Opinion
CIVIL ACTION No. 03-1450 ALL CASES SECTION "N" (1).
August 4, 2004
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by defendants. For the reasons that follow, defendants' motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff DIRECTV, Inc. ("DIRECTV") is a California-based company in the business of distributing satellite television broadcasts throughout the United States. Plaintiff brought this action against multiple defendants located within the Eastern District of Louisiana, seeking damages and other relief pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 605, and the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, and the Communications Assistance for Law Enforcement Act of 1994, 18 U.S.C. § 2510-22, as well as Louisiana law. Plaintiff alleges inter alia that the defendants used electronic communication intercepting devices to surreptitiously intercept, unscramble, and exhibit plaintiff's encrypted satellite television programming.
On September 4, 2003, defendant Edward Sims filed a Motion to Dismiss Count III of the Complaint pursuant to Rule 12(b)(6). DIRECTV, Inc. v. Brain Jerolleman, et al., Civil Action No. 03-1465 (Rec.Doc. 5). In Count III, plaintiff alleged that the defendants possessed, manufactured, and/or assembled electronic communication intercepting devices in violation of 18 U.S.C. § 2512. On November 12, 2003, finding that no private civil right of action exists for violations of section 2512, this Court granted defendant's motion and dismissed Count III of plaintiff's Complaint as to defendant Sims. CA No. 03-1465 (Rec.Doc. 12).The ruling later was made applicable to all DIRECTV cases pending in the Eastern District of Louisiana. DIRECTV, Inc. v. Tommy Brady, et al., Civil Action No. 03-1450 (Rec.Doc. 18).
On April 23, 2004, DIRECTV filed a Motion for Partial Dismissal of the state law civil conversion claims (Count V) in all consolidated cases. (Rec.Doc. 31). The Court signed the Order of Partial Dismissal on April 29, 2004. (Rec.Doc. 31). Accordingly, the only claims that remain against the numerous defendants are those found in Counts, I, II, and IV.
Pursuant to Magistrate Shushan's Scheduling Order issued on March 11, 2004, Civil No. 03-1450 (Rec.Doc. 18), defendants have filed this motion for summary judgment, in which they seek dismissal of the claims asserted in Counts I, II, and IV as time-barred.
The moving defendants are those named in the Complaints which are subject to this Cout's March 10, 2004 Consolidation Order. DIRECTV, Inc. v. Tommy Brady, et al., Civil Action No. 03-1450 (Rec.Doc. 16). Those cases are Civil Action Nos. 03-1450, 03-1451, 03-1452, 03-1453, 03-1454, 03-1455, 03-1456, 03-1457, 03-1458, 03-1459, 03-1460, 03-1461, 03-1462, 03-1463, 03-1464, 03-1465, 03-1466, 03-1467, 03-1468, 03-1469, 03-1470, 03-1471, 03-1472, 03-1473, 03-1475, 03-1486, 03-1487, 03-2561, 03-2562, 03-2563, 03-2464, 03-2465, 03-2466, and 03-2467. The Court acknowledges that some of the claims in the consolidated cases have been dismissed. Therefore, any statements or rulings which tend to bear upon the timeliness of dismissed claims should be disregarded as irrelevant.
Defendants also move the Court to grant summary judgment and dismiss Count V (state law conversion claim) as prescribed. However, that issue is moot as all Louisiana civil conversion claims asserted by plaintiff in the consolidated cases have been dismissed without prejudice. (Rec.Doc. 31).
II. LAW AND ARGUMENT
A. Summary Judgment Standard"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
B. Counts I and IV, 47 U.S.C. § 605
In Count I of its Complaints, DIRECTV seeks relief pursuant to the Federal Communications Act, specifically 47 U.S.C. § 605(e), which authorizes a civil action for a violation of Section 605(a) for the alleged interception, receipt or exhibition of satellite programming. In Count IV, DIRECTV seeks relief under 47 U.S.C. § 605(e)(4), as a result of the defendants' alleged manufacture, assembly or modification of devices "used primarily in the assistance of the unauthorized decryption of satellite programming."
1. The Applicable Time Period
The Federal Communications Act ("FCA") does not set forth a specific statute of limitations for interception of cable and wire communications. Prostar v. Massachi, 239 F.3d 669, 671 (5th Cir. 2001). Therefore, where a statutory provision authorizing a civil cause of action does not contain an express limitations period, the Court must determine the appropriate statute of limitations by analogy to state or federal sources. Id. at 672, citing North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995). The parties disagree as to whether a two-year or three-year statute of limitations applies to violations of 47 U.S.C. § 605.
In the leading case to consider this issue, the Fifth Circuit held that violations of 47 U.S.C. § 553 and 605 were governed by the three-year limitations period set forth in the federal Copyright Act. Prostar v. Massachi, 239 F.3d 669. In that case, the district court had adopted the one-year prescriptive period for delictual actions under Louisiana law and granted summary judgment in favor of defendants. Id. at 671. On appeal to the Fifth Circuit, the plaintiff Prostar argued that the Court should have applied the Copyright Act's three-year limitations period, or, alternatively, either the ten-year prescriptive period for personal actions under Louisiana or the three-year period applicable to actions under La.C.C. art. 3494. Id. In concluding that the federal Copyright Act provided the appropriate federal-law analogue to Prostar's FCA claims, the Fifth Circuit placed great emphasis on the "multistate nature" of actions brought under the FCA and the need for a "single federal standard" which would eliminate the practical difficulties resulting from the application of fifty different state standards and which would "[facilitate] resolution of the national problems addressed by the FCA." Id. at 676-77.
In explaining why the Copyright Act provides a closer fit than conversion, the Fifth Circuit noted:
The Copyright Act and the FCA both protect proprietary rights in the context of cable transmissions. The Copyright Act prohibits infringement by anyone who violates any of the exclusive rights of the copyright owner. Infringement encompasses the unauthorized performance or display of motion pictures and other audiovisual works. Moreover the statute explicitly prohibits infringement in the context of secondary transmissions by cable systems. The unauthorized access and retransmission of cable broadcasting, which the FCA prohibits, do not actually deprive the licensee of its license. Whereas conversion requires the wrongful deprivation of one's property, the Copyright Act provides for liability when mere copying occurs, rendering it a more appropriate analogue to the FCA.239 F.3d at 677 (footnotes and internal citations omitted). The Fifth Circuit also recognized the similar remedial structures of both statutes:
For instance, the FCA and the Copyright Act allow for statutory and actual damages. Both acts give the court discretion to increase the statutory damage award for willful violations. Finally, both acts also provide for the award of costs and attorney's fees.Id. (footnotes and citations omitted).
Despite the clear language of the Fifth Circuit, defendants argue that the Prostar decision and the three-year limitation period provided by the federal Copyright Act should not apply to the alleged violations of 47 U.S.C. § 605 now before the Court. Defendants argue that this Court should instead apply the two-year limitations period applicable to claims brought pursuant to 18 U.S.C. § 2520. Defendants distinguish Prostar from the matter at hand because the Prostar court had before it alleged violations of both Sections 553 and 605 of Title 47 of the United States Code, whereas Counts I and IV here allege violations of only Section 605. Defendants also argue that the Prostar court did not consider the applicability of Section 2520 and that Section 2520 provides a closer fit to the violations of Section 605, as alleged by DIRECTV. The Court will address these two arguments separately.
Courts deciding the issue of the applicable limitations period for claims brought pursuant to Sections 553 and 605 continue to follow Prostar and hold that the three-year limitations period of the Copyright Act apply to the FCA claims. See, e.g., National Satellite Sports, Inc. v. Time Warner Entertainment Co., L.P., 255 F. Supp.2d 307 (April 4, 2003); Time Warner Cable National Division v. Bubacz, 198 F. Supp.2d 800 (N.D. W. Va. 2001). See also Kingvision Pay Per View, Ltd. v. Boom Town Saloon, Inc., 98 F. Supp.2d 958 (N.D. Ill. 2000).
First, the Court is not persuaded by defendant's argument which basically suggests that had the Fifth Circuit had only Section 605 claims before it in Prostar, the issue would have been decided differently. Indeed, in holding that the three-year limitations period articulated in the Copyright Act governed Prostar's FCA claims, the Fifth Circuit specifically rejected the reasoning adopted in Joe Hand Promotions, Inc. v. Lott, 971 F. Supp. 1058 (E.D.La. 1997). In Joe Hand (the case upon which the Prostar district court had relied in reaching its decision), the district court applied Louisiana's one-year delictual actions limitations period to a Section 605 claim and dismissed the claim as prescribed. In granting defendant's 12(b)(6) motion to dismiss, the district court did not have before it any claim filed pursuant to Section 553. Defendants argument here is entirely speculative and not supported by the caselaw.
In addition, at least one Judge sitting within this Circuit has stated in dicta that Prostar applies singularly to Section 605 claims. See DIRECTV, Inc. v. John Breaux, et al., No. 2:02 CV 2666, p. 4 (W.D.La. April 11, 2003) (J. Trimble) (stating that the Fifth Circuit held in Prostar that "the three-year limitations period articulated in the Copyright Act governs claims pursuant to 47 U.S.C. § 605").
The Court is likewise not persuaded by defendant's argument that the appropriate federal analogue here is the two-year limitations period provided by Section 2520. In so arguing, defendants completely ignore the reasoning employed by the Fifth Circuit in Prostar, i.e., that a uniform federal standard to enforce of the FCA is necessary to address the issues faced a distinctly national enterprise, such as the cable industry. For this Court to hold that Section 2520, and not the federal Copyright Act, provides the appropriate federal-law analogue would undermine not only the Fifth Circuit's rationale in Prostar, but would also undermine the FCA. If the Court ruled in defendants' favor on this issue, the Court would be establishing a different standard for (i) Section 605 cases involving piracy of satellite programming different and (ii) Section 605 cases involving piracy of cable. The Court does not think that this is what the Fifth Circuit intended when deciding Prostar, nor what Congress intended in enacting the FCA. Accordingly, the Court finds that the appropriate limitations period applicable to plaintiff's claims allegedly arising out of violations of 47 U.S.C. § 605 is the three-year limitations period set forth in the federal Copyright Act.
2. Whether plaintiff's claims are time-barred
The Court therefore must address the next question, i.e., when the three-year limitations period began to run on the claims asserted in Counts I and IV.
Because the Court will look to the federal Copyright Act for the appropriate limitations period, the Court finds that the accrual of plaintiff's claims should likewise be addressed as would the accrual of claims under the Copyright Act. Stated otherwise, "[a] cause of action for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge." Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994) (citation omitted). See also Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796 (4th Cir. 2001). A cause of action accrues when "a plaintiff knows or has reason to know of the injury upon which the claim is premised. . . ." Weber v. Geffen Records, Inc., 63 F. Supp.2d 458, 464 (S.D.N.Y. 1999). "As in all statute of limitations inquiries, accrual will be later than the date of violation only to the extent that plaintiff exercised reasonable diligence but remained unaware of the violation." Id. (citations omitted).
Having reviewed the applicable law and the record, and taking all inferences in the light most favorable to the opposing party DIRECTV, the Court finds that it is unnecessary to establish an accrual date here as defendants have failed to establish that plaintiff had knowledge of any violations more than three years prior to the filings of any of the Complaints. Therefore, because all of the cases before the Court were filed not later than September 11, 2003, the Court finds that the claims are not prescribed. Accordingly, the Court denies defendants' motion for summary judgment insofar as defendants seek dismissal of Counts I and IV as time-barred.
All of the Complaints herein were filed on one of three dates. First, Civil Action Nos. 03-1450, 03-1451, 03-1452, 03-1453, 03-1454, 03-1455, 03-1456, 03-1457, 03-1458, 03-1459, 03-1460, 03-1461, 03-1462, 03-1463, 03-1464, 03-1465, 03-1466, 03-1467, 03-1468, 03-1469, 03-1470, 03-1471, 03-1472, 03-1473, and 03-1475 were filed on May 22, 2003. Second, Civil Action Nos. 03-1486 and 03-1487 were filed on May 23, 2003. Third, Civil Action Nos. 03-2561, 03-2562, 03-2563, 03-2464, 03-2465, 03-2466, and 03-2467 were filed on September 11, 2003. Accordingly, the dates which the Court must look at for purposes of accrual of the three-year limitations period applicable to Counts I and IV are, respectively, May 22, 2000, May 23, 2000, and September 11, 2000.
C. Count II, 18 U.S.C. § 2520
Section 2520(a) creates a private right of action for certain violations of the Wiretap Act, such as that alleged by plaintiff in Count II of its Complaint. Section 2520(e) provides an express limitation period applicable to claims brought for violations of Section 2511:
A civil action under this section shall not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation.
(Emphasis added). Accordingly, for purposes of the present motion, the Court must determine whether plaintiff first had a reasonable opportunity to discover the alleged violation(s) by the individual defendants at a time more than two years prior to the filing of the individual Complaints.
In opposing defendants' motion, DIRECTV urges this Court to find that accrual here is based upon discovery, i.e., when plaintiff had " real knowledge of the defendant's violative activities. . . ." Pl.'s Opp. Mem., pp. 2-3. According to DIRECTV, "the accrual of the cause of action in these cases should begin when DIRECTV received business records which identified Defendants." Pl.'s Opp. Mem., pp. 2-3. In support of its position, DIRECTV cites a number of cases, including CSC Holdings, Inc. v. Redisi, 309 F.3d 988 (7th Cir. 2002); Time Warner National Division v. Bubacz, 198 F. Supp.2d 800 (N.D.W. Va. 2001); Time Warner Cable v. Cable Box Wholesalers, Inc., 920 F. Supp. 1048 (D. Ariz. 1996).
The Court, however, finds DIRECTV'S reliance on the cases cited above to be misplaced. First, each one of those cases concerned violations of the Cable Communications Policy Act, specifically 47 U.S.C. § 553 and/or § 605, and not violations of Chapter 118 of Title 18 of the United States Code (§§ 2510-2521). More importantly, though, plaintiff's argument ignores the plain language of Section 2520, which requires only that the plaintiff have reasonable opportunity to discover the violation. Plaintiff's interpretation deletes the term "reasonable opportunity to discover" from the statute and replaces it with the more lenient discovery standard. Plaintiff's reading is simply incorrect, and the caselaw interpreting the Wiretap Act and Section 2520 confirms such.
"Like many statutes of limitation, [Section 2520(e)] does not require the claimant to have actual knowledge of the violation. . . ." Davis v. Zirchenbach, 149 F.3d 614, 618 (7th Cir. 1998). "[T]here is no need that someone actually `discover' or be aware of the violation." Sparshott v. Feld Entertainment, Inc., 311 F.3d 425, 430 (D.C. Cir. 2003) (finding that plaintiff's argument that she was "unaware" of the wiretapping and that she was not on adequate notice misunderstood the law). "Rather, the question is whether the [claimant] had a reasonable opportunity to discover the wiretapping." Id. The focus should be on when the claimant is placed "on inquiry notice that his rights might have been violated." Davis, 149 F.3d at 618 (citations omitted).
For example, a plaintiff need not even know the perpetrators of an illicit wiretapping if knowledge of the wiretapping itself would lead to discovery of the perpetrators. Andes v. Knox, 905 F.2d 188, 189 (8th Cir. 1990). In Andes v. Knox, the Court found that the limitation period began to run in December 1984 when the plaintiff discovered wiretapping at her residence. Id. At the time, plaintiff believed that it was her former husband who had wiretapped her residence. Id. at 188. In fact, her former husband had really hired two private investigators to install the wiretapping devices on plaintiff's telephone lines. Id. It was not until December 1987, when one of the investigators pleaded guilty to wiretapping, that plaintiff became aware that someone besides her former husband had wiretapped her residence. Id. Plaintiff's suit against the two investigators, filed in November 1988 and brought pursuant to Section 2520, was dismissed as time-barred under Section 2520(e) Id. at 188-189. In affirming the district court, the Eighth Circuit reasoned that plaintiff was aware of a cause of action against her former husband at the time she discovered the wiretapping, as that was when plaintiff had "a reasonable opportunity to discover the violation. . . ." Id. at 189.
Having considered the plain language of the statute, the caselaw, the record, and viewing all inferences in the light most favorable to the opposing party, the Court finds as a matter of law that the latest possible date when plaintiff had reasonable opportunity to discover the alleged violations is the date on which the writs of seizure were executed ("the raids"), which then led to plaintiff's receipt of business records and the discovery of the defendants' identities and their violations. The Court agrees with plaintiff in that there is no single universal date upon which the limitation period expires for the many defendants, and this date may differ with each defendant. However, the Court's decision will not result in a difficult undertaking as the Complaints are fairly explicit as to the dates of the raids and in identifying the distributors from whom the individual defendants made purchases.
The Court's finding today is further supported by a recent decision of Judge Drell of the Western District of Louisiana. In DIRECTV, Inc. v. Alphus Hooper, Civil Action No. 03-1404-A (W.D.La. Apr. 8, 2004), Judge Drell dismissed as time-barred Counts II and III (claims based on alleged violations of 18 U.S.C. § 2511 and 2512) of a Complaint filed on July 28, 2001. There, in opposing defendant's Rule 12(b)(6) motion, DIRECTV argued that Section 2520(e) required "real knowledge" before the cause of action accrued and that the statute could not begin to toll until it had obtained and review the voluminous records obtained from the raid. In rejecting DIRECTV's arguments, Judge Drell found as follows:
Starting from the date of the raid on July 25, 2001, Plaintiff had a reasonable opportunity to discover Defendant's alleged offense. It was on inquiry notice that a violation of its rights had occurred, as evinced by the fact that it executed writs of seizure. The two years provided by the statute were ample to discover this defendant's name, and bring this suit. The statute of limitations will not be extended because Plaintiff suffers the logistical task of attempting to bring massive litigation against numerous defendants, needing more time to do so.Hooper, pp. 6-7 (emphasis added).
Accordingly, the Court grants defendants' motion insofar as it seeks judgment as a matter of law dismissing Count II from those Complaints filed more than two years prior to the date of the relevant raid(s). The Court denies defendants' motion insofar as it concerns those claims filed within two years of the relevant raid(s).
In applying this ruling to the facts of each case, the Court must examine each Complaint to determine the date of the raid leading to plaintiff's discovery of the alleged violations of each individual defendant and then compare such with the date that Complaint was filed.
For the majority of the cases, i.e., those filed on May 22, 2003, and May 23, 2003, the Court finds this determination to be a simple task. As alleged in those Complaints, the raids which led to the identification of the individual defendants and their violations took place on May 25, 2001. Therefore, because the Complaints were filed before May 25, 2003, the Section 2520 claims are not time-barred. Accordingly, defendants in Civil Action Nos. 03-1450, 03-1451, 03-1452, 03-1453, 03-1454, 03-1455, 03-1456, 03-1457, 03-1458, 03-1459, 03-1460, 03-1461, 03-1462, 03-1463, 03-1464, 03-1465, 03-1466, 03-1467, 03-1468, 03-1469, 03-1470, 03-1471, 03-1472, 03-1473, 03-1475, 03-1486, and 03-1487 are not entitled to judgment as a matter of law dismissing Count II of the Complaints filed against them.
Similarly, in DIRECTV, Inc. v. Jimmy McDaniel, Civil Action No. 03-2564, plaintiff's claims alleged in Count II are not time-barred. There, it is alleged that two raids were conducted upon Chris and Kathy Schultz, doing business as Mountain Electronics — one on December 11, 2001, and the second on April 18, 2002. Pl.'s Compl., ¶¶ 7, 8. The Complaint also alleges that the defendant made several purchases of Pirate Access Devices from Mountain Electronics. Pl.'s Compl., ¶ 18. Therefore, given the limited information presently before the Court, the earliest date from which plaintiff had a reasonable opportunity to discover the defendant's alleged violations is December 11, 2001. Because the Complaint was filed on September 11, 2003, months prior to the expiration of the two-year limitations period, the Section 2520 claims are not time-barred. Accordingly, defendant Jimmy McDaniel is not entitled to judgment as a matter of law dismissing Count II of the Complaint filed in Civil Action No. 03-2564.
The cases which are more problematic for plaintiff are the remainder of the cases filed on September 11, 2003. For example, in DIRECTV, Inc. v. Terrance Hauck, Civil Action No. 03-2561, plaintiff alleges that, on May 25, 2001, it "executed writs of seizure, with the assistance of local law enforcement, at the mail shipping facility used by several major sources of pirate technologies including White Viper Technologies." Pl.'s Compl., ¶ 3. Plaintiff further alleges that "[o]n September 14, 2001, Derek Trone, the operator of White Viper Technologies, voluntarily surrendered his business records documenting purchases of illegal electronic devices primarily designed for the surreptitious interception of satellite communications broadcast by DIRECTV (`Pirate Access Devices') from White Viper Technologies." Id. According to DIRECTV, "[t]hose records evidence defendants' purchases of illegal Pirate Access Devices." Plaintiff's references to the White Viper records and the date on which they were surrendered are simply irrelevant here. On the other hand, what is relevant for this determination is that the defendant purchased a Pirate Access Device from White Viper, see Pl.'s Compl., ¶ 7, and that the raid which led to the discovery of the defendant's alleged violation took place on May 25, 2001. Therefore, because the limitations period expired on May 25, 2003, two years following the raid, defendant Terrance Hauck is entitled to judgment as a matter of law dismissing with prejudice Count II of the Complaint filed in Civil Action No. 03-2561.
The same analysis applies with the Section 2520 claims against the defendants in Civil Action Nos. 03-2566 and 03-2567. In DIRECTV, Inc. v. Winfield Sardi, II, et al., Civil Action No. 03-2566, plaintiff alleges that defendants Winfield Sardi, II, and Wade Fernandez both allegedly purchased Pirate Access Devices from White Viper Technologies and the raid which led to the discovery of those defendant's alleged violations took place on May 25, 2001. Pl.'s Compl., ¶¶ 7, 16, 17. Accordingly, because the two-year limitations period applicable to the claims alleged in Count IV expired at the latest on May 25, 2003, and because the Complaint was not filed until September 11, 2003, defendants Winfield Sardi, II, and Wade Fernandez are entitled to judgment as a matter of law dismissing with prejudice Count II of the Complaint filed in Civil Action No. 03-2566.
In this Complaint, plaintiff does not specifically allege that the May 25, 2001 raid was related to Whiteviper Technologies. However, a review of earlier-filed Complaints reveals that the May 25, 2001 raid was at the mail shipping facility used by several major distributors of Pirate Access Devices, including Whiteviper. See, e.g., Civil Action Nos. 03-1450, 03-1451, and 03-2561. Pl.'s Compl., ¶ 7.
Likewise, similar allegations of a May 25, 2001 raid and a purchase from White Viper Technologies are also made against defendant Michael Given in DIRECTV, Inc. v. Keith Chulick, et al., Civil Action No. 03-2567. Pl.'s Compl., ¶¶ 7, 17. Therefore, as that Complaint also was not filed until September 11, 2003, defendant Michael Given is entitled to judgment as a matter of law dismissing with prejudice Count II of the Complaint filed in Civil Action No. 03-2567.
See note 6.
Plaintiff has dismissed its claims against the two other defendants in Civil Action No. 03-2567, Keith Chulick and Connely Wyatt. (Rec.Docs. 11, 16).
The final Complaint which the Court must consider in these consolidated cases is that filed in DIRECTV, Inc. v. Mona Burke, et al., Civil Action No. 03-2563. An examination of the Complaint reveals the following: (i) defendant Mona Burke purchased devices from Whiteviper in May and July of 2000, see Pl.'s Compl., ¶ 23(a), (b); (ii) defendant Thomas Burke purchased devices from Whiteviper in November of 2000, see Pl.'s Compl., ¶ 23(c); (iii) defendant Thomas Burke purchased devices from Viper Plus between December of 2001 and March of 2002, see Pl.'s Compl., ¶ 23(d), (e) and (f); and (iv) defendant Anthony Dingeman purchased devices from Whiteviper in July of 2000, see Pl.'s Compl., ¶ 25. Accordingly, only two raids are relevant to identifying the accrual dates here. First, as to the alleged violations arising out of Whiteviper purchases, the limitations period commenced at the latest on May 25, 2001, the date on which plaintiff executed writs of seizure at the mail shipping facility used by several major sources of pirate technologies including White Viper Technologies. Second, as to the alleged violations arising out of Viper Plus purchases, the limitations period commenced at the latest on March 6, 2003, the date on which plaintiff executed a civil seizure upon Viper Plus. Pl.'s Compl., ¶ 9. Accordingly, because the Complaint was not filed until September 11, 2003, months after the time period expired relative to the White Viper purchases and the May 25, 2001 raid, the claims related to White Viper purchases by the defendants are time-barred. However, because the Complaint was filed within two years of the raid upon Viper Plus, plaintiff's claims against Thomas Burke related to his alleged purchases from Viper-Plus are not time-barred. Therefore, defendants Mona Burke and Anthony Dingeman are entitled to judgment as a matter of law dismissing with prejudice Count II of the Complaint filed in Civil Action No. 03-2563. With respect to defendant Thomas Burke, the Court grants summary judgment in defendant's favor insofar as defendant seeks dismissal with prejudice of Count II as it relates to the alleged White Viper purchases; the Court denies summary judgment with respect to the alleged Viper Plus purchases.
Plaintiff has dismissed its claims against the two other defendants in Civil Action No. 03-2563, Gary Cooper and Brent Sherman. (Rec.Docs. 11, 16).
See note 6.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that1. Defendants' motion is DENIED IN PART, insofar as defendants in the consolidated actions seek dismissal of Counts I and IV of plaintiff's Complaints;
2. Defendants' motion is DENIED IN PART, insofar as the following defendants seek dismissal of Count II of plaintiff's Complaints:
a. All named defendants in Civil Action No. 03-1450; Civil Action No. 03-1451; Civil Action No. 03-1452; Civil Action No. 03-1453; Civil Action No. 03-1454; Civil Action No. 03-1455; Civil Action No. 03-1456; Civil Action No. 03-1457; Civil Action No. 03-1458; Civil Action No. 03-1459; Civil Action No. 03-1460; Civil Action No. 03-1461; Civil Action No. 03-1462; Civil Action No. 03-1463; Civil Action No. 03-1464; Civil Action No. 03-1465; Civil Action No. 03-1466; Civil Action No. 03-1467; Civil Action No. 03-1468; Civil Action No. 03-1469; Civil Action No. 03-1470; Civil Action No. 03-1471; Civil Action No. 03-1472; Civil Action No. 03-1473; Civil Action No. 03-1475; Civil Action No. 03-1486; Civil Action No. 03-1487; Civil Action No. 03-2564; and
b. Defendant Thomas Burke with respect to the alleged violations resulting from his purchases from Viper Plus, Civil Action No. 03-2563.
3. Defendants' motion is GRANTED IN PART, insofar as the following defendants seek dismissal with prejudice of Count II of plaintiff's Complaints:
a. Defendant Terrance Hauck, Civil Action No. 03-2561;
b. Defendants Winfield Sardi, II, Civil Action No. 03-2566;
c. Defendant Wade Fernandez, Civil Action No. 03-2566;
d. Defendant Michael Given, Civil Action No. 03-2567;
e. Defendant Mona Burke, Civil Action No. 03-2563;
f. Defendant Anthony Dingeman, Civil Action No. 03-2563; and
g. Defendant Thomas Burke with respect to the alleged violations resulting from his purchases from White Viper Technologies, Civil Action No. 03-2563.