Opinion
Civil Action No. 02-5576 (FLW)
October 8, 2003
MEMORANDUM OPINION
Plaintiff DirecTV, Inc. ("DirecTV") brings this motion, pursuant to Local Civil Rule 7.1(g), for partial reconsideration of the Court's Memorandum Opinion and Order entered on September 11, 2003. Plaintiff asks this Court to reconsider its holding that as a matter of law damages are not recoverable from one who violates 18 U.S.C. § 2512 of the Electronic Communications Privacy Act ("ECPA") and its state law counterpart, N.J.S.A. 2A:156A-5. Plaintiff also seeks reconsideration of the Court's finding that the factors listed in Goodspeed v. Harman, 39 F. Supp.2d 787 (N.D. Tex. 1999) would be relevant in the event a damages hearing were held. For the reasons that follow, plaintiffs motion for reconsideration is granted, and portions of the Court's September 11, 2003 Memorandum Opinion and Order are vacated and amended, in accordance with the discussion below.
I. STANDARD FOR RECONSIDERATION
In the District of New Jersey, Local Civil Rule 7.1(g) allows a party to seek reconsideration of a court's decision if there are "matters or controlling decisions which counsel believes the Judge or Magistrate Judge has overlooked." L. Civ. R. 7.1(g) (quoted in Interfaith Community Organization v. Honeywell International, Inc., 215 F. Supp.2d 482, 507 n. 12 (D. N.J. 2002). A motion under Local Rule 7.1(g) may be granted if: "(1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice." Interfaith Community, 215 F. Supp.2d at 507 (citations omitted). The court will only entertain such a motion if the matters overlooked might reasonably have resulted in a different conclusion. Bowers v. National Collegiate Athletic Association, Act, Inc., NCAA, 130 F. Supp.2d 610, 613 (D. N.J. 2001).
II. 18 U.S.C. § 2512 AND N.J.S.A. 2A:156A-5
As this Court found in its Memorandum Opinion of September 11, 2003 ("Dougherty I"), and as plaintiff agrees in its motion for reconsideration, the New Jersey Wiretapping Act was closely modeled after and made to substantially parallel the Federal Wiretapping Act, i.e. the ECPA. State v. Minter, 116 N.J. 269, 275 (1989). Therefore, the following analysis of 18 U.S.C. § 2512 is equally applicable to its state law counterpart, N.J.S.A. 2A:156A-5.
In Dougherty I, this Court followed the Fourth Circuit Court of Appeals in Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985), in holding that the ECPA does not provide a private cause of action against those who possess an intercepting device in violation of § 2512. The ECPA provides for civil liability in § 2520(a):
Except as provided in section 251 1(2)(a)(ii), any 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 or entity . . . which engaged in that violation such relief as may be appropriate.Flowers reasoned that the plain language of § 2520(a) does not provide a civil remedy against one who merely possesses an intercepting device, since only those "whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation" of the Act may seek civil relief.Flowers, 773 F.2d at 588-89. Many district courts have agreed with Flowers. DirecTV, Inc. v. Childers, ___ F. Supp.2d ___, 2003 WL 21782295, *2 (M.D. Ala. July 29, 2003);DirecTV, Inc. v. Cardona, ___ F. Supp.2d ___, 2003 WL 21910578, *7 (M.D. FL. July 8, 2003); DirecTV, Inc. v. Amato, ___ F. Supp.2d ___, 2003 WL 21537206, *3 (E.D. Va. June 20, 2003); AGES Group. L.P. v. Raytheon Aircraft Co., Inc., 22 F. Supp.2d 1310, 1315 (M.D. Ala. 1998). As noted in Dougherty I, other district courts have disagreed with Flowers.DirecTV, Inc. v. EO Stuff. Inc., 207 F. Supp.2d 1077, 1084 (C.D. CA 2002); Oceanic Cablevision. Inc. v. M.D. Electronics, 771 F. Supp. 1019, 1028 (D. Neb. 1991).
In its motion for reconsideration, plaintiff calls the Court's attention to numerous recent decisions (unpublished), in which other district courts have implicitly or explicitly rejected Flowers by finding that § 2520(a) does subject possessors of intercepting devices to civil liability. DirecTV, Inc. v. Cino, Case No. 03-CV-2430(MLC) (D. N.J. Order, September 17, 2003); DirecTV, Inc. v. Crothers, Case No. 03-CV-2432 (MLC) (D. N.J. Order, September 17, 2003); DirecTV, Inc. v. Gatsiolis, Case No. 03 C 3534 (N.D. Ill. August 27, 2003); DirecTV, Inc. v. Karpinsky, Case No. 02-CV-73929 (E.D. Mich. July 31, 2003); DirecTV, Inc. v. Megar, Case No. 03-20247-CIV-MARTINEZ (S.D. Fla. July 2, 2003); DirecTV. Inc. v. Diaz, Case No. 6:03-cv-232-Orl-31JGG (M.D. Fla. June 27, 2003); DirecTV, Inc. v. Gibson, Case No. 3:03-cv-356-J-16TEM (M.D. Fla. June 27, 2003); DirecTV, Inc. v. Gattone, Case No. 3:03-cv-398-J-16HTS (M.D. Fla. June 27, 2003); DirecTV, Inc. v. Drury, Case No. 8:03-CIV-850-T-17-TGW (M.D. Fla. June 26, 2003);DirecTV, Inc. v. LaAndy, Case No. H-03-0836 (S.D. Tex. June 17, 2003); DirecTV, Inc. v. Gonzalez, Case No. 03-80376-CIV-HURLEY (S.D. Fla. May 25, 2003); DirecTV, Inc. v. Garcia, Case No. 03-20452 (S.D. Fla. May 21, 2003); DirecTV, Inc. v. Calamanco, Case No. C 024102-MWB (N.D. Iowa Jan. 21, 2003).
Plaintiff has adequately shown that the recently developed majority view is that § 2520(a) does allow for the recovery of damages against one who possesses an intercepting device. Such a suit may be brought by "any person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter." 18 U.S.C. § 2520(a). Thus, the quoted phrase confers standing on plaintiffs, rather than limits the potential class of defendants.Gatsiolis, Case No. 03 C 3534 at p. 4. Anyone who violates a provision of the ECPA is a potential defendant. Id. The only exception to civil liability is specifically referenced in § 2520(a): providers of wire or electronic communication may furnish information to law enforcement officials without being subject to liability, "as provided in section 251 1(2)(a)(ii)." 18 U.S.C. § 2520(a). In that connection, plaintiff presents a convincing argument in its pending motion, that if Congress had intended to exempt from liability those who violated § 2512, it would have specifically listed that exception in § 2520(a), along with the exception for § 2511(2)(a)(ii).
Ordinarily, motions for reconsideration are "not an opportunity to argue what could have been, but was not, argued in the original set of moving . . . papers." Bowers, 130 F. Supp.2d at 613. Plaintiffs argument would have been better placed in its initial set of moving papers.
Thus, on reconsideration, it appears that the majority position, and the better view, is that the ECPA allows for recovery of civil damages against one who possesses an intercepting device in violation of § 2512. By extension, the same holds true for violation of the analogous provision of the state wiretapping act, N.J.S.A. 2A:156A-5. See Minter, 116 N.J. at 275. Any findings to the contrary in Dougherty I shall be vacated.
III. EVIDENTIARY HEARING
In Dougherty I, this Court directed plaintiff to offer evidence at an evidentiary hearing that the devices purchased by defendant are primarily useful for the surreptitious interception of satellite broadcasting. Plaintiff has attached to its motion for reconsideration two cases addressing the primarily illicit function of a Bootloader, one of the devices purchased by defendant. DirecTV, Inc. v. Trone, Case No. CV 02-5194 PA, at 3 n. 3 (RCx) (C.D. Ca. February 10, 2003) (though defendant argued that Bootloaders could be used legitimately, the court found that "[t]here is no evidence before the Court that Bootloaders perform any lawful function."); DirecTV, Inc. v. DiSalvatore, Case No. 5:02CV00706, at 9 n. 2 (N.D. Ohio May 21, 2003) (relying on an expert report submitted by DirecTV in finding that Bootloaders are designed for illicit use). Plaintiff has thereby met its burden of showing that Bootloaders are generally used for the illegal interception of satellite transmissions. At the evidentiary hearing, plaintiff shall be held to the same burden with respect to the other devices purchased by defendant, a Viper Programmer and two SU2 ATMELs.
IV. DAMAGES HEARING
This Opinion has little practical effect on the issue of damages. As explained in Dougherty I for violations of more than one provision of the ECPA, plaintiff is entitled to only one statutory damages award of $10,000. Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 716 (1st Cir. 1999) ("multiple recovery of the liquidated damage amount, based on different violation types, is not available[.]");accord Smoot v. United Transportation Union, 246 F.3d 633, 646 (6th Cir. 2001). Thus, plaintiff may seek damages for violation of either § 2511 or § 2512. Similarly, with respect to the state wiretapping act, plaintiff may seek statutory damages of $1,000 for violation of either N.J.S.A. 2A:156A-3 or N.J.S.A. 2A:156A-5. However, plaintiff may receive separate damages awards for each device purchased by defendant, if plaintiff can show that each of the four devices at issue is primarily used for illicit interception of satellite transmissions.
As discussed in Dougherty I under the ECPA, plaintiff may be awarded statutory damages of $10,000, or nothing, at the Court's discretion. E.g., Morford v. City of Omaha, 98 F.3d 398, 400 (8th Cir. 1996). Under the state act, however, statutory damages of $1,000 are mandatory.
In Dougherty I, this Court advised plaintiff to be prepared to discuss at the damages hearing the six factors listed byGoodspeed v. Harman, 39 F. Supp.2d 787, 791 (N.D. Tex. 1999), "to the extent this information is available." Dougherty I at 14. Plaintiff asserts in its motion for reconsideration that theGoodspeed factors are more applicable to a case at the summary judgment stage, after discovery has been taken, than at the default judgment stage. Plaintiffs argument is well-taken. The Court will not reference the Goodspeed factors at the damages hearing.
V. CONCLUSION
Plaintiffs motion for reconsideration is granted. On reconsideration, portions of this Court's Memorandum Opinion and Order, entered September 11, 2003, are vacated and amended in accordance with this Memorandum Opinion.
ORDER
This matter having been opened to the Court by Marc E. Wolin, Esq., counsel for plaintiff, DirecTV, Inc., seeking reconsideration of this Court's Memorandum Opinion and Order entered September 11, 2003, pursuant to Local Civil Rule 7.1(g); the Court having reviewed the moving papers, there having been no opposition filed; this matter being decided pursuant to Fed.R.Civ.P. 78; for the reasons set forth in the Memorandum Opinion filed on this date; and for good cause shown,ORDERED that portions of the Court's Memorandum Opinion and Order entered September 11, 2003 shall be vacated and amended in accordance with the accompanying Memorandum Opinion; and it is further
ORDERED that there shall be an evidentiary hearing held on November 23, 2003, at 10 a.m., in Courtroom 3 A of the Mitchell H. Cohen U.S. Courthouse, 1 John F. Gerry Plaza, Camden, N.J. 08101; and it is further
ORDERED that if plaintiff makes the requisite showing at the evidentiary hearing, a hearing on damages shall be held immediately thereafter; and it is further
ORDERED that plaintiff shall provide defendant David Whalen notice of these hearings upon receipt of this Order.