United States District Court, N.D. Illinois
March 25, 2004.
DIRECTV, INC., Plaintiff,
ROBERT DYRHAUG, Defendant
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Robert Dyrhaug ("Dyrhaug") has filed a motion to dismiss Counts 3 and
5 of the Complaint brought against him by DirecTV, Inc. ("DirecTV"), and
DirecTV has responded with a memorandum and a host of cases in support of
its position. Because this Court finds both aspects of Dyrhaug's motion
to be unpersuasive, it is denied in its entirety.
First, though, DirecTV's Mem. 1 n.1 correctly identifies the opening
portion of the Dyrhaug motion (a seven-paragraph Preliminary Statement
occupying its first two pages) as totally improper. Any Fed.R. Civ. p.
("Rule") 12(b)(6) motion must of course accept the allegations of the
complaint that it seeks to attack as true, and Dyrhaug's scurrilous
charges against DirecTV in that Preliminary Statement simply have no
place as an adjunct to his present motion. Dyrhaug's counsel has to know
better. Accordingly Dyrhaug's Preliminary Statement is stricken as
"immaterial, impertinent, [and] scandalous matter,"*fn1 and this
Court orders Dyrhaug's counsel to show cause why he should not be mulcted
with a fine payable to this District Court because of such unprofessional
To turn to the merits (or more accurately the lack of merit) of the
first part of Dyrhaug's motion to dismiss, his counsel attacks Count 3 on
the premise that Dyrhaug's claimed violation of 18 U.S.C. § 2512(1) (b)
*fn2 cannot give rise to a civil action such as this one. To be sure,
Section 2512 is part of the criminal code to be more precise, it is
lodged in the code's Chapter 119, which is captioned "Wire and Electronic
Communications Interception and Interception of All Communications" and
comprises Sections 2510 through 2522. But just as Congress has done with
RICO (see Section 1964(c)), it has chosen to include an express provision
for private civil actions in Section 2520 (captioned "Recovery of Civil
Damages Authorized") here are Section 2520(a) and (b):
(a) In general. Except as provided in section
2511(2)(a) (ii)', any person whose wire, oral, or
electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter may in
a civil action recover from the person or entity,
than the United States, which engaged in that
violation such relief as may be appropriate.
(b) Relief. In an action under this section,
appropriate relief includes
(1) such preliminary and other equitable or
declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive
damages in appropriate cases; and
(3) a reasonable attorney's fee and other
litigation costs reasonably incurred.
Because both Section 2520 and Section 2512 are part of Chapter 119 of
Title 18, the plain language of Section 2520(a) directly refutes
Dyrhaug's contention. Although Dyrhaug's counsel cites Flowers v. Tandy
Corp., 773 F.2d 585
, 588-89 (4th Cir. 1985) and the adherence to the
Flowers decision in DirecTV, Inc. v. Amato, Civil No. 3:03CV355 (E.D.
Va. June 20, 2003) in purported support of his contention, Flowers dealt
with the pre-1986 version of Section 2520. But when Section 2520(a) was
amended in 1986, its conversion from active to passive voice placed
squarely within its sights anyone who engages in the conduct that is
ascribed to Dyrhaug by the DirecTV Complaint.*fn3
Not surprisingly, DirecTV has cited and attached to its responsive
memorandum copies of a large volume of decisions that
have considered and rejected the identical argument that is now advanced
by Dyrhaug. That argument gains nothing by repetition. It was and is
unpersuasive, and Dyrhaug's attack on Count 3 is rejected.
There is a considerably closer question as to Count 5, which seeks to
equate DirecTV's admittedly intangible bundle of rights to "property"
that may be the subject of a tort action for conversion. Consistently
with the historic origins of that tort, In re Thebus, 108 Ill.2d 255,
259, 483 N.E.2d 1258, 1260 (1985) has quoted the definition from
Restatement (Second) of Torts § 222A:
Conversion is an intentional exercise of dominion or
control over a chattel which so seriously interferes
with the right of another to control it that the actor
may justly be required to pay the other the full value
of the chattel.
Thebus, id. at 260, 483 N.E.2d at 1260 then went on to quote other
authorities along the same lines, including this language from 18
AmJur.2d Conversion § 9, at 164 (1965):
It 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. . . .
Is DirecTV's congeries of rights "connected with something tangible" in
that sense? Although the issue is not free from doubt, it would appear
that the television images received by a claimed violator such as Dyrhaug
through his assertedly illegal interception and use of DirecTV's
electronic communications would
satisfy the tort's requirements as so articulated, in much the same
manner as the situations involving other intangible property that have
been found actionable in such Illinois cases as Bilut v. Northwestern
Univ., 296 Ill. App.3d 42, 52, 692 N.E.2d 1327
, 1332 (1st Dist. 1998),
Stathis v. Geldermann, Inc., 295 Ill. App.3d 844, 856, 692 N.E.2d 798
807 (1st Dist. 1998) and Conant v. Karris, 165 Ill. App.3d 783, 792,
520 N.E.2d 757, 763 (1st Dist. 1987).
In sum, though the issue as to Count 5 is obviously a good deal closer
than the clear sustainability of Count 3, Count 5 also survives Dyrhaug's
challenge, Dyrhaug's motion is denied in that respect as well.