Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DIRECTV, INC. v. OSTROWSKI

May 11, 2004.

DIRECTV, Inc., Plaintiff,
v.
DALE OSTROWSKI and WILLIAM R. OSTROWSKI, Defendants



The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT DALE OSTROWSKI'S MOTION TO DISMISS COUNTS III AND V OF PLAINTIFF'S COMPLAINT
Plaintiff alleges that Defendants purchased and used a device to decrypt or unscramble Plaintiff's "DIRECTV" satellite programming and that Defendants then displayed this programming without authorization. The complaint includes five counts. Count I seeks relief under 47 U.S.C. § 605(e)(3)(C) for unauthorized interception and exhibition of copyrighted materials. Count II is brought under 18 U.S.C. § 2520 for interception, disclosure, or use of electronic communications in violation of 18 U.S.C. § 2511. Count III is brought under 18 U.S.C. § 2520 for possession, manufacture, or assembly of a device useful for the surreptitious interception of electronic communications in violation of 18 U.S.C. § 2512(1)(b). Count IV seeks damages under 47 U.S.C. § 605(e)(4) for assembly or modification of a device used primarily to facilitate unauthorized decryption of satellite programming. Count V asserts a cause of action for civil conversion under Illinois common law. Defendant Dale Ostrowski ("Defendant") has moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts III and V, For the reasons stated below, Defendant's motion to dismiss is granted as to Count III and denied as to Count V.

LEGAL STANDARD

  "A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint for failure to state a claim upon which relief may be granted." Johnson v. Rivera, 272 F.3d 519, 520-21 (7th Cir. 2001). In ruling on the motion, the Court accepts as true all well-pleaded facts alleged in the complaint and draws all reasonable inferences from those facts in favor of Plaintiff. See, e.g., Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir. 1999). Dismissal for failure to state a claim is not appropriate unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

  DISCUSSION

  A. Count III

  As noted above, in Count III, Plaintiff alleges that Defendant violated 18 U.S.C. § 2512(1)(b), a criminal statute which prohibits the manufacture, possession and assembly of certain interception devices. Section 2512(1)(b) does not itself prohibit interception, disclosure, or use of protected communications. Rather, such activities, among others, are proscribed by another criminal statute, 18 U.S.C. § 2511. The parties do not dispute that violations of § 2511 for interception, disclosure, or use are made civilly actionable by 18 U.S.C. § 2520. In fact, in Count II, Plaintiff is seeking relief under § 2520 for such alleged violations of § 2511 and Defendant has not moved to dismiss Count II, Instead, the dispute before the Court centers on Plaintiff's contention that § 2520 also renders civilly actionable violations of § 2512(1)(b) for, among other things, possession and assembly of prohibited devices. Defendant argues that Count III should be dismissed because 18 U.S.C. § 2520 does not render civilly actionable such alleged violations of § 2512(1)(b).

  This issue concerning whether § 2520 renders civilly actionable alleged violations of § 2512(1)(b) has split numerous district courts across the country and within this judicial district. Reasonable minds obviously can disagree as to which side has the better of the argument, but, as explained below, this Court respectfully rejects Plaintiff s position and agrees with Defendant that Count III should be dismissed.

  Section 2520 states, in pertinent part, as follows

 
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 than the United States, which engaged in that violation such relief as may be appropriate.
18 U.S.C. § 2520. The courts holding that § 2520 renders civilly actionable alleged possession and assembly of devices in violation of § 2512(1)(b) have reasoned that inclusion of the phrase "in violation of this chapter" in § 2520 should be understood to mean that a civil cause of action is available to redress a violation of any of the subsections of Chapter 119 of Title 18 of the U.S. Code (which includes Section 2512(1)(b) and its prohibition against possession and assembly of devices). See, e.g., Directv, Inc. v. Perez, 279 F. Supp.2d 962, 964 (N.D. Ill. 2003); Directv, Inc. v. Dillon, No. 03-8578, 2004 WL 906104, at *2 (N.D. Ill. April 27, 2004); Directv, Inc. v. Dyrhaug, No. 03-8389, 2004 WL 626822, at *1 (N.D. Ill. March 26, 2004); Oceanic Cablevision, Inc. v. M.D. Elecs., 771 F. Supp. 1019, 1027 (D. Neb. 1991). The courts holding that § 2520 does not render civilly actionable alleged possession and assembly of devices in violation of § 2512(b), on the other hand, have interpreted § 2520 to provide a civil remedy only for violations involving actual interception, disclosure or use of protected communications. See, e.g., Directv, Inc. v. Maraffmo, No. 03-3441, 2004 WL 170306, at *3 (N.D. Ill. Jan. 23, 2004); Directv, Inc. v. Castillo, No. 03-3456, 2004 WL 783066, at *1 (N.D. Ill. Jan. 2, 2004); Directv, Inc. v. Delaney, No. 03 C 3444, at 7-8 (N.D. Ill. Nov. 20, 2003); Directv, Inc. v. Beecher, 296 F. Supp.2d 937, 942 (S.D. Ind. 2003). Or put differently, § 2520 does not render civilly actionable mere possession of dubious devices. For these courts, the portion of § 2520 which states that "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 . . . which engaged in that violation," 18 U.S.C. § 2520 (emphasis added), should be read so that the phrase "that violation" refers to "intercepted, disclosed, or intentionally used." See Maraffmo, No. 03-3441, 2004 WL 170306, at *3 ("As a matter of grammar and sentence structure, the phrase `that violation' must refer to the interception, disclosure, or intentional use of a communication. . . .") (citing Beecher, 296 F. Supp.2d at 942).

  Various courts have thoughtfully expressed the competing textualist arguments (neither litigant has cited any legislative history, and none of the precedent discusses any either), and this Court does not believe it has anything meaningful to add in that interpretive debate. The Court finds persuasive the view that the language of § 2520 is most fairly read to render actionable alleged violations involving interception, disclosure, or intentional use of communications, as contrasted with, for example, simple possession of dubious devices. See, e.g., Beecher, 296 F. Supp.2d at 941. On this basis, the Court would find that Count III should be dismissed.

  The Court's conclusion is buttressed by a Fifth Circuit decision that perhaps has escaped the parties' attention and that lends support to the view that Count III should be dismissed. Specifically in Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000), the Fifth Circuit, in addressing the scope of civil liability delimited by § 2520, has held that the phrase "`that violation' [in § 2520] refers only to illegal interception, disclosure, or use." Peavy, 221 F.3d at 169. In Peavy, the plaintiff brought an action against defendants under § 2520 for violations of § 2511. However, the plaintiff sought to recover not only for the defendants' alleged interception, disclosure, and use of protected communications, but also sought to impose liability for the defendants' procurement of someone to intercept protected communications. See id. at 168-69. Notwithstanding the "in violation of this chapter" language of § 2520, and the fact that § 2511 itself does prohibit such procurement (see § 2511(1)(a)), the Fifth Circuit held that § 2520 does not render civilly actionable such procurement because "the referenced `violation' is `intercepted, disclosed, or intentionally used'; there is no mention of `procures'." Id. at 169 (emphasis removed). Peavy's holding that § 2520 does not reach to procurement violations in the context of interpreting the civil liability imposed by § 2520 and § 2511 supports the view that § 2520 and § 2512 do not reach as far as Plaintiff would like them in Count III, where Plaintiff seeks to impose liability without being required to prove interception, disclosure or use.

  In summary, the Court agrees with the courts which have held that § 2520 does not provide for civil liability for possession and assembly violations of § 2512, and finds that Peavy lends further support for such a conclusion. By its terms., § 2520 does not render civilly actionable any and all violations of Chapter 119 of Title 18 of the U.S. Code. Rather, inasmuch as § 2520 provides a civil remedy to "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter . . . from the person or entity . . . which engaged in that violation," "`that violation' refers only to illegal interception, disclosure, or use." Peavy, 221 F.3d at 169; accord, e.g., Maraffino, 2004 WL 170306, at *3. Because Count III does not seek to base liability on Defendant's alleged interception, disclosure, or use of protected communications, but rather on possession of devices, Count III is dismissed.

  B. Count V

  In Count V, Plaintiff has asserted a cause of action for common law conversion under Illinois law. Plaintiff has alleged that Defendant, by his unauthorized interception and display of Plaintiff's satellite programming, has unlawfully deprived Plaintiff of its proprietary interests in that programming. To state a claim for conversion, Plaintiff must allege that (1) it has a right to the property; (2) it has an absolute an unconditional right to the immediate possession of the property; (3) it made a demand for possession; and (4) Defendant wrongfully and without authorization assumed control, dominion, or ownership over the property. See Cirrincione v. Johnson, 703 N.E.2d 67, 70 (Ill. 1998). Defendant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.