The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Dennis Wysong, filed a motion to dismiss the complaint of
plaintiff, DirecTV, Inc., asserting the following pursuant to
Fed.R.Civ.P. 12(b)(1): (1) Counts III and IV, which allege violations of
18 U.S.C. § 2511 and § 2512, respectively, are barred by the
two-year statute of limitations; and (2) Counts I and II are time-barred
because the appropriate statute of limitations is two years and the
complaint was filed beyond that time period; and the following pursuant
to Fed.R.Civ.P. 12(b)(6): (1) Counts I and IV fail to state a cause of
action; (2) section 2512, which is the basis for Count IV, does not
provide a private right of action; and (3) defendant was improperly
joined in this action. For the following reasons, the court denies the
motion to dismiss in part and grants it in part.
The court dismisses Count IV as it has earlier ruled that section 2512
does not create a private right of action. See DirecTV, Inc. v.
Westendorf 03 C 50210, Order dated 9/15/03.
The court denies the motion to dismiss based on improper joinder as the
magistrate judge has previously severed defendant and ordered plaintiff
to file a separate case naming Wysong as the defendant. See Order dated
As for the statute of limitations, the parties disagree as to whether a
two-year or three-year statute of limitations applies to Count I and II.
The court need not sort out this dispute, however, as it finds based on
the allegations that the complaint was filed within two years of the
cause of action accruing.
Accrual is the date on which the statute of limitations begins to run
and not the date on which the wrong that injures the plaintiff occurs,
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.
1990). The discovery rule, which is read into statutes of limitations in
federal question cases, postpones the beginning of the limitations period
from the date of the injury to the date the plaintiff discovers he has
been Injured. Cada, 920 F.2d at 450.
Here, while plaintiff alleges that it first became aware of defendant's
identity and involvement in pirating satellite programming "after May and
December of 2001," it states in its response to the motion to dismiss
that it did not discover the alleged illegal conduct until May 25, 2001.
A plaintiff may effectively "amend" his complaint in such a manner to
specify the date of his discovery. Clark v. City of Braidwood,
318 F.3d 764, 767-78 (7th Cir. 2003). Because plaintiff is not required
to negate the statute of limitations defense in its complaint, the only
question is whether there is any set of facts that if proven would defeat
the statute of limitations defense. See Clark, 318 F.3d at
767. Based on plaintiff's allegations, it has filed its complaint within
two years of its alleged discovery of being injured. Therefore, the
motion to dismiss on that basis is denied.
In so ruling, the court realizes that plaintiff may be able to avail
itself of the doctrine of equitable tolling, which differs from the
discovery rule in (hat under equitable tolling the plaintiff is assumed
to know he is injured so that the statute of limitations has begun to run
but he cannot obtain the information necessary to decide whether the
injury is due to wrongdoing and, if so, wrongdoing by the defendant. See
Cada, 920 F.2d at 451. That is an issue that cannot presently
be resolved in a motion to dismiss.
The last issue is whether plaintiff has stated a cause of action under
47 U.S.C. § 605(e)(4) in Count I of its complaint. Defendant
contends, without citation of authority, that to prevail under section
605(e)(4) a plaintiff must establish that the "primary usefulness" of the
programmers allegedly received by defendant are for the unauthorized
decryption of plaintiff's satellite signal. In this regard, defendant
points to other uses for such programmers, all matters of which are
outside the complaint.
Defendant's argument fails for three reasons. First, section 605(e)(4)
describes devices or equipment that is "primarily of assistance in the
unauthorized decryption" of satellite signals. This section does not use
the term "primarily useful" and there is no apparent reason to treat the
terms synonymously. Second, even if "primarily useful" is considered
synonymous with "primarily of assistance," the allegations in the
complaint state that the access card programmers are an essential piece
of equipment needed to reprogram an access card; thereby allowing for
unauthorized access to plaintiff's satellite signal. This is sufficient
to state a claim under section 605(e)(4), Finally, while there may be
other legitimate uses for the programmers, those are matters not
properly before the court in a Rule 12(b)(6) motion. Thus, defendant's
motion to dismiss Count I is denied.
For the foregoing reasons, the court grants defendant's motion to
dismiss as to Count IV and denies the motion in all other respects.
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