Opinion
Case No. 03-C-1103.
July 8, 2004
ORDER
On May 23, 2003, plaintiff DirecTV, Inc. filed an action against defendant David Floryance raising three claims. The First Claim alleges Floryance violated 47 U.S.C. § 605(a) of the Federal Communications Act of 1934. The Second Claim alleges Floryance violated 18 U.S.C. § 2511(1)(a) of the Omnibus Crime Control Act of 1968, as amended by the Electronic Communications Privacy Act of 1986 and the Communications Assistance for Law Enforcement Act of 1994 (the "Wiretap Act"). The Third Claim alleges Floryance violated 18 U.S.C. § 2512(1)(b) of the Wiretap Act.
Floryance filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) arguing DirecTV's pleadings in support of its Second and Third Claims are insufficient to prove it is entitled to recovery. DirecTV counters the pleadings are sufficient to show it is entitled to recovery under 18 U.S.C. § 2520(a).
PLEADINGS IN SUPPORT OF DIRECTV'S SECOND AND THIRD CLAIMS
In support of its Second Claim, DirecTV alleges it is a corporation incorporated under the laws of the State of California and Floryance is a resident of New Berlin, Wisconsin. (Compl. ¶¶ 6, 16.) It further alleges Floryance "intentionally intercepted, endeavored to intercept, or procured other persons to intercept or endeavor to intercept, DIRECTV's satellite transmission of television programming, in violation of 18 U.S.C. § 2511(1)(a)." (Compl. ¶ 25.)
In support of its Third Claim, DirecTV realleges the allegations in support of its Second Claim, and it further alleges Floryance
. . . . possessed and used Pirate Access Devices, knowing or having reason to know that the design of such devices render them primarily useful for the purpose of surreptitious interception of DIRECTV's satellite transmissions of television programming, and that such devices, or any components thereof, have been or will be sent through the mail or transported in interstate or foreign commerce, in violation of 18 U.S.C. § 2512(1)(b) . . . [and] knew or should have known that possessing Pirate Access Devices was and is illegal and prohibited.
(Compl. ¶¶ 29, 31.)
JURISDICTION, VENUE, AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1331. Venue is proper in the Eastern District of Wisconsin pursuant to 28 U.S.C. § 1391(b). The court reviews a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) the same way it reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996). When the court addresses motions pursuant to Rules 12(b)(6), it looks only at the pleadings and accepts the facts in the complaint as true. See Thompson v. Ill. Dep't of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002). The court may grant a judgment on the pleadings against the non-moving party when "it appears beyond a doubt that the [non-moving party] cannot prove any facts to support a claim for relief and the moving party demonstrates that there are no material issues of fact to be resolved." Brunt v. Serv. Employees Int'l Union, 284 F.3d 715, 718-19 (7th Cir. 2002). The court "is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts" when deciding whether to grant judgment on the pleadings. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976).DISCUSSION
DirecTV argues the pleadings in support of its Second and Third Claims, when taken as true, are sufficient to prove it is entitled to recover from Floryance pursuant to 18 U.S.C. § 2520(a), which is a provision in the Wiretap Act that permits a plaintiff to recover from a defendant in a civil action. Section 2520(a) provides in its entirety:
Except as provided in section 2511(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, other than the United States, which engaged in that violation such relief as may be appropriate.18 U.S.C. § 2520(a). As the court reads it, § 2520(a) requires the plaintiff to prove four elements in order to recover from a defendant in a civil action. The first element the plaintiff must prove that it is a "person" within the meaning of § 2520(a). The word "person" is defined as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation." 18 U.S.C. § 2510(6).
The second element the plaintiff must prove is that its "wire, oral, or electronic communication" has been "intercepted, disclosed, or intentionally used in violation of this chapter" within the meaning of § 2520(a). The words "this chapter" undoubtedly refer to the subsections of Chapter 119 ( i.e., 18 U.S.C. §§ 2510- 2522). It is worth emphasizing, however, a plaintiff does not satisfy the second element by proving there has been any violation of Chapter 119. The language of § 2520(a) is far more specific and definite. Rather, the plaintiff does not satisfy the second element unless it proves there has been a violation of Chapter 119 involving the interception, disclosure, or intentional use of its wire, oral, or electronic communication. This is the only reasonable interpretation of the language in § 2520(a), and to the court's knowledge, § 2520(a) is uniformly interpreted in this manner. See, e.g. DirecTV, Inc. v. Tasche, 2004 U.S. Dist. LEXIS 8188, *14 (E.D. Wis. May 4, 2004) (a plaintiff may bring a civil action under § 2520(a)"if its communication has been `intercepted, disclosed, or intentionally used in violation of this chapter'"); DirecTV, Inc. v. Dillon, 2004 U.S. Dist. LEXIS 7229, at *7 (N.D. Ill. April 27, 2004) (stating only those "whose communication has been `intercepted, disclosed, or intentionally used' may bring a suit" under § 2520(a)); DirecTV v. Maraffino, 2004 U.S. LEXIS 799, *8 (N.D. Ill. Jan. 23, 2004) (stating "`[s]ection 2520(a) authorizes relief only for a person `whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter'" (quoting DirecTV, Inc. v. Delaney, 2003 U.S. Dist. LEXIS 24262, at *6 (N.D. Ill. Nov. 20, 2003)).
The third element the plaintiff must prove is that the defendant is a "person or entity other than the United States" within the meaning of § 2520(a). The word "person" is defined in the same manner as described above, and although the word "entity" does not appear to have a statutory definition, the court need not define it for purposes of resolving the matter before it.
The fourth element the plaintiff must prove is that the defendant "engaged in that violation" within the meaning of § 2520(a). Given the textual structure of § 2520(a), the words "that violation" plainly refer the violation of Chapter 119 referenced earlier in § 2520(a), which is a violation of Chapter 119 involving the interception, disclosure, or intentional use of its wire, oral, or electronic communication. Again, it is worth emphasizing that a plaintiff cannot satisfy the fourth element by merely proving the defendant engaged in any sort of violation of Chapter 119 because, again, the language in § 2520(a) is far more specific and definite. Rather, the plaintiff can only satisfy the fourth element by proving the defendant engaged in a violation of Chapter 119 involving the interception, disclosure, or intentional use of its wire, oral, or electronic communication. This interpretation reflects the plain and ordinary meaning of the language used in § 2520(a), and it has been the predominant interpretation adhered to by the federal courts. See, e.g., Maraffino, 2004 U.S. Dist. LEXIS 799; DirecTV, Inc. v. Beecher, 296 F. Supp. 2d 937, 940-43 (S.D. Ind. 2003); DirecTV v. Westendorf, 2003 U.S. Dist. LEXIS 16236 (N.D. Ill. Sept. 16, 2003); DirecTV, Inc. v. Bertram, 296 F. Supp. 2d 1021, 1025 (D. Minn. 2003); DirecTV, Inc. v. Cardona, 275 F. Supp. 2d 1357 (M.D. Fla. 2003); DirecTV, Inc. v. Amato, 269 F. Supp. 2d 688 (E.D. Va. 2003).
However, there are a growing number of federal courts, even one from this district, that hold a plaintiff proves a defendant "engaged in that violation" within the meaning of § 2520(a), and therefore satisfies the fourth element, when he proves the defendant engaged in any violation of Chapter 119. See, e.g., Tasche, 2004 U.S. Dist. LEXIS 8188; Dillon, 2004 U.S. Dist. LEXIS 7229; DirecTV, Inc. v. Dyhaug, 2004 U.S. Dist. LEXIS 5008 (N.D. Ill. March 25, 2004); DirecTV, Inc. v. Gatiolis, 2003 U.S. Dist. LEXIS 15801 (N.D. Ill. Aug. 27, 2003); DirecTV, Inc. v. Dougherty, 2003 U.S. Dist. LEXIS 23654 (D.N.J. Oct. 8, 2003); DirecTV v. Kitzmiller, 2004 U.S. Dist. LEXIS 5263 (E.D. Penn. March 31, 2004). These courts interpret the words "that violation" as referring solely to the phrase "violation of this chapter" and not the longer phrase "is intercepted, disclosed, or intentionally used in violation of this chapter." These courts reason the phrase "is intercepted, disclosed, or intentionally used" should be read in conjunction with the phrase "in violation of this chapter" only for purposes of determining the class of potential plaintiffs that may bring a civil action under § 2520(a), and they reason the phrase "is intercepted, disclosed, or intentionally used" should not be read in conjunction with the phrase "in violation of this chapter" for the purpose of determining the class of potential defendants that "engaged in that violation." See, e.g., Dillon, 2004 U.S. LEXIS 7229, at *7 ("We interpret the language of the statute as permitting those whose communication has been `intercepted, disclosed, or intentionally used' to bring suit, rather than as limiting the class of potential defendants"); Dougherty, 2003 U.S. Dist. LEXIS, at *6 (stating the phrase "`any person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter' . . . confers standing on plaintiffs, rather than limits the potential class of defendants"). As such, these courts interpret the words "that violation" as referring solely to the phrase "violation of this chapter," and they accordingly conclude a defendant has "engaged in that violation" within the meaning of § 2520(a) when he has engaged in any violation of Chapter 119. See, e.g., Tache, 2004 U.S. Dist. LEXIS 8188, at *14-15 (interpreting the words "that violation" as referring solely to the phrase "violation of this chapter").
The court finds this alternative interpretation unpersuasive because it requires an unnatural use of the ordinary language in § 2520(a), lacks coherence, and is founded on the unsupported premise that when Congress included the phrase "is intercepted, disclosed, or intentionally used" in § 2520(a), it intended the phrase to limit the class of potential plaintiffs but not the class of potential defendants.
First, it is an unnatural use of ordinary language to interpret the words "that violation" as referring to any violation of Chapter 119 rather than a specific and definite violation of Chapter 119. The English word "that" is defined as "being the . . . thing . . . specified" and a "definite article." Webster's Ninth New Collegiate Dictionary, at 1221(1988). Thus, when the words "that" and "violation" are paired together, they most naturally refer to a specific and definite violation. Given the sentence structure of § 2520(a), the words "that violation" most naturally refer to the specific and definite violation of Chapter 119 mentioned earlier in § 2520(a), which involves the interception, disclosure, or intentional use of a person's wire, oral, or electronic communication; they do not naturally refer to any violation of Chapter 119.
Second, it is an unnatural use of ordinary language to not read the phrase "in violation of this chapter" in conjunction with the phrase "is intercepted, disclosed, or intentionally used." As a matter of grammar, the phrase "in violation of this chapter" is an adverb prepositional phrase, and its sole purpose is to modify the verbs "is intercepted, disclosed, or intentionally used." Its function is to give the reader of § 2520(a) an understanding of what sort of interception, disclosure, or intentional use is proscribed by the statute, and like most prepositional phrases, it does not have a meaning independent from the verb or verbs it modifies. Thus, it is unnatural to interpret the words "that violation" as referring solely to the phrase "violation of this chapter" rather than the longer phrase "is intercepted, disclosed, or intentionally used in violation of this chapter" when determining whether the defendant "engaged in that violation" within the meaning of § 2520(a).
To be precise, the phrase "in violation of this chapter" consists of two prepositional phrases. The words "in violation" modify the verbs "is intercepted, disclosed, or intentionally used," and the words "of this chapter" modify the word "violation."
Third, it is incoherent to read the phrase "in violation of this chapter" in conjunction with the phrase "is intercepted, disclosed, or intentionally used" for purposes of determining what a plaintiff must prove to satisfy the second element of § 2520(a) but not read the two phrases in conjunction with each other when determining what a plaintiff must prove to satisfy the fourth element because doing so requires the same language in § 2520(a) to be read differently. To illustrate, the courts that adhere to this alternative interpretation uniformly hold a plaintiff cannot bring a civil action under § 2520(a) unless he proves there has been a violation of Chapter 119 involving the interception, disclosure, or intentional use of its wire, oral, or electronic communication. Implicit in this holding is the determination that the phrase "in violation of this chapter" should be read in conjunction with the phrase "is intercepted, disclosed, or intentionally used." Nonetheless, these courts also hold a plaintiff, once it has shown there has been a violation of Chapter 119 involving the interception, disclosure, or intentional use of its wire, oral, or electronic communication, can bring a civil action against a defendant who engages in any violation of Chapter 119. Implicit in this determination is that the phrase "in violation of this chapter" should not be read in conjunction with the phrase "is intercepted, disclosed, or intentionally used." Thus, this alternative interpretation requires that the same language in § 2520(a) be interpreted inconsistently, and as such, lacks coherence.
Finally, there is no support for the conclusion that when Congress included the phrase "is intercepted, disclosed, or intentionally used" in § 2520(a), it intended for the phrase to limit the class of potential plaintiffs but not the class of potential defendants. Some courts reason if Congress had intended the phrase "is intercepted, disclosed, or intentionally used" to limit the class of potential defendants, it would have made its intention clearer. See, e.g., Kitzmiller, 2004 U.S. Dist. LEXIS 5263, at *14 ("if Congress had intended to exempt from civil liability those who violated § 2512, it would have specifically listed that exemption in § 2520(a)"); Dougherty, 2003 U.S. Dist. LEXIS 23654, at *6-7 (same reasoning). The court cannot accept this line of reasoning because Congress was sufficiently clear about its intention to limit the class of potential defendants in this manner when it adopted the language in § 2520(a) stating "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter" may bring a civil action against a defendant when he "engaged in that violation."
At least one court has reasoned Congress did not intend for the phrase "is intercepted, disclosed, or intentionally used" to limit the class of potential defendants because it wanted to give plaintiffs the right to bring civil actions against defendants for any violation of Chapter 119 and thereby "decrease the burden on already overextended federal prosecutors to pursue criminal convictions under this statute" and give "potential plaintiffs . . . incentives to initiate litigation to protect their private interests." Gatsiolis, 2003 U.S. Dist. LEXIS 15801, at *7. To be sure, Congress would have been on solid ground if it had intended to give plaintiffs the right to sue defendants for any violation of Chapter 119 for this reason, but the court simply cannot conclude Congress had this intention when it adopted the language in § 2520(a). First, the plain language in § 2520(a) strongly suggests Congress intended for the phrase "is intercepted, disclosed, or intentionally used" to limit the class of potential defendants and make them liable in a civil action only when they violated Chapter 119 by intercepting, disclosing, or intentionally using the plaintiff's communications. Second, there are solid reasons for why Congress would have intended to limit the class of potential defendants in this manner. Judge David Hamilton explained it best in his decision in DirecTV, Inc. v. Beecher:
Congress did not write Section 2520 to authorize civil actions against any person who violated any provision of the federal wiretap statute. Instead, it wrote Section 2520 to authorize relief against a person who engaged in "that violation," namely an interception, disclosure, or intentional use of a protected communication. Such violations, if proved, arguably cause the greatest and most direct harm to a victim. And recall that if a civil action is authorized, even without proof of actual loss to the victim or profit to the wrongdoer, the damages can be the greater of $100 a day or $10,000.
For a case of mere possession of an unlawful device, Congress might well have concluded that making such stringent penalties available to the private plaintiff would be excessive. The elaborate remedial provisions of Section 2520 show that Congress paid close attention to issues of enforcement of the federal wiretap statutes. Those choices must be respected. The interpretation of Section 2520(a) adopted by this court and others requiring proof that the defendant participated in actual interception, disclosure, and/or intentional use reflects a view that Congress chose a more complex mixture of criminal and civil enforcement, and public and private remedies, for different types of violations of the federal wiretap statutes.296 F. Supp. 2d at 942-43; see also Westendorf, 2003 U.S. Dist. LEXIS 16236, at *4 (setting forth similar analysis). For the foregoing reasons, the court cannot adhere to the alternative interpretation adopted by a growing number of federal courts and conclude a defendant has "engaged in that violation" within the meaning of § 2520(a) when he engages in any violation of Chapter 119. Rather, the court holds a defendant has "engaged in that violation" only when he engaged in a violation of Chapter 119 involving the interception, disclosure, or intentional use of a plaintiff's wire, oral, or electronic communication. With this background in mind, the court will consider whether DirecTV's pleadings in support of its Second and Third Claims, when taken as true, prove it is entitled to recover from Floryance in a civil action under § 2520(a).
First, the court will consider whether the pleadings in support of DirecTV's Second Claim, if taken as true, prove the four elements of § 2520(a). Here, the court has little trouble concluding they do. The allegations satisfy the first element because DirecTV alleges it is a corporation, and therefore a person, within the meaning of § 2520(a). The allegations satisfy the second element because DirecTV alleges its electronic communications have been intercepted in violation of Chapter 119. The allegations satisfy the third element because DirecTV alleges Floryance is an individual, and therefore a person, within the meaning of § 2520(a). Finally, the allegations satisfy the fourth element because DirecTV alleges Floryance engaged in a violation of Chapter 119 involving the interception of its communications. Specifically, DirecTV alleges Floryance engaged in a violation of § 2511(1)(a), which is part of Chapter 119, by "intentionally intercept[ing] and endeavor[ing] to intercept, or procur[ing] to intercept or endeavor to intercept" its communications. (Compl. ¶ 25.) Accordingly, Floryance's motion for judgment on the pleadings will be denied as it relates to DirecTV's Second Claim.
Section 2511(1)(a) states in its entirety:
Except as otherwise specifically provided in this chapter any person who —
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication. . . .
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).Id.
Floryance argues DirecTV's pleadings in support of its Second Claim would not have satisfied the fourth element of § 2520(a) if it had merely alleged he "endeavored to intercept, or procured other persons to intercept or endeavor to intercept" its electronic communications in violation of § 2511(1)(a). This argument is beside the point. The fact is DirecTV alleged Floryance "intentionally intercepted" its communications in violation of § 2511(1)(a), and that allegation is sufficient to forestall the entry of judgment against DirecTV on its Second Claim. To the extent Floryance has a dispute with fewer than all the pleadings in support of DirecTV's Second Claim, he might wish to proceed under Fed.R.Civ.P. 12(f) and move the court to strike those pleadings that are "redundant, immaterial, impertinent, or scandalous." Fed.R.Civ.P. 12(f).
Second, the court will consider whether the pleadings in support of DirecTV's Third Claim, if taken as true, prove the four elements of § 2520(a). Here, the court concludes they do not. Specifically, the allegations do not satisfy the fourth element because DirecTV does not allege Floryance engaged in a violation of Chapter 119 involving the interception, disclosure, or intentional use of its communications. Rather, DirecTV alleges Floryance engaged in a violation of § 2512(1)(b), which by its very terms does not involve the interception, disclosure, or intentional use of any such communications. A plain reading of § 2512(1)(b) reveals that it only involves the construction, possession, or sale of a pirate access device with knowledge that the device will or has traveled through interstate commerce. Section 2512(1)(b) states in its entirety:
Except as otherwise specifically provided in this chapter, any person who intentionally —
. . . .
(b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce . . .
shall be fined under this title or imprisoned not more than five years, or both.18 U.S.C. § 2512(1)(b). As such, DirecTV's pleadings in support of its Third Claim are insufficient to prove it is entitled to recover from Floryance under § 2520(a), and Floryance's motion for judgment on the pleadings must therefore be granted as it relates to DirecTV's Third Claim.
Accordingly,
IT IS ORDERED that Floryance's motion for judgment on the pleadings (Docket #11) be and the same is hereby DENIED in part and GRANTED in part consistent with the language of this order; and IT IS FURTHER ORDERED that DirecTV's Third Claim alleging violation of § 2512(1)(b) be and the same is hereby DISMISSED with prejudice.