Opinion
No. 03 C 8090
June 1, 2004
MEMORANDUM OPINION AND ORDER
Defendant Keith Klein ("Klein") has filed a motion to dismiss Counts III and V of plaintiff DirecTV, Inc.'s ("DirecTV") five-count complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendant's motion to dismiss is GRANTED as to Count III and DENIED as to Count V.
Background
This is one of thousands of similar cases filed in various district courts across the country, wherein DirecTV has sued an individual defendant for allegedly purchasing and using devices designed to intercept and decrypt DirecTV's protected satellite communications. Specifically, Count III of DirecTV's complaint seeks a civil remedy pursuant to 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. Count V asserts an Illinois common law cause of action for conversion. Legal Analysis
Klein's motion to dismiss raises two issues. First, as to Count III, we must determine whether § 2520 provides a civil right of action for a violation of § 2512. Then, as to Count V, we must determine whether plaintiff has stated a valid common law claim for conversion under Illinois law. Neither of these issues are novel and both have been addressed by numerous courts in this district and across the country, with divided results. The Seventh Circuit has not addressed either issue. However, based on the divided results within this district, we predict that it will in the near future.
Count III
A majority of the courts that have addressed the issue of whether § 2520 provides a civil right of action for violation of § 2512 have found that it does not. Compare, e.g., DirecTV, Inc. v. Wilson, No. 03 C 3516, 2004 WL 1094244 (N.D.Ill. May 13, 2004) (Grady, J.) (no cause of action); DirecTV, Inc. v. Ostrowski, No. 03 C 8618, 2004 WL 1102419 (N.D.III. May 12, 2004) (Filip, J.) (no cause of action); DirecTV, Inc. v. Hinton, No. 03 8477, 2004 WL 856555 (N.D.III. Apr.21, 2004) (Darrah, J.) (no cause of action); DirecTV, Inc. v. Frey, No. 03 C 3476, 2004 WL 813539 (N.D.III. Apr.14, 2004) (Zagel, J.) (no cause of action); DirecTV, Inc. v. Hauser, No. 03 C 8396, 2004 WL 813628 (N.D.III. Apr.13, 2004) (Moran, J.) (no cause of action); DirecTV, Inc. v. Maraffino, No. 03 C 3441, 2004 WL 170306 (N.D.III. Jan.23, 2004) (Lefkow, J.) (no cause of action); DirecTV, Inc. v. CastilIo, No. 03 C 3456, 2004 WL 783066 (N.D.III. Jan.2, 2004) (St.Eve, J.) (no cause of action); DirecTV, Inc. v. Delaney, No. 03 C 3444, Memorandum Opinion (Nov. 20, 2003) (Kocoras, C.J.) (no cause of action); and DirecTV, Inc. v. Westendorf, No. 03 C 50210, 2003 WL 22139786 (N.D.III. Sept.16, 2003) (Reinhard, J.) (no cause of action) with DirecTV, Inc. v. Dillon, No. 03 C 8578, 2004 WL 906104 (N.D.III. Apr.27, 2004) (Aspen, J.) (cause of action); DirecTV, Inc. v. Dyrhaug, No. 03 C 8389, 2004 WL 626822 (N.D.III. Mar.26, 2004) (Shadur, J.) (cause of action); and DirecTV, Inc. v. Gatsiolis, No. 03 C 3534, 2003 WL 22111097 (N.D.III. Sept. 10, 2003) (Coar, J.) (cause of action).
After reviewing each of these cases, we believe that the other judges in this district have thoughtfully and thoroughly expressed the competing arguments relating to this issue and we do not have anything further to add to the debate. That said, we agree with the majority of the judges that there is no civil cause of action under § 2512 and we adopt the analysis of Chief Judge Kocoras in DirecTV, Inc. v. Delaney, 03 C 3444, and the supplemental analysis of Judge Filip in DirecTV, Inc. v. Ostrowski, 2004 WL 1102419. Therefore, Count III of the complaint is dismissed with prejudice.
Count V
The courts in this district are also divided as to whether DirecTV has stated a valid cause of action for conversion under Illinois law, although fewer courts have addressed this issue. Compare e.g., Wilson, 2004 WL 1094244 (no cause of action); Hinton, 2004 WL 856555 (no cause of action); Frey, 2004 WL 813539 (no cause of action); Maraffino, 2004 WL 170306 (no cause of action); Castillo, 2004 WL 783066 (no cause of action); and DirecTV, Inc. v. Patel, No. 03 C 3442, 2003 WL 22682443 (N.D.III. Nov.12, 2003) (Coar, J.) (no cause of action) with Ostrowski, 2004 WL 1102419 (cause of action); Dillon, 2004 WL 906104 (cause of action); Hauser, 2004 WL 813628 (cause of action); Dyrhaug, 2004 WL 626822 (cause of action); and Delaney (cause of action).
Six courts in this district have found that the tort of conversion does not lie under the facts as alleged in the complaint, while five courts have found that it does. As demonstrated by this division, this issue is a close one with colorable arguments on both sides. We agree with the narrow minority and again adopt the analysis of Chief Judge Kocoras and the supplemental analysis of Judge Filip. Therefore, the motion to dismiss Count V is denied.
Conclusion
For the foregoing reasons, defendant Keith Klein's motion to dismiss is GRANTED as to Count III and DENIED as to Count V. Count III is dismissed with prejudice. It is so ordered.