The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, DirecTv, Inc., filed suit against Defendant, Paul
Johnson, alleging that Defendant purchased and used devices
designed primarily for the purpose of pirating DirecTv's
satellite transmissions in derogation of DirecTv's rights to
receive compensation for receipt of its signals. Plaintiff seeks
civil damages in the form of actual or statutory damages, as well
as injunctive relief pursuant to 18 U.S.C. § 2512, as set forth
in Count III of the Complaint. Plaintiff also seeks damages for
civil conversion in Count V of the Complaint.
Presently before the Court is Defendant's Motion to Dismiss
Count V (conversion) of Plaintiff's Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) and Counts I, II, III, and IV on
statute of limitations grounds.
In reviewing a motion to dismiss, the court considers all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). A plaintiff is not required to plead the facts
or the elements of a claim, with the exceptions found in Federal
Rule of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002) (Walker). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible to hypothesize facts, consistent with the complaint,
that would make out a claim." Graehling v. Vill. of Lombard,
Ill., 58 F.3d 295, 297 (7th Cir. 1995).
A reading of the Complaint supports the following summary of
the alleged operative conduct of the parties.
DirecTv is a California-based company in the business of
distributing satellite television broadcasts throughout the
United States. DirecTv developed a satellite system capable of
transmitting various digitized video and audio signals to homes
and businesses nationwide to be used for entertainment purposes,
also known as "satellite programming." DirecTv relays digital
signals from the United States to satellites orbiting many miles
above Earth. Those signals are then broadcast back to Earth,
where fixed outdoor satellite dishes can receive DirecTv's
satellite programming. The satellite dish is connected by cable
to an indoor satellite receiver, which is then connected by cable
to a television monitor.
The signal beamed from space to various areas in the United
States can be received by installing a satellite dish and paying
DirecTv a fee to use its television broadcast services. DirecTv
uses encryption technology to digitally scramble the signal. The
signal is unusable before it is unscrambled. Each indoor
satellite receiver contains a removable access card that holds a
computer-type chip that stores and applies the information
necessary to unscramble the satellite signals received through
the satellite dish. DirecTv electronically programs these access
cards to close or open television channels based upon the
particular programming package a customer has purchased. The encryption technology used by DirecTv has not prevented the
development of devices and equipment (pirate access devices)
which provide the user with access to all of DirecTv's satellite
programming with no payment to the company.
On or about July 6, 2000, Defendant ordered a programming
device from "Whiteviper" which may be useful in programming
DirecTv access cards. DirecTv obtained Whiteviper's records,
including those of Defendant's purchase, via settlement on
September 14, 2001. DirecTv originally filed suit against the
Defendant on September 10, 2003.
The Defendant received the satellite programming by means
including but not limited to: (a) maintaining satellite dishes
capable of receiving satellite programming on television monitors
and further maintaining electronic devices which enable the
Defendant to unscramble, receive, and exhibit encrypted satellite
programming transmissions without authorization; and/or (b) by
such other means to effectuate the unauthorized reception of the
satellite programming which are unknown to DirecTv and known only
Defendant contends that Count III of Plaintiff's Complaint
should be dismissed because, as a matter of law, 18 U.S.C. § 2520
does not support a civil cause of action for violations of
18 U.S.C. § 2512, and that Counts I, II, III, and IV should be
dismissed upon statute of limitations grounds. In addition,
Defendant contends that Count V of Plaintiff's Complaint should
be dismissed because the Plaintiff cannot state a cause of action
for the alleged conversion of satellite signals.
Count III alleges a private cause of action under Section 2512.
As previously found by this Court and other courts, Section 2512
does not create a private cause of action, express or implied.
See DirecTv, Inc. v. Westendorf, 2003 WL 22139786 at 2, (N.D.
Ill. Sept. 16, 2003); DirecTv, Inc. v. Cardona,
275 F.Supp.2d 1357, 1368 (M.D. Fla. 2003); DirecTv, Inc. v. Hinton, 2004 WL
856555 at 3, (N.D.Ill. Apr. 21, 2004); DirecTv, Inc. v. Stolz, 2004 WL
1490261 at 3, (N.D.Ill. July 1, 2004). Accordingly, Count III is
Count V seeks relief for civil conversion and alleges that
Defendant has unlawfully converted Plaintiff's property for the
Defendant's use and benefit and that such conversion was done
intentionally and wrongfully by the Defendant to deprive the
Plaintiff of its proprietary interests and for Defendant's direct
benefit and advantage.
As previously found by this Court and other courts in other
DirecTv suits alleging the same or similar facts, no cause of
action for conversion under Illinois law lies for an intercepted
signal. Accordingly, Count V is dismissed. See DirecTv, Inc. v.
Maraffino, 2004 WL 170306 (N.D. Ill. Jan. 23, 2004); DirecTv,
Inc. v. Allen, 2004 WL 170328 (N.D. Ill. Jan. 23, 2004);
DirecTv, Inc. v. Patel, 2003 WL 22682443 (N.D. Ill. Nov. 12,
2003); DirecTv, Inc. v. Geenen, 2003 WL 22669029 (N.D. Ill.
Nov. 10, 2003); DirecTv, Inc. v. Hinton, 2004 WL ...