United States District Court, N.D. Illinois
May 11, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Clifton Koch, has filed a pro se motion to dismiss all five
counts of plaintiff, DirecTV, Inc's, complaint pursuant to Fed.R.Civ.P.
12(b) (Counts III and V) and Fed.R.Civ.P. 11(b) (Counts I, II, and IV).
Defendant contends as to Counts I, II, and IV that plaintiff has "no
evidence that their signal was ever illegally intercepted or that any
illegal activity what so ever has occurred" and that plaintiff "cannot
meet the evidentiary requirements to satisfy Federal Civil Procedure
Rule 11(b)." Questions of evidentiary sufficiency are not properly
raised by a motion to dismiss. Therefore, the court denies the motion to
dismiss as to Counts I, II, and IV.
The court grants the motion to dismiss as to Count III as there is no
civil cause of action under 18 U.S.C. § 2512. See, e.g., DirecTV. Inc.
v. Westendorf, No. 03 C 50210, minute order of Sept. 15, 2003 (one of
this court's prior orders dismissing a claim under section 2512).
As for the motion to dismiss Count V, defendant contends that plaintiff
has not stated a cause of action for conversion under Illinois law
because "[o]nce a satellite signal is broadcast, it is gone." Thus,
defendants argues that there is no property "that the Plaintiff can be
Under Illinois law, the elements of conversion are: (1) the plaintiff's
right in the property; (2) the plaintiff's right to the immediate,
absolute, and unconditional possession of the property; (3) the
defendant's unauthorized and wrongful assumption of control, dominion, or
ownership over the property; and (4) a demand by the plaintiff for
possession of the property. DirecTV. Inc. v. Patel, 2003 WL 22682443, *1
(N.D. Ill. Nov. 12, 2003): Neslon v. Sotheby's Inc., 115 F. Supp.2d 925,
929 n.2 (N.D. Ill. 2000).
Defendant's contention that once the satellite signal is broadcast
plaintiff has no more property interest in it fails to recognize the
nature of the signal and plaintiff's interest in it. The signal is
tangible in the sense that it has physical attributes and is connected to
tangible objects, the transmitter and receiver. A party may, in fact,
exercise control and dominion over it through the use of devices such as
those at issue in this case. If no fee is paid to do so, then such
control and dominion are unauthorized. When plaintiff transmits the
signal it does not abandon its interest, nor does the signal evaporate as
defendant suggests. Rather, the signal rematerializes in a new form with
audio and visual characteristics. Plaintiff retains a property interest
in the signal in its new form as well. If defendant acquired the signal
without authority as alleged, then it has converted the property of
plaintiff. See, e.g., DirecTV. Inc. v. Dillon. 2004 WL 906104 (N.D. Ill.
April 27, 2004); DirecTV. Inc. v. Hauser. 2004 WL 813628 (N.D. Ill. April
13, 2004); DirecTV. Inc. v. Dyrhaug, 2004 WL 626822 (N.D. Ill. March 26,
2004). Accordingly, the court denies the motion to dismiss Count V.
For the foregoing reasons, the court grants the motion to dismiss Count
III and denies the motion to dismiss as to Counts I, II, IV, and V.
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