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United States District Court, N.D. Illinois

March 25, 2004.

DIRECTV, INC., Plaintiff,

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


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 Page 2 "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 conduct.

  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, other Page 3 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 Page 4 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 Page 5 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.


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