Opinion
CIVIL ACTION NO. 04-253 SECTION "N" (1).
November 30, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss or, in the Alternative, for More Definite Statement, filed by defendant David Garland. (Rec.Doc. No. 18). For the reasons that follow, defendant's motion is DENIED.
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 July 19, 2004, defendant David Garland filed the instant motion, in which he seeks dismissal of this action pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, a more definite statement pursuant to Fed.R.Civ.P. 12(e). DIRECTV opposes defendant's motion. On August 2, 2004, DIRECTV filed a Motion for Voluntary Partial Dismissal of the claims brought against David Garland under 18 U.S.C. § 2512 and of the claims brought for civil conversion under Louisiana law. The Court granted DIRECTV's motion on August 4, 2004.
II. LAW AND ANALYSIS
A. Rule 12(b)(6) — Failure to State a Claim
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." To satisfy this requirement, the statement must provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S. Ct. 992, 998 (2002) (internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 2187 (2002) (the elements of the plaintiff's claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").
Given this simplified notice pleading standard, Rule 12(b)(6) motions to dismiss are "viewed with disfavor and [are] rarely granted." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal citations omitted). Further, a Rule 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at 998 (internal citations omitted); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999 ("dismissal will not be affirmed if the allegations support relief on any possible theory") (internal citations omitted). In making this determination, the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279 (1986). "All questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
The defendant's general argument with respect to all of DIRECTV's claims is that DIRECTV has only recited the statutes which form the bases of its claims against David Garland and that the Complaint provides no factual allegations to which Garland might respond. The defendant has also presented arguments particular to each count of which he seeks dismissal.
1. Count One — 47 U.S.C. §§ 605(e)(3)(C)
In Count One of its Complaint, plaintiff DIRECTV seeks damages for violations of 47 U.S.C. § 605, which prohibits the illegal interception of radio transmissions. A person violates § 605 by "receiving," "assisting in receiving" or "intercepting" radio transmissions without proper authorization. 47 U.S.C. § 605(a). Accordingly, to prevail on the merits of Count One of the Complaint, DIRECTV must prove that the defendant David Garland "received, assisted in receiving or intercepted" plaintiff's satellite transmission. See id.
Section 605(e)(3)(A) authorizes any person aggrieved by a violation of § 605(a) to bring a civil action in a federal court. Section 605(e)(3)(C) authorizes the award of damages for violations of § 605(a).
In contending that plaintiff fails to state a claim in Count One, defendant offers three separate arguments. First, defendant argues that the statute cited by DIRECTV in the heading of Count One — 47 U.S.C. § 605(e)(3)(C) — does not create a cause of action. While defendant is technically correct, the Court finds that this argument cannot serve as a ground for dismissal of Count One. A review of the Complaint reveals that DIRECTV has alleged a cause of action for the defendant's violation(s) of § 605(a). Specifically, DIRECTV has alleged that it is "a person aggrieved by [the defendant's] violations of 47 U.S.C. § 605 and is authorized to institute this action against [the defendant] pursuant to 47 U.S.C. § 605(e)(3)(A)," Pl.'s Compl., ¶ 34 (Rec. Doc. No. 1), and further that it is seeking damages pursuant to 47 U.S.C. § 605(e)(3)(C). Pl.'s Compl, Count One, p. 14.
Defendant next argues that DIRECTV cannot assert a cause of action under § 605 (e)(3)(A), as that section applies only to communications received or transmitted "by wire or radio." Defendant also urges this Court to take "judicial notice that satellite programming is not transmitted via 'wire or radio.'" Def.'s Mem., p. 2, n. 1. Defendant's second argument, however, is also without merit. First, defendant has not cited any legal authority supporting this contention. More importantly, defendant's argument is contrary to the caselaw in this area. Indeed, at least one district court has rejected a similar argument made against DIRECTV. See DIRECTV, Inc. v. Kitzmiller, 2004 WL 692230, at *2, n. 3 (E.D.Pa. Mar. 31, 2004) (finding that "§ 605 controls claims of satellite piracy") (citing TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 206-07 (3d Cir. 2001)). See also National Satellite Sports, Inc. v. Eliadis, Inc., 65 F.Supp.2d 662, 665 (N.D. Ohio 1999) (stating that "[s]atellite signals constitute 'radio' signals for purposes of [ 47 U.S.C. § 605").
Finally, defendant argues that DIRECTV fails to allege an essential element of the cause of action authorized by 47 U.S.C. § 605, i.e., that Garland intercepted DIRECTV's signal using a prohibited device. Defendant's motion fails in this regard as a reading of the Complaint reveals that plaintiff has indeed alleged that Garland illegally and without authorization intercepted DIRECTV's satellite signal. Specifically, DIRECTV alleges that "Defendant David Garland . . . purchased one or more Pirate Access Devices from one or more pirate device dealers . . .," including a September 9, 2001 purchase of one "EQ Bootloader" from EQ Stuff. Pl.'s Compl., ¶ 21. DIRECTV further alleges that "[defendant David Garland] effected unauthorized interception and receipt of Satellite programming through the use of illegal satellite decoding devices, or by manipulation of the satellite system . . ., or by other such means which are . . . known only to [the defendant]." Pl.'s Compl., ¶ 32 (emphasis added). The Court therefore concludes that defendant's motion, insofar as he seeks dismissal of Count One of DIRECTV's Complaint for failure to state a claim, must be denied.
2. Count Two — 18 U.S.C. § 2511
Section 2511 provides that a person commits a federal offense when he "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication." 18 U.S.C. § 2511(1)(a). A person also violates the statute when he "intentionally uses, endeavors to use or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication," "intentionally discloses," or "intentionally uses the contents of such communication, knowing or having reason to know that the information was obtained through the interception of electronic communication in violation of this subsection." 18 U.S.C. § 2511(1)(b)-(d). Section 2520 provides a civil remedy for violations of § 2511. It reads in pertinent part: "[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person . . . engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520(a).
The relief available for violations of § 2511 is outlined in § 2520(b). Section 2520(c) provides for the computation of damages.
Defendant first argues that Count Two must also be dismissed, because that statute provides a cause of action for the "interception and disclosure" of electronic communications and DIRECTV has not alleged what communication Garland intercepted and disclosed. Defendant, however, fails to cite any legal authority even suggesting that a plaintiff seeking damages under 18 U.S.C. § 2511 must specifically allege the exact type of communication alleged to have been intercepted and disclosed. This argument is more properly suited for discovery, as discussed below.
Citing United States v. Lande, 968 F.2d 907, 909 (9th Cir. 2002), defendant also contends that the statute does not give DIRECTV the right to sue Garland for allegedly possessing a prohibited device. This argument also must fail as DIRECTV has alleged in Count Two more than just possession —
. . . [Defendant David Garland] intentionally intercepted, endeavored to intercept, or procured other persons to intercept electronic communications from DIRECTV. [Defendant David Garland] further disclosed or endeavored to disclose to others the contents of electronic communications knowing, or having reason to know, that the information was obtained through the interception of electronic communications in violation of 18 U.S.C. § 2511. . . . [Defendant David Garland] further intentionally used or endeavored to use the contents of electronic communication knowing, or having reason to know, that the information was obtained throughout the interception of electronic communications in violation of 18 U.S.C. § 2511.
Pl.'s Compl., ¶ 38 (emphasis added). At this procedural juncture, where the Court reviews only the sufficiency of the allegations, and not the sufficiency of the evidence to support a finding of liability on the merits, the Court concludes that plaintiff's Complaint states a claim pursuant to 18 U.S.C. § 2511. Accordingly, defendant's motion, insofar as he seeks dismissal of Count Two of DIRECTV's Complaint, must be denied.
3. Count Four — 47 U.S.C. § 605(e)(4)
Plaintiff has identified two "Count 4"'s in its Complaint. The first asserts a cause of action under 47 U.S.C. § 605(e)(4), while the second asserts a cause of action for civil conversion under state law. The Court will hereafter refer to the two counts as "Count Four (§ 605(e)(4))" and "Count Four (conversion)."
In Count Four (§ 605(e)(4)) of its Complaint, DIRECTV seeks damages under 47 U.S.C. § 605(e)(4), which provides that anyone who manufactures, assembles, modifies, sells or distributes any electronic device or equipment, "knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct home-to-home satellite services," is subject to penalty.
Section 605(e)(3)(A) authorizes any person aggrieved by a violation of § 605(e)(4) to bring a civil action in a federal court.
Garland argues that this count is subject to dismissal as DIRECTV has provided no factual allegations to which Garland might respond. This argument is without merit. In paragraph 21 of the Complaint, DIRECTV alleges that "[d]efendant David Garland . . . purchased one or more Pirate Access Devices from one or more pirate device dealers . . .," including a September 9, 2001 purchase of one "EQ Bootloader" from EQ Stuff. DIRECTV further alleges, in Count Four, that:
[Defendant David Garland], knowingly, manufactured, assembled, or modified an electronic, mechanical or other device or equipment knowing, or having reason to know, that the device or equipment is used primarily to facilitate unauthorized decryption of Satellite Programming, or direct-to-home satellite services, or is intended for any other prohibited activity. Upon information and belief, [defendant David Garland] actively programmed and reprogrammed DIRECTV Access Cards and designed electronic systems for use in surreptitiously obtaining DIRECTV Satellite Programming. Further, by removing and inserting Pirate Access Devices and/or inserting illegally programmed Access Cards into valid DIRECTV Receivers, [defendant David Garland] engaged in the unlawful assembly and/or modification of devices primarily of assistance in the unauthorized decryption of Satellite Programing.
Pl.'s Compl., ¶ 42. The Court finds that such allegations state a violation of 47 U.S.C. § 605(e)(4), and sufficiently comply with the pleading requirements set forth in Rule 8 of the Federal Rules of Civil Procedure. Accordingly, defendant's motion to dismiss Count Four (§ 605(e)(4)) of the Complaint is denied.
4. Count Four — Civil Conversion
Defendant's motion seeking dismissal of the civil conversion claim is moot as the Court earlier dismissed this cause of action against Garland.
B. Rule 12(e) — More Definite Statement
In his motion, defendant alternatively moves the Court to order that DIRECTV provide a more definite statement of each cause of action alleged in the complaint. First, with respect to Count I, defendant contends that DIRECTV should be ordered to provide a more definite statement regarding the following questions: (1) "What communication did [Garland] allegedly intercept and receive?"; (2) "How did [Garland] use that communication for his own alleged benefit?"; and (3) "What actual damages did DIRECTV allegedly sustain?" Def.'s Mem., p. 2. As to Count II, the defendant seeks a more definite statement regarding the following questions: (1) "What communication was intercepted?"; (2) Who are the 'other persons' whom Garland allegedly 'procured' to intercept communications?"; and (3) "What are the 'profits' that Garland allegedly obtained?" Id., p. 3. Finally, with respect to Count IV ( 47 U.S.C. § 605(e)(4)), a more definite statement is sought with respect to the following particulars: (1) "What device did [Garland] allegedly modify . . . or actively program and reprogram?"; and (2) "What communication did [Garland] allegedly intercept?" Id.
Having reviewed the Complaint, the Court finds that defendant's Rule 12(e) motion for a more definite statement is without merit. As Judge Frank J. Polozola stated in DIRECTV, Inc. v. Angeline Guillory, CA 03-981 (M.D. La. 3/11/04),
A district court will grant a motion for a more definite statement pursuant to Rule 12(e) when the pleading at issue "is so vague or ambiguous that a party cannot reasonably be required to fram a responsive pleading." Fed.R.Civ.P. 12(e). . . . A party, however, may not use a Rule 12(e) motion as a substitute for discovery. Given the liberal pleading standard set forth in Rule 8, Rule 12(e) motions are disfavored.
Just as Judge Polozola found in DIRECTV v. Angeline Guillory, this Court likewise finds that DIRECTV has included specific facts supporting the allegations made in the Complaint to sufficiently comply with the pleading requirements set forth the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a) ("A pleading . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief. . . ."); Fed.R.Civ.P. 8(e)(1) ("Each averment of a pleading shall be simple, concise, and direct"). The Court further finds that the allegations provide sufficient notice of the cause of action brought against defendant and are not "so vague or ambiguous that [the defendant] cannot reasonably be required to frame a responsive pleading." See Fed.R.Civ.P. 12(e). Defendant's alternative motion for a more definite statement is therefore denied. Should the defendant wish to obtain more detailed information from DIRECTV, he may use the various discovery procedures available to him under the Federal Rules of Civil Procedure.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that:1. Defendant's motion to dismiss for failure to state a claim is DENIED;
2. Defendant's alternative motion for more definite statement is DENIED.