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DIRECTV, INC. v. KOCH

United States District Court, N.D. Illinois


May 11, 2004.

DirecTV, Inc.
v.
Koch

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. ยง 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 deprived of."

  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.

20040511

© 1992-2004 VersusLaw Inc.



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