLC v.
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FCC, 679 F.3d 269, 276 (4th Cir. 2012) (to assess a carriage request, cable company
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nondiscriminatory reason for denying [the applicant] carriage); Comcast Cable, 717
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F.3d at 985 (majority op.) (noting that cable carriers must balance the costs and
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benefits associated with a wide range of factors, and identifying salient business
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considerations that would suggest it was appropriate to deny carriage).1 Over the last
several years (the period in the Complaint), Comcast has rejected hundreds of requests
for carriage.
NAAAOM, an organization that was formed only a few weeks before the
Complaint was filed in this case, ostensibly exists to secure the economic inclusion of
however, the group is just a shell organization for ESN, a self-described 100%
no apparent function other than to pursue this litigation (and similar suits against
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AT&T and DirecTV). ESN owns seven high-definition video programming services
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that cover various subjects. ESN sought carriage on Comcasts cable systems, which
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was denied. Plaintiffs acknowledge that Comcast explained its business concerns
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fraudulent, pretextual excuses. Compl. 111; see also id. 53. Among other
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things, Comcast expressed concern that it has only limited bandwidth on which to offer
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new channels, Compl. 88, and that ESNs channels have low consumer demand,
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Compl. 89.
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The Complaint nowhere contains allegations setting forth facts that would
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negate the most plausible interpretation of these facts, to wit, that Comcast decided not
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to offer carriage to ESNs channels because it found no good business reason to do so.
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As shown by Plaintiffs own complaint against DirecTV and AT&T, which this Court
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may judicially notice, other video programming carriers also rejected ESNs carriage
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demands. See NAAAOM v. AT&T, Inc., No. 2:14-cv-09256-PJW, Dkt. 22 (C.D. Cal.).
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Plaintiffs utter failure to plead any facts negating the most natural interpretation of the
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These cases involved allegations that cable operators gave preference to content
that they owned by discriminating against unaffiliated carriage applicants, in
violation of Section 616 of the Communications Act of 1934.
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events they allege should be the end of the matter under Iqbal. That conclusion should
be sealed by the fact that the alternative explanation Plaintiffs urgean outlandish
In the end, there is no mystery about what truly underlies Plaintiffs allegations.
Having failed to secure carriage in the marketplace under ordinary business standards,
Plaintiffs sued two sets of video programming providers that, at the time this action
Time Warner Cable here, and DirecTV and AT&T in another case pending in this
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courthouseand claimed extravagant damages in each suit ($20 billion in this case,
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$10 billion in the DirecTV and AT&T suit). Plaintiffs detected a chance to take
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hoped to gain settlement leverage for undeserved carriage and licensing fees. But
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controlling law forecloses Plaintiffs unseemly ploy. This Court lacks personal
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jurisdiction over most Defendants, and Plaintiffs have failed to state any plausible
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claim for relief. The Court should put a stop to Plaintiffs abuse of its process and
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SUMMARY OF ALLEGATIONS
The Complaint alleges that ESN is the only 100% African American-owned
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Compl. 35. Plaintiffs allege that ESN has reached out to Comcast in an attempt to
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license its video programming services for carriage on Comcasts cable systems.
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Compl. 53. The Complaint alleges that Comcast met with ESN on multiple
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occasions, and then declined to license ESNs content. Compl. 5253. Plaintiffs
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allege that ESN has complied with each of Comcasts demands, but that Comcast
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still refuses to carry ESNs channels based on racial animus. Compl. 53, 94.
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The Complaint also alleges that Comcast influenced Ms. Baker with an offer of
future employment during her time as an FCC Commissioner, in order to secure her
support for Comcasts acquisition of NBCUniversal in 2010. Compl. 63. During the
acquisition review process, Plaintiffs further contend that Comcast made cash
donations to NUL, the NAACP, and NAN, and agreed to give Rev. Sharpton a
70. The Complaint alleges that each of the civil rights organizations signed the
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including [ESN.] Id. The Complaint alleges that Comcast has used the MOU[ ] to
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create a segregated and unequal path for 100% African American-owned channels to
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LEGAL STANDARDS
A.
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appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.
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2004). The plaintiff must make a prima facie showing of jurisdictional facts where
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the motion is based on written materials rather than an evidentiary hearing. Id.
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(quoting Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). Although the
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plaintiff cannot simply rest on the bare allegations of its complaint, uncontroverted
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allegations in the complaint must be taken as true. Id. (quoting Amba Mktg. Sys., Inc.
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v. Jobar Intl, Inc., 551 F.2d 784, 787 (9th Cir. 1977)). In ruling on a motion to
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dismiss under Rule 12(b)(2), a court may consider evidence presented in affidavits to
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assist it in its determination. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001)
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(per curiam).
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Stump v. Sparkman, 435 U.S. 349 (1978) (absolute immunity); Ryan v. Bilby, 764 F.2d
1325, 132728 (9th Cir. 1985) (same); Wood v. Moss, 134 S. Ct. 2056 (2014)
(qualified immunity).
contain[s] 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) (quoting Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Courts first task on a motion to
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presumption of truthfrom its factual allegations. Id. at 67879. Once the legal
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conclusions are set aside, the remaining factual allegations must raise a right to relief
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above the speculative level. Twombly, 550 U.S. at 555. If the complaint pleads facts
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that are merely consistent with a defendants liability, it stops short of the line
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between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678
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(quoting Twombly, 550 U.S. at 557). In other words, when there is an obvious
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alternative explanation for [the] defendants behavior, the plaintiff has not plausibly
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alleged a violation of the law. Eclectic Props. E., LLC v. Marcus & Millichap Co., 751
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F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 682).
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The purpose of this analysis is to ensure that the factual allegations that are
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taken as true . . . plausibly suggest an entitlement to relief, such that it is not unfair to
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require the opposing party to be subjected to the expense of discovery and continued
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litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
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ARGUMENT
This suit is deeply flawed at every level: This Court lacks jurisdiction over
A.
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This Court Lacks Personal Jurisdiction Over NUL, The NAACP, NAN,
Rev. Sharpton, And Ms. Baker
This action should be dismissed under Rule 12(b)(2) as to NUL, the NAACP,
NAN, Rev. Sharpton, and Ms. Baker because, even accepting Plaintiffs own
allegations as true, this Court cannot exercise personal jurisdiction over these out-ofstate Defendants.
Where, as here, there is no applicable federal statute governing personal
jurisdiction, the district court applies the law of the state in which the district court
sits. Schwarzenegger, 374 F.3d at 800; see also Daimler AG v. Bauman, 134 S. Ct.
746, 753 (2014) (Federal courts ordinarily follow state law in determining the bounds
of their jurisdiction over persons.). Because Californias long-arm jurisdictional
statute is coextensive with federal due process requirements, the jurisdictional analyses
under state law and federal due process are the same. Schwarzenegger, 374 F.3d at
80001. For a court to exercise personal jurisdiction over a nonresident defendant,
that defendant must have at least minimum contacts with the relevant forum such that
the exercise of jurisdiction does not offend traditional notions of fair play and
substantial justice. Id. at 801 (quoting Intl Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2853 (2011) (The Due Process Clause of the Fourteenth Amendment sets the
outer boundaries of a state tribunals authority to proceed against a defendant. . . . The
canonical opinion in this area remains International Shoe . . . .) (citation omitted).
[T]here are two forms that personal jurisdiction may take: general and
specific. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). General jurisdiction
permits a court to assert jurisdiction over a defendant based on a forum connection
Memo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker
Case 2:15-cv-01239-TJH-MAN
unrelated to the underlying suit (e.g., domicile). Walden v. Fiore, 134 S. Ct. 1115,
1121 n.6 (2014). Because the Supreme Court has declined to stretch general
contrast, specific jurisdiction depends on an affiliatio[n] between the forum and the
forum State and is therefore subject to the States regulation). Walden, 134 S. Ct. at
1121 n.6 (quoting Goodyear, 131 S. Ct. at 2851). For a State to exercise jurisdiction
consistent with due process, the defendants suit-related conduct must create a
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substantial connection with the forum State. Id. at 1121. [T]he relationship must
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arise out of contacts that the defendant himself creates with the forum State. Id. at
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1122 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
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Plaintiffs admit that neither Rev. Sharpton nor Ms. Baker is a resident of
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California, and that NUL, the NAACP, and NAN are not incorporated and do not have
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their principal place of business in California. Accordingly, there is no basis for the
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exercise of general jurisdiction. Plaintiffs have also failed to allege that these
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Defendants did anything that could give rise to specific jurisdiction in this case, as
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Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (per curiam). As summarized below
for each of these Defendants, the relevant allegations and evidence demonstrate a clear
National Urban League. Plaintiffs accurately allege that NUL is a New York
not-for-profit corporation, with its principal place of business in New York, New
York. Compl. 43; Morial Decl. 34. While Plaintiffs also allege that NUL has
a regional affiliate that has an office and is registered to do business and operates in
Los Angeles, California, Compl. 43, this affiliate (like the other NUL affiliates in
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established by NULs President and Chief Executive Officer, Marc Morial, these
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affiliates are completely independent and separate entities from NUL, are
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separately incorporated and are operated independently from NUL, and [e]ach
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affiliate operates pursuant to an Affiliate Agreement that provides that the affiliate is
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not an agent of NUL. Id. 6. Mr. Morials declaration also establishes that (1) NUL
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does not have any offices or employees located in California, (2) NUL does not own
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or lease any real estate in California, (3) NUL does not have any telephone listings
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and (5) NUL does not now have, and has not ever had, any bank accounts or other
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Aside from their incomplete and cursory allegation regarding NULs affiliate in
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Los Angeles, Plaintiffs Complaint is silent as to any other connection NUL has with
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California (let alone California connections related to Plaintiffs claims). The lack of
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nor any NUL employee has ever attended a meeting in California or participated in
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any telephone conference that originated in California with any Comcast or NBC
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Universal representatives regarding any subject matter, [n]o NUL employee has
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outside California, that may have occurred between Comcast and Entertainment
Studios Networks, Inc., and Mr. Morial has not participated in any meeting or
accurately allege that the NAACP is a New York not-for-profit corporation, with
business, as all of the NAACPs executive staff (including its President and CEO,
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Cornell William Brooks, and its Chief Operating Officer, Claudia A. Withers) are
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based in Baltimore. Brooks Decl. 45. The NAACP does have an office in Los
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Angeles, California, known as the Hollywood Bureau, but none of the NAACPs
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executive staff are based in that office. Compl. 42; Brooks Decl. 5.
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Aside from noting the existence of this regional office, Plaintiffs Complaint
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contains no allegations regarding any other connection between California and the
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NAACP, let alone specific California connections relevant to Plaintiffs claims. Mr.
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Brooks has also confirmed that, to the best of his knowledge, no employee of the
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California or outside California, that may have occurred between Comcast and
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York not-for-profit corporation, with its principal place of business in Harlem, New
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York. Compl. 45; Ingram Decl. 45. Plaintiffs also allege that NAN has a
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regional chapter that has an office, is registered to do business and operates in Los
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Angeles, California, Compl. 45, but this chapter and NANs Oakland, California
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chapter operate independently from NAN, and have their own independent executive
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committees. Ingram Decl. 6. NAN has only a single employee in California. Id.
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Moreover, [n]either NANs Founder and President (Reverend Al Sharpton) nor its
National Executive Director, Janaye Ingram, are based in any California office. Id.
Rather, they work at NANs principal place of business in New York, New York and
As with NUL and the NAACP, Plaintiffs Complaint is silent regarding any
other California connections or any link between their allegations and any NAN
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either inside California or outside California, that may have occurred between Comcast
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and Entertainment Studios Networks, Inc. and [n]o California Chapter officer,
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individual residing in New York, New York. Compl. 44. Plaintiffs do not allege
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Ms. Meredith Attwell Baker. Plaintiffs allege that Ms. Baker is an individual
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residing in Washington, D.C. Compl. 46. In fact, Ms. Baker actually resides in
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Virginia. Baker Decl. 2. Plaintiffs do not allege any connections between California
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This Court cannot exercise general jurisdiction over NUL, the NAACP, NAN,
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For an individual, the paradigm forum for the exercise of general jurisdiction is
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the individuals domicile[.] Goodyear, 131 S. Ct. at 2853. As noted above, Plaintiffs
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themselves allege that the two individual Defendants here, Rev. Sharpton and
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Ms. Baker, reside in New York and Washington, D.C., respectively. Compl. 44, 46.
(Ms. Baker actually resides in Virginia, Baker Decl. 2, although that difference does
not change the jurisdictional analysis.) Thus, given that neither Rev. Sharpton nor
Ms. Baker is domiciled in California, this Court cannot exercise general jurisdiction
business are paradig[m] . . . bases for general jurisdiction. Daimler, 134 S. Ct. at
760 (quoting Goodyear, 131 S. Ct. at 285354) (alteration and ellipsis in original).
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anywhere else. Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014)
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(quoting Daimler, 134 S. Ct. at 761 n.19). Yet Plaintiffs correctly allege that NUL, the
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NAACP, and NAN are all New York not-for-profit corporations, that the NAACPs
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national headquarters (which is its principal place of business) is in Maryland, and that
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the principal places of business of both NUL and NAN are in New York. Compl.
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4243, 45; Morial Decl. 34; Brooks Decl. 34; Ingram Decl. 45. Thus,
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NAACP, and NAN. Martinez, 764 F.3d at 1070 (quoting Daimler, 134 S. Ct. at 760).
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Plaintiffs allege that NUL, the NAACP, and NAN have regional affiliates,
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branches, and/or chapters that operate[ ] in California, but even accepting those
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allegations as true, they are not enough under Daimler to justify the exercise of
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refused to look beyond the exemplar bases Goodyear identified, and approve the
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substantial, continuous, and systematic course of business. Daimler, 134 S. Ct. 760
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everywhere it operates, reasoning that [a] corporation that operates in many places
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can scarcely be deemed at home in all of them. Id. at 762 n.20. These purported
California operations are simply irrelevant to the general jurisdiction inquiry after
Daimler.
cannot be attributed to either NUL or NAN. As explained above, the NUL affiliates in
California are entirely independent entities, and are not NULs agents. See Morial
Decl. 67. Similarly, the NAN chapter in Los Angeles operates independently and
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Thus, based on the facts alleged and the evidence in the record, there is no basis
for general jurisdiction over NUL, the NAACP, NAN, Rev. Sharpton, or Ms. Baker.
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3.
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This Court also cannot exercise specific jurisdiction over NUL, the NAACP,
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sufficient contacts with the forum state to be subject to specific personal jurisdiction:
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(1) The non-resident defendant must purposefully direct his activities or consummate
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some transaction with the forum or resident thereof; or perform some act by which he
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thereby invoking the benefits and protections of its laws; (2) the claim must be one
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which arises out of or relates to the defendants forum-related activities; and (3) the
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exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must
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With respect to claims sounding in tort (like those here), the Ninth Circuit has
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utilized a three-part effects test derived from Calder v. Jones, 465 U.S. 783 (1984).
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Picot, 780 F.3d at 121314. Under this test, a defendant purposefully directed his
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activities at the forum if he: (1) committed an intentional act, (2) expressly aimed at
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the forum state, (3) causing harm that the defendant knows is likely to be suffered in
the forum state. Id. (quoting Schwarzenegger, 374 F.3d at 803). The Ninth Circuit
has, however, recognized the limitations on the Calder effects test after the Supreme
Courts decision in Walden v. Fiore, 134 S. Ct. 1115 (2014). See Picot, 780 F.3d at
121314. After Walden, [i]n applying this test, [courts] must look[ ] to the
defendants contacts with the forum State itself, not the defendants contacts with
persons who reside there. Id. at 1214 (quoting Walden, 134 S. Ct. at 1122) (third
connection to the forum and is jurisdictionally relevant only insofar as it shows that
10
the defendant has formed a contact with the forum State. Id. (quoting Walden, 134
11
S. Ct. at 1125). In short, the personal jurisdiction analysis must focus on the
12
defendants contacts with the forum state, not the defendants contacts with a resident
13
14
Although Plaintiffs allege, in conclusory fashion, that NUL, the NAACP, NAN,
15
Rev. Sharpton, and Ms. Baker engaged in intentional conduct, none of this supposed
16
conduct is alleged to have any connection to California. Plaintiffs do not allege that
17
18
19
1215. For example, Plaintiffs do not allege that any of the negotiations regarding the
20
MOU took place in California, or that anything Ms. Baker allegedly did with respect to
21
22
Moreover, as noted above, the declarations from officers of NUL, the NAACP, and
23
NAN confirm the lack of any acts in California related to Plaintiffs claims. See
24
25
Indeed, the only link between California and these Defendants alleged conduct
26
is the fact that Plaintiffs reside in California, which is not sufficient to give rise to
27
specific jurisdiction. See Walden, 134 S. Ct. at 1125 (Calder made clear that mere
28
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injury to a forum resident is not a sufficient connection to the forum.). Nothing about
the fact that Plaintiffs were allegedly injured in California demonstrates that NUL, the
NAACP, NAN, Rev. Sharpton, or Ms. Baker formed a contact with the forum State,
as there was nothing to connect their alleged conduct to California. Id. Rather,
Plaintiffs alleged injury is entirely personal to [them] and would follow [them] where
[they] might choose to live or travel, and thus it is not tethered to California in any
meaningful way. Picot, 780 F.3d at 1215. In the absence of any allegations that the
alleged conduct of NUL, the NAACP, NAN, Rev. Sharpton, or Ms. Baker had any
10
Plaintiffs have failed to make a prima facie showing of specific personal jurisdiction.
11
Id.
12
13
NAACP, NAN, Rev. Sharpton, or Ms. Baker on the basis of Comcasts or Time
14
15
allegations. Doing so would violate the Supreme Courts clear command in Walden
16
17
basis for jurisdiction. 134 S. Ct. at 1123. Moreover, California does not recognize
18
19
Superior Court, 38 Cal. App. 4th 1750, 1760 (1995); see also, e.g., EcoDisc Tech. AG
20
v. DVD Format/Logo Licensing Corp., 711 F. Supp. 2d 1074, 1089 (C.D. Cal. 2010).
21
Accordingly, there is no basis for the exercise of specific jurisdiction over NUL,
22
23
B.
24
25
Ms. Baker, during the time period covered by the Complaint) in her capacity as an
26
adjudicative officer, the complaint should be dismissed under Federal Rule of Civil
27
28
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Sparkman, 435 U.S. 349 (1978); Ryan v. Bilby, 764 F.2d 1325, 132728 (9th Cir.
basis of qualified immunity where it pleads claims against a government officer but
does not allege a violation of any clearly established law. See Wood v. Moss, 134 S.
Ct. 2056 (2014). Here, the Complaint includes only a few scant references to
Ms. Baker, all of which concern her actions in an adjudicatory role as a Commissioner
The entirety of Plaintiffs allegations against Ms. Baker is that, during her time
10
11
12
Ms. Baker was one of four (out of five) commissioners to vote in favor of the
13
acquisition. When she left the FCC months later, Plaintiffs allege that Comcast
14
rewarded her with an executive position and a substantially higher salary. Compl.
15
63; see also Compl. 122 (alleging that Ms. Baker and other Defendants acted as
16
co-conspirators by accepting cash payments, jobs and other favors from Comcast in
17
exchange for their public support and approval of Comcasts racist policies and
18
19
Plaintiffs allegations fail for a multitude of reasons. First, Plaintiffs have not
20
alleged any facts supporting their suggestion that Ms. Baker engaged in any
21
impropriety. That Ms. Baker took a private-sector job following her government
22
service does not suggest impropriety in any form, and it certainly has nothing to do
23
24
25
26
27
The FCC reviewed that transaction because it involved the transfer of broadcast
licenses and authorizations under the Communications Act, and the Act requires the
Commission to ensure that any transfer of those licenses would serve the public
interest, convenience, and necessity. 47 U.S.C. 310(d).
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Second, Plaintiffs wrongly claim that Ms. Baker was one of three FCC Commissioners
fact four Commissioners voted in favor, which means that the transaction would have
been approved regardless of Ms. Bakers vote. See FCC, Memorandum Opinion and
11-4.pdf.3 In any event, that Ms. Baker voted to approve a corporate acquisition has
Moreover, Plaintiffs may not sue Ms. Baker for her review of the Comcast-
10
11
the Supreme Court has held that adjudication within a federal administrative agency
12
shares enough of the characteristics of the judicial process that those who participate in
13
such adjudication should also be immune from suits for damages. Butz v. Economou,
14
438 U.S. 478, 51213 (1978). Butz arose in the context of a formal adjudication by an
15
administrative law judge, whereas the FCC reviews transactions through an informal
16
17
process for the formulation of an order); id. 551(6) (defining order to include
18
dispositions of licensing matters).4 But judicial immunity is still warranted for the
19
20
As explained in Defendants concurrently filed request for judicial notice, the Court
may take judicial notice of this and the other government reports cited herein under
Federal Rule of Evidence 201(b)(1), including in deciding a Rule 12(b)(6) motion
to dismiss, because their accuracy cannot reasonably be questioned. See Lee v. City
of Los Angeles, 250 F.3d 668, 68889 (9th Cir. 2001).
Because the Communications Act does not require the FCC to conduct its review of
license applications on the record after opportunity for an agency hearing, the
proceeding is an informal adjudication rather than a formal adjudication. See 5
U.S.C. 554(a); 47 U.S.C. 309(a); ITT World Commcns, Inc. v. FCC, 595 F.2d
897, 901 (2d Cir. 1979) (holding that FCC licensing applications under Section 214
of the Communications Act are not subject to evidentiary hearing requirements).
21
22
23
24
25
26
27
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FCCs informal adjudication here because the conflicts that FCC Commissioners
resolve are every bit as fractious as those which come before a court. Butz, 438 U.S.
at 513. An acquisition review proceeding before the FCC touches the interests of
Under the reasoning of Butz, absolute immunity applies to the FCCs review and
10
is functionally comparable to that of the judge. Id. In particular, the FCCs review
11
process is structured to contain many of the same safeguards that protect the integrity
12
of a traditional juridical process. Id. at 51314. First, the proceedings were conducted
13
in the open, on a public record. Even though the FCC was not required to do so by the
14
15
significant transaction, the Commission followed its usual practice of publicly noticing
16
the application for license transfer and setting a schedule for public input. See FCC
17
18
General Electric Company, and NBC Universal, Inc., to Assign and Transfer Control
19
20
21
comment on the proposed acquisition. Second, the Commission has rules to protect
22
23
24
Under the Commissions rules for that type of proceeding, disclosure on the record is
25
required for any communication with the Commissioners or their staff, whether written
26
or oral, that is designed to affect the outcome of the proceeding. See 47 C.F.R.
27
1.1206; cf. Butz, 438 U.S. at 514 (noting that agency rules prohibited ex parte contact
28
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regarding a fact at issue in the hearing). Finally, after reviewing the relevant evidence,
the Commission produced a written decision that explained its reasoning. See FCC,
Co. and NBCUniversal, Inc., MB Docket No. 10-56 (Jan. 18, 2011), available at
http://transition.fcc.gov/FCC-11-4.pdf.
Plaintiffs here have not pled a shred of evidence to support their defamatory
allegation that Ms. Baker had improper contact with any party during her review of
Comcasts acquisition of NBCUniversal. And just as the judges of this Court would be
absolutely immune from a lawsuit alleging corruption in their decisions, Ms. Baker is
10
11
12
Commissioner, the case should still be dismissed on the basis of qualified immunity.
13
That doctrine protects government officials from liability for civil damages unless a
14
plaintiff pleads facts showing a clearly established violation of the law. Wood, 134
15
S. Ct. at 206667 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)). The
16
clearly established law must not be defined at a high level of generality. al-Kidd,
17
131 S. Ct. at 2084; see also Anderson v. Creighton, 483 U.S. 635, 63940 (1987)
18
(plaintiffs may not plead around qualified immunity simply by alleging a violation of
19
extremely abstract rights; rather, [t]he contours of the right must be sufficiently clear
20
that a reasonable official would understand that what he is doing violates that right).
21
And even where the law is clearly established that the government may not engage in
22
23
by merely alleging that intention. See Wood, 134 S. Ct. at 206669 (affirming
24
dismissal of a First Amendment complaint because it was not sufficient for the
25
26
27
Here, Plaintiffs plead no facts to show that Ms. Baker violated any law, much
less a clearly established violation. The Complaints sole allegation is that Ms. Baker,
28
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NBCUniversal. But that proceeding was about a corporate acquisition; it had nothing
Plaintiffs vague, scattered allegations against Ms. Baker has a connection to the
Plaintiffs nowhere, as no reasonable person could see in the MOU anything other than
not to disadvantage them. Plaintiffs do not plead any facts to show or even suggest
that Ms. Baker had any reason to believe the MOU was not what it plainly is: an
10
11
12
In short, Plaintiffs have pled no facts at all to support their conclusory allegation
13
that Ms. Baker intended, condoned, or even knew of any alleged discrimination in
14
15
NBCUniversal. Even if they could allege those facts, there is no clearly established
16
17
by exercising an adjudicatory role, even if the regulator somehow knew that the parties
18
19
allegation that Ms. Baker left her government position for employment in the private
20
21
Rather than pursue any genuine relief, Plaintiffs hope to use this Court to
22
impugn the integrity of a former public servant. They may not do so. All claims
23
24
C.
25
26
27
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shall have the same right in every State and Territory to make and enforce contracts
discrimination. Gen. Building Contractors Assn, Inc. v. Pennsylvania, 458 U.S. 375,
389 (1982); see also Gay v. Waiters & Dairy Lunchmens Union, Local No. 30, 694
F.2d 531, 536 (9th Cir. 1982). As a result, a section 1981 plaintiff cannot state a claim
by alleging that the defendant uses a policy that has a disparate racial impact. General
Building Contractors, 458 U.S. at 390. Instead, the plaintiff must plead factual
10
This case bears a striking similarity to Iqbal. In each case, the plaintiff pled that
11
the defendants acted with the deliberate intent to discriminate. Compare Compl. 14
12
13
on account of race.), with Iqbal, 556 U.S. at 669 ([T]he complaint posits that the
14
defendants singled out the plaintiff solely on account of his religious, race, and/or
15
national origin) (alteration omitted). And in each case, the complaint failed for the
16
same reason: With the conclusory assertions set aside, the few factual allegations
17
18
19
The plaintiff in Iqbal had been arrested following the September 11, 2001 terror
20
attacks and detained in federal custody. Id. at 666. He alleged that the former
21
Attorney General of the United States (John Ashcroft) and Director of the Federal
22
23
discriminating against him on the basis of race, religion, or national origin. See Bivens
24
v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The
25
Supreme Court held that the complaint failed to state a claim for relief. The Court
26
began by identifying the conclusory assertions in the complaint that were not entitled
27
to be presumed true. Iqbal, 556 U.S. at 680. Legal conclusions include [t]hreadbare
28
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statements. Id. at 678. In Iqbal, these included the plaintiffs allegation that the
defendants each knew of, condoned, and willfully and maliciously agreed to subject
account of his religion, race, and/or national origin and for no legitimate penological
With the conclusory assertions set aside, the Court next considered whether the
factual allegations in the complaint stated a plausible claim for relief. A claim has
facial plausibility when it pleads factual content that allows the court to draw the
10
reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678
11
(citing Twombly, 550 U.S. at 556). In Iqbal, the remaining factual allegations were
12
that the defendants had arrested and detained thousands of Arab Muslim men . . . as
13
part of [their] investigation of the events of September 11, and had approved a
14
15
were cleared by the FBI. Id. at 681 (ellipsis in original; internal quotation marks
16
omitted). But the Supreme Court explained that if a complaint pleads facts that are
17
merely consistent with a defendants liability, it stops short of the line between
18
possibility and plausibility of entitlement to relief. Id. at 678 (quoting Twombly, 550
19
U.S. at 557). In other words, as the Ninth Circuit has elaborated, when there is an
20
obvious alternative explanation for [the] defendants behavior, the plaintiff has not
21
plausibly alleged a violation of the law. Eclectic Props. E., LLC v. Marcus &
22
Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 682); see
23
also In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)
24
(Iqbal requires plaintiffs to allege facts tending to exclude the possibility that the
25
26
(citation omitted). In Iqbal, the facts alleged did not plausibly establish purposeful
27
28
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connections to the terror attacks, a policy that the Court found would naturally
produce a disparate, incidental impact on Arab Muslims. 556 U.S. at 682. The
Court noted that determining whether a complaint states a plausible claim for relief
is a context-specific task that requires the reviewing court to draw on its judicial
Plaintiffs here attempt the same strategy that doomed the plaintiff in Iqbal. The
Complaint merely recites the elements of a 1981 cause of action through conclusory
assertions that Comcast refused carriage on account of ESNs racial identity and gave
10
preferential treatment to similarly situated applicants for carriage from other races.
11
The Complaint then offers only a few factual allegations, none of which shows
12
13
explanation that is obvious from the Complaint itself: As a business matter, Comcast
14
did not think that ESNs channels had sufficient consumer interest or demand to
15
16
17
18
1.
19
At Iqbals first step, this Court identifies those portions of the Complaint that are
20
not entitled to be presumed true: mere recitations of the elements of the cause of
21
action, or conclusory assertions. 556 U.S. at 67879. Here, that category comprises
22
23
dismissal by simply asserting that Comcast declined to carry ESNs channels because
24
of a discriminatory intent. E.g., Compl. 14. That is precisely the sort of conclusory
25
assertion that the Supreme Court held was not sufficient in Iqbal. 556 U.S. at 68081.
26
27
Plaintiffs are also not entitled to a presumption of truth for their assertion that
any of their channels, including Justice Central, have been proven successful or in
28
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alleging that it is qualified. See Amobi v. Ariz. Bd. of Regents, No. 10-1561, 2011 WL
308466, at *4 (D. Ariz. Jan. 28, 2011) (dismissing a discrimination case in the
analogous Title VII context because the plaintiffs allegation that she was and is fully
qualified for promotion and tenure is conclusory and not entitled to be assumed true).
Similarly, Plaintiffs do nothing more than recite the elements of a 1981 cause
of action with their assertions that Comcast refuses to treat 100% African American-
10
media companies, Compl. 12, or that Comcast has entered into carriage agreements
11
with other, similarly situated white-owned channels, Compl. 88. The Complaint
12
provides no details regarding how Comcast refuses to treat 100% African American
13
owned companies the same as other similarly situated companies. Nor does the
14
Complaint provide any examples of these other similarly situated channels, or any
15
16
17
18
television channels are similarly situated, the Ninth Circuit has instructed that a court
19
should consider a number of factors, including whether the networks show similar
20
programming, whether they target broader or narrower audiences, and whether they
21
have a different look and feel. Herring Broad., Inc. v. FCC, 515 F. Appx 655, 656
22
57 (9th Cir. 2013). Other relevant factors involved in Comcasts carriage decisions
23
include the amount of the licensing fees (which is generally the most important
24
factor); the nature of the programming content involved; the intensity and size of the
25
fan base for that content; the level of service sought by the network; the networks
26
carriage on other [cable systems]; the extent of most favored nation protection
27
provided; the term of the contract sought; and a variety of other operational issues.
28
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Comcast Cable Commcns, LLC v. FCC, 717 F.3d 982, 985 (D.C. Cir. 2013)
(alteration and footnotes omitted). This Court can rely on its judicial experience and
common sense, Iqbal, 556 U.S. at 679, to know that, for example, the extremely
popular SEC Networkwhose content was recently added to some of Comcasts cable
systems and includes exclusive access to high-demand college football and basketball
games from prominent teamsis not similarly situated (in consumer demand, content,
target audience, or quality) to ESNs request for carriage of its Justice Central
channel. Yet Plaintiffs plead no facts at all about what made these supposedly
10
Nor can Plaintiffs argue that, at the pleading stage, they need not supply details
11
for their supposed comparators. Courts routinely dismiss discrimination cases where
12
the plaintiff alleges nothing more than that some unidentified person of another race or
13
gender was treated better. For example, in Ghosh v. Uniti Bank, 566 F. Appx 596,
14
597 (9th Cir. 2014), the Ninth Circuit affirmed the dismissal of a claim under 42
15
16
plaintiff failed to allege any facts that support its contention that [the defendant]
17
18
plaintiffs] racial identity. (Emphasis added.) Similarly, the Sixth Circuit affirmed
19
dismissal of a 1981 complaint in Han v. University of Dayton, 541 F. Appx 622, 627
20
(6th Cir. 2013), cert. denied 131 S. Ct. 2699 (2014), where the plaintiffs complaint
21
22
and was treated less-favorably than other similarly-situated female employees, but he
23
ha[d] offered no specifics regarding who those employees were or how they were
24
treated differently. (Emphasis added.) District courts in this Circuit have also
25
dismissed race discrimination claims brought under Title VII, an analogue to 1981,
26
where the plaintiff alleged that persons of another class received more favorable
27
treatment, but failed to allege any facts about what made those persons similarly
28
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situated. See Johnson v. Sun Cmty. Fed. Credit Union, No. 11-2112, 2012 WL
1340434, at *4 (S.D. Cal. Apr. 18, 2012) (dismissing race discrimination claims under
Title VII because the plaintiff offer[ed] no evidence that non-black employees
Anasazi Found., No. 09-2379, 2010 WL 3724751, at *12 (D. Ariz. Sept. 17, 2010)
(dismissing gender discrimination claims under Title VII where the complaint alleged
that similarly situated male applicants were treated more favorably, but provided no
factual details).
10
aspersions on the Defendants, but which have nothing at all to do with race
11
12
Comcast violated the antitrust laws in connection with its then pending merger with
13
14
15
16
2.
17
Once the Court has set aside the parts of the Complaint that are either
18
19
20
21
22
23
24
25
26
27
Comcast also entered other MOUs intending to benefit Hispanic Americans and
Asian Americans. The Complaint refers to MOUs in the plural, but the
allegations in the Complaint relate solely to the MOU entered for the benefit of
African Americans, and to which NUL, the NAACP, and NAN were signatories.
28
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about the African American MOU move back and forth between two different
theories: (1) that Comcast has used the MOUs to create a segregated and unequal path
for 100% African American-owned channels to contract, and has set up dual paths
for negotiating for carriage (one for white-owned media and one for African
American-owned media), Compl. 84, 78; and (2) that the MOUs are a
smokescreen for Comcasts racially discriminatory business practices, that exist [t]o
make Comcast look like a good corporate citizen while it steadfastly refused to
These implausible allegations are directly contradicted by the MOU itself, which
10
11
Complaint. See, e.g., Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th
12
Cir. 2012); Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.
13
2002) (Under the incorporation by reference rule of this Circuit, a court may look
14
beyond the pleadings without converting the Rule 12(b)(6) motion into one for
15
summary judgment.).6 On its face, the MOU between Comcast and NUL, the
16
NAACP, and NAN is clearly an agreement designed to benefit African Americans, not
17
18
19
(The MOUs procurement commitments also support the ability of African Americans
20
to supply all types of goods and services to Comcast.) Nothing in the MOU affects in
21
any way the ability of African American owned businesses to license their
22
23
process.
24
25
26
27
As the MOU makes clear, its purpose was to enhance the policies and programs
by which African Americans may realize greater participation in the five focus areas
6
Defendants are concurrently filing a request for judicial notice of the relevant
MOU, which is attached as Exhibit A to the Fuchs Declaration.
28
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any community. Fuchs Decl., Ex. A at 23. To achieve this objective, the MOU sets
forth various actions and goals to enhance the participation of African Americans in
each stated area. For example, Comcast agreed to create a National African
10
Id. at 3. With respect to workforce diversity, Comcast agreed to actively take steps to
11
12
candidates for all hires at the vice president level and above. Id. at 56. On
13
14
15
16
17
18
19
independently-owned and-operated programming services over the next eight (8) years
20
following closing of the transaction acquiring NBCUniversal, and through the MOU
21
agreed that [f]our (4) of the new networks will be linear video programming services
22
23
9. In other words, Comcast specifically set aside bandwidth to allow for the launch of
24
25
26
27
competitive terms to the carriage of the services by other distributors. Cf. Compl.
28
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86 (alleging that channels launched through the MOU receive less favorable
contracting terms). Significantly, nothing about this commitment limited the number
of African American owned networks Comcast could add outside the MOU process, or
required African American owned networks to seek carriage exclusively as one of the
four networks specified in the MOU. Rather, Comcasts commitments merely set a
the MOU guaranteed those carriage slots regardless of any bandwidth or other business
constraints that Comcast would normally consider in rejecting proposals to add new
10
channels to its lineup. Plaintiffs also never grapple with the utter implausibility that
11
Comcast and leading civil rights organizations would put down in writing a plan to
12
13
and submit it to the FCC. The MOU itself makes clear that Defendants did no such
14
thing.
15
16
created a segregated and unequal path for African American owned networks.
17
Plaintiffs allegations about the MOU are belied by the text of the document itself, and
18
thus need not be accepted as true. See Gonzalez v. Planned Parenthood of L.A., 759
19
F.3d 1112, 1115 (9th Cir. 2014) ([I]f those documents [incorporated by reference
20
into the complaint] conflict with allegations in the complaint, we need not accept those
21
allegations as true. (quoting Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190,
22
1196 (10th Cir. 2013)) (alteration in original). Furthermore, ESNs own experience
23
confirms that the MOU process operates for the benefit of African American owned
24
content owners, rather than to their detriment. Even after Comcast declined to license
25
ESNs channels, the Complaint acknowledges that Comcast suggested the MOU
26
27
28
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That the MOU process offered an additional opportunity to ESN would seem to
foreclose any argument that the MOU is a mechanism for discrimination: Plaintiffs
did have an opportunity for carriage with Comcast under the MOU; they simply were
not selected for carriage as against other African American owned programming
services. The Complaint acknowledges that, through the MOU process, Comcast has
Compl. 76. Yet Plaintiffs respond that the MOU is really a smokescreen for
discrimination against the unique class that happens to cover ESN100% African
American owned companies. Plaintiffs write off the African American channels that
10
Comcast launched as part of the MOU process as not having a genuinely African
11
American identity and possessing a token ownership interest for African Americans.
12
Compl. 2122, 7678. But these offensive characterizations cannot save Plaintiffs
13
Complaint.
14
When Plaintiffs distorted characterizations of the MOU are set aside, the actual
15
16
17
18
African Americansan agreement that the nations leading civil rights organizations
19
20
Americans cannot be squared with reality. Instead, the MOU and the Complaint both
21
confirm that ESN has merely concocted a theory of race discrimination when it could
22
23
24
25
26
27
28
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3.
Plaintiffs Remaining Allegations Do Not Exclude An Obvious, NonDiscriminatory Reason For Comcasts Carriage Decisions
Beyond the conclusory assertions and the distorted description of the MOU,
virtually nothing remains in Plaintiffs Complaint. And none of the allegations that are
in the Complaint plausibly shows race discrimination in the carriage of video
programming. Instead, all of those facts are explained by an obvious, nonMemo of Points and Authorities ISO Motion to
Dismiss Plaintiffs Complaint by Defendants Comcast,
NAACP, NUL, Sharpton, NAN, and Baker
31
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discriminatory alternative, see Iqbal, 556 U.S. at 682, provided by the Complaint itself:
Comcast believed that the expenses it would incur from carrying ESNs programming
were not justified by the limited consumer interest and demand for ESNs program
content. Compl. 8889 (describing how Comcast communicated to ESN that it was
concerned about bandwidth and customer demand); see also In re Herring Broad.,
Inc., 26 F.C.C. Rcd. 8971, 8976 (2011) (noting that cable operators base their carriage
evaluation of the programming; (2) whether the channel has an established brand with
a record of appeal to subscribers; (3) whether the channel has obtained carriage on
10
competing cable systems; (4) the experience of the channels owners; (5) whether
11
bandwidth could be better used for other purposes; (6) whether the channel has outside
12
financing; and (7) whether the terms offered by the channel are favorable) (internal
13
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1108, of the alternative explanation that Comcast simply exercised its business and
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editorial discretion in declining to contract for ESNs content. That discretion has
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right. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994) (There can be
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in and transmit speech, and they are entitled to the protection of the speech and press
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provisions of the First Amendment.); see also Comcast Cable, 717 F.3d at 993
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over which video programming networks to carry and at what level of carriage.).
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Plaintiffs highly improbable theory that civil rights groups conspired with Comcast to
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discriminate based on race. In fact, Plaintiffs own allegations undermine their charge
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business with African Americans, yet they acknowledge that Comcast has launched
100% African American owned is not genuinely African American, in Plaintiffs self-
serving view. Compl. 76. Moreover, the Complaint acknowledges that ESN itself
has had multiple meetings for channel carriage with Comcast, during which Comcast
explained what might make ESNs content more attractive for carriage. Compl. 52
53. Plaintiffs never explain why Comcast would go to that trouble if it knew all along
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violation of 1981, it must have acquired a racial identity, either as a matter of law or
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by imputation. Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053,
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1059 (9th Cir. 2004).7 In this case, Plaintiff ESN does not allege that it was
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cannot make that allegation, because the Complaint acknowledges that Comcast has
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2122, 7677 (noting that Comcast has launched two channels with an African
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uniquely 100% African American owned company. Compl. 2. ESN thus asks the
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Thinket held that pleading a racial identity is necessary in order to establish that the
plaintiff falls within 1981s zone of interests for purposes of prudential
standing. 368 F.3d at 1059. The Supreme Court has recently clarified that
whether a plaintiff is within the statutes zone of interests is not a matter of
standing, but rather of whether the cause of action encompasses a particular
plaintiffs claim. Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S.
Ct. 1377, 1387 (2014). That difference is immaterial here.
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Americans, and perhaps even 95% owned by African Americans, Comcast refuses to
sense. Iqbal, 556 U.S. at 679. And even then the allegation is rebutted by the
Complaint itself, which acknowledges that Comcast pays $3 million per year in
licensing fees for channels owned 100% by African Americans. See Compl. 55.
Plaintiffs allege that Comcast has agreed to broadcast only a single channel
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owned 100% by African Americans since the MOU was signed in 2010. Compl. 7,
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29. But during the two years prior to the Complaintthe period covered by the
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applicable two-year statute of limitations, see Johnson v. Lucent Tech. Inc., 653 F.3d
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1000, 100607 (9th Cir. 2011)8Plaintiffs do not even allege that any other 100%
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African American owned companies have pursued carriage with Comcast. Nor do
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Plaintiffs plead any details about consumer demand for those hypothetical channels,
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their effect on bandwidth constraints, or the terms that the owners of those channels
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were willing to accept. In fact, ESN alleges that it is the only 100% African
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the United States, Compl. 2, which necessarily means that no other companies
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similarly situated to Plaintiff have pursued contracts for multi-channel carriage with
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Comcast. Cf. Ardalan v. McHugh, No. 13-1138, 2014 WL 3846062, at *89 (N.D.
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Cal. Aug. 4, 2014) (dismissing Title VII claims because the plaintiff failed to plead
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that other employees who received more favorable treatment were similarly situated in
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all material respects). Without so much as an allegation that any other qualified,
100% African American owned businesses have pursued contracts with Comcast, the
absence of those contracts does not plausibly establish intentional race discrimination.
Plaintiffs allege that ESN has complied with each of Comcasts demands for
channel carriage. Compl. 53. Plaintiffs, however, provide no facts to support that
contention. Plaintiffs say only that ESNs Justice Central channel has shown
double- to triple-digit ratings growth. Compl. 54. But Comcast cannot and does
not carry every channel with growing demand, and Plaintiffs do not allege anything to
the contrary. (Of course, absolute demand is more important than mere growth from
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channel.) Plaintiffs do not begin to demonstrate that ESNs channels offered a benefit
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to Comcast along the full range of factors that Comcast considers when contemplating
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carriage. That ESN considers itself to have successful channels is not relevant; what
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matters is Comcasts perception of those channels at the time that it declined to license
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them. See Han, 541 F. Appx at 627 (holding that the plaintiff is not entitled to a
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his job and is a racial minority); Comcast, 717 F.3d at 98586 (establishing
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discrimination requires proof that Comcast perceived a net benefit from licensing, and
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yet refused carriage for a discriminatory reason). Comcasts decision not to pay to
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disagreement with ESN about the demand for ESNs content, as well as the business
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case for carriage in light of the burden on Comcasts limited bandwidth, than by
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intentional discrimination.
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Plaintiffs allege that Comcast has historically offered shorter-term deals and
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little, if any, in licensing fees to the channels [that] it launches through the
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MOU/Minority Process. Compl. 86. But Plaintiffs plead no details that would
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support this allegationno facts at all about what terms were offered, and whether
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those terms were justified by other considerations, such as the fact that the channel was
brand new. Nor do Plaintiffs attempt to show that these channels were similarly
situated to the channels for which Comcast purportedly offered more favorable terms.
Plaintiffs allege that [i]n November 2014, a Comcast executive told [ESN] that
although its channels were good enough for carriage on Comcasts platform, [ESN]
would have to wait to be part of the next round of [MOU] consideration, i.e., the
this factual allegation as true at this stage, it does not show any intent to discriminate.
The executive allegedly conveyed that, even though ESNs channels were potentially
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high enough in quality for carriage, Comcast could not presently license those channels
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for whatever reasonjust as Comcast routinely declines carriage requests from other
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qualified channels for business reasons. But, the executive also said, this was not the
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end of the line for ESNas it would be with virtually any other carriage applicant
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because ESN had an additional opportunity to pursue carriage through the MOU
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process. No reasonable person could interpret this statement to mean that Comcast
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would treat ESNs request for carriage less favorably on account of race.
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Finally, Plaintiffs allege that [o]n one of the many occasions on which [ESN]
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reached out to Comcast, a Comcast executive stated that Comcast was not going to
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create any more Bob Johnsons. Compl. 1517, 95. This stray allegation cannot
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save Plaintiffs Complaint from dismissal. Plaintiffs plead nothing whatsoever about
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who made this remark, or in what context. Those details matter because the Ninth
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Circuit has held that only evidence of conduct or statements by persons involved in
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the decision-making process can permit an inference that race was a motivating factor
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in the defendants decision. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,
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The Ninth Circuit has also held that one or two remarks by a single employee,
even if the remark could potentially show animus, does not plausibly show that the
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Appx , No. 13-17384, 2015 WL 899268, at *2 (9th Cir. Mar. 4, 2015) (affirming
dismissal of a 1981 claim). Here, of course, the alleged remark does not refer to race
and does not clearly show animus; it is at most ambiguous. Based on the allegations in
the Complaint, the speaker likely meant to convey that ESN should not expect to sell
its content for anything close to $3 billion. See Compl. 16. What is more, there is
the civil rights groups with whom Comcast allegedly conspired. Plaintiffs allegation
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and abetted by respected civil rights organizations, into a plausible 1981 claim.
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D.
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with each other to discriminate on the basis of race against 100% African Americanowned media in connection with contracting, in violation of 42 U.S.C. 1985(3).
Compl. 122. As with their 1981 claim, Plaintiffs Complaint fails to state any
plausible conspiracy claim.
Section 1985(3) makes it illegal for two or more persons in any State or
Territory [to] conspire . . . for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws, and then for any person to do, or cause to be done,
any act in furtherance of the object of such conspiracy, whereby another is injured in
his person or property, or deprived of having and exercising any right or privilege of a
citizen of the United States. Section 1985(3) creates no rights; it merely provides a
civil cause of action when some otherwise defined federal rightto equal protection of
the laws or equal privileges and immunities under the lawsis breached by a
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conspiracy[.] Great Am. Fed. Sav. & Loan Assn v. Novotny, 442 U.S. 366, 376
(1979).
As explained above, Plaintiffs have failed to plead any violation of 1981, and
See Novotny, 442 U.S. at 372 (Section 1985(3) provides no substantive rights itself; it
Capistrano Unified Sch. Dist., 37 F.3d 517, 52324 (9th Cir. 1994) (per curiam)
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speech and due process); Greenlaw v. Adams, No. C08-04782 RMW, 2010 WL
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725346, at *12 (N.D. Cal. Feb. 26, 2010), affd 475 F. Appx 179 (9th Cir. 2012); Hai
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T. Le v. Hilton Hotel, No. C 09-4871 PJH, 2010 WL 144809, at *15 (N.D. Cal. Jan. 11,
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2010). The Court can and should dismiss the 1985(3) claims on this ground alone.
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conspired to discriminate on the basis of race are woefully inadequate, as they are
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unsupported by any of the necessary factual enhancement to cross the line between
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possibility and plausibility. Eclectic Properties, 751 F.3d at 995 (quoting Twombly,
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550 U.S. at 557). Plaintiffs merely assert that a conspiracy to discriminate existed, but
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their Complaint is bereft of any facts supporting the existence of the alleged conspiracy
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between the Defendants, such as facts concerning the formation of the alleged
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barely provide any factual allegations whatsoever regarding NUL, the NAACP, NAN,
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None of Defendants alleged conduct suggests in any respect that they joined
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Americans. Plaintiffs assert that the fact that Ms. Baker voted in favor of the
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Comcast / NBC-Universal merger, and that NUL, the NAACP, and Rev. Sharpton (on
behalf of NAN) signed the MOU, constitute acts in furtherance of the conspiracy,
but that contention is far from plausible and does nothing to exclude an obvious
alternative explanation for these actionsnamely, that Ms. Baker voted in favor of
the Comcast/NBCUniversal transaction based on its merits, and that the MOU was a
legitimate effort to benefit African Americans, not discriminate against them. See
Eclectic Props., 751 F.3d at 996. Plaintiffs also ignore that on the face of the MOU,
neither NUL, the NAACP, nor NAN are given any discretion over the MOU selection
process. See Fuchs Decl., Ex. A at 2 (While Comcast is committed to these general
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discretion to determine the best method to implement the initiatives in accordance with
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the parameters set forth within the MOU.); id. at 9 ([S]election of such newly
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against Defendants NUL, the NAACP, NAN, Rev. Sharpton, and Ms. Baker for lack of
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personal jurisdiction. In the alternative, the Court should dismiss with prejudice all
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claims against Ms. Baker on the ground of immunity. As to all Defendants, moreover,
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the Court should dismiss all claims with prejudice for failure to state a claim for relief.
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