United States District Court, N.D. Illinois
January 2, 2004.
DIRECTV Inc. Plaintiff;
WILLIAM CASTILLO, KIM CASHMORE, ROBERT CELAYA, TIM CHADWICK, MICHAEL CHAMBERLIN, MARTY CHAPUIS, LEE CHARLES and ALBERTO CHINA, Defendants
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff DIRECTV, Inc. ("DIRECTV") commenced this action against
various Defendants, including Robert Celaya, alleging violations of the
Cable Communications Policy Act, 47 U.S.C. § 605, the Electronic
Communications Privacy Act, 18 U.S.C. § 2511-12 and civil conversion.
Defendant Celaya has moved to dismiss counts III and V of the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, Defendant's motion is granted.
I. Legal Standards
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the
complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). Dismissal is proper only if "it is clear that no relief could
be granted under any set of facts that could be proved consistent with
allegations." Hishon v. King & Spaulding, 467 U.S. 69,
73, 104 S.Ct. 2229, 2232, 81 L.Ed.3d 59 (1984), In assessing the
motion, the Court must accept all factual allegations in the complaint
as true, and draw all reasonable inferences in the plaintiffs favor.
Jang v. AM. Miller & Assocs., 122 F.3d 480, 483 (7th Cir.
II. Count III Section 2512 of the Electronic Communications
In count III, Plaintiff alleges that Defendants "possessed,
manufactured, and/or assembled an electronic, mechanical or other device
knowing, or having reason to know" that such device was designed
primarily to make it useful for intercepting satellite television
broadcasts, in violation of Section 2512 of the Electronic Communications
Privacy Act (the "Act"). Defendant argues that the Court should dismiss
this count because Section 2512 does not provide for a private cause of
action. Plaintiff counters that Section 2520 provides for a civil cause
of action against parties that have violated Section 2512.
Section 2520(a) expressly provides, in relevant part, "any person whose
wire, oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter" may maintain a private
cause of action. 18 U.S.C. § 2520(a). Under a plain reading of the
statue, the phrase "in violation of this chapter" only qualifies any
interception, disclosure or intentional use of the electronic
communication. It does not provide for a private cause of action for any
violation of the chapter. Because Section 2512 only criminalizes the
manufacture, assembly, possession, or sale of any device designed to
surreptitiously intercept electronic communications, Section 2520(a) does
not provide Plaintiff with a civil cause of action. Section 2512 does not
refer to or incorporate the interception, disclosure, or use prohibited
by the Act. Section 2520(a) therefore does not provide for a private
cause of action for a violation of Section
2512. See Flowers v. TandyCorp., 773 F.2d 585 (4th Cir. 1985)
(no private cause of action); DIRECTV, Inc. v. Jerolleman,
No. 03-1465, 2003 WL 22697177 (E.D. La. Nov. 12, 2003) (same);
DIRECTV, Inc. v. Westendorf, No. 03 C 50210,: 2003 WL 22139786,
*1 (N.D. Ill. Sept. 16, 2003) (same); DIRECTV, Inc. v. Cardona,
275 F. Supp.2d 1357, 1367 (M.D. Fla. 2003). But see DIRECTV, Inc.
v. Gatsiolis, No. 03 C 3534, 2003 WL22111097 (N.D. Ill. Sept. 10,
2003) (holding that plaintiff stated a cause of action under § 2520
for a violation of § 2512); DIRECTV, Inc. v. EQ Stuff, Inc.,
207 F. Supp.2d 1077, 1084 (C.D. Cal. 2002) (same); Oceanic Cablevision,
Inc. v. M.D. Electronics, 771 F. Supp. 1019, 1027-29 (D. Neb. 1991)
(same). Accordingly, count III is dismissed.
III. Count V Conversion
Defendant seeks to dismiss count V which purports to state a claim for
common law conversion. "A conversion is any unauthorized act that
deprives a person of his or her or its property permanently or for an
indefinite time." Turner Investors v. Pirkl,
338 Ill. App.3d 676, 681, 789 N.E.2d 323, 327, 273 Ill Dec. 423, 427
(Ill.App. Ct. 2003) (citations omitted). In order to state a claim for
conversion in Illinois, Plaintiff must allege that (1) it has a right to the
property at issue; (2) it has an absolute and unconditional right to the
immediate possession of that property; (3) it made a demand on the defendant
for possession of the property; and (4) the defendant wrongfully and without
authorization assumed control, dominion, or ownership over the property.
Cirrincione v. Johnson, 184 Ill.2d 109, 114, 703 N.E.2d 67, 70,
234 Ill. Dec. 455, 458 (Ill. 1998).
The property at issue in count V is Defendant's interception of
"digitized video and audio signals." Defendant argues that because this
property is intangible, it cannot serve as the basis of
a conversion claim in Illinois. In support of his argument,
Defendant cites In re Thebus, 108 Ill.2d 255, 91 Ill. Dec. 623,
483 N.E.2d 1258, 1260 (Ill. 1985). In In re Thebus, the Illinois
Supreme Court noted that "[i]t is ordinarily held, however, that an
action for conversion lies only for personal property which is tangible,
or at least represented by or connected with something tangible."
Thebus, 108 Ill.2d at 260, 483 N.E.2d at 1260, 91 Ill. Dec. at
625 (quoting 18 Am. Jur.2d Conversion sec. 9, at 164 (1965)). In 1998,
the Illinois Appellate Court reiterated that only tangible property is
subject to a conversion action: "[o]ur supreme court has stated that an
action for conversion lies only for personal property that is tangible or
at least represented by or connected with something tangible." Bilut
v. Northwestern University, 296 Ill. App.3d 42, 230 Ill. Dec. 161,
692 N.E.2d 1327, 1334 (Ill.App. Ct. 1998) (citing In re Thebus,
108 Ill.2d 255, 91 Ill. Dec. 623, 483 N.E.2d 1258 (1985)). That same
year, however, an Illinois Appellate Court held exactly the opposite:
"parties may recover for conversion of intangible assets." Stathis v.
Geldermann, Inc., 295 Ill. App.3d 844, 856, 229 Ill. Dec. 809, 818
692 N.E.2d 798, 807 (Ill.App. Ct. 1998) (citing Conant v.
Karris, 165 Ill. App.3d 783, 792, 117 Ill. Dec. 406, 520 N.E.2d 757
Although the law in Illinois is not clear on whether intangible rights
can serve as the basis for a conversion claim, the Court agrees with the
recent analysis conducted by Judge Coar in DIRECTV, Inc. v.
Patel, No. 03 C 3442, 2003 WL 22682443 (N.D. Ill. Nov. 12, 2003). In
Patel, Judge Coar held: "In every Illinois conversion case
involving intangible property, the Plaintiff has been deprived of the
ability to benefit from the object of the alleged conversion."
Id. at *2. Here, Defendant's purported "conversion" did not
deprive DIRECTV of its continued use of its encrypted satellite
television signal. "The Illinois courts have not broadened the common law
tort of conversion so far as to permit the Plaintiff to recover on
this theory." Id. Accordingly, Defendant's motion to dismiss
count V is granted.
Defendant Robert Celaya's motion to dismiss counts III and V is
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