Directv, Inc. v. Hart

• Citation: 366 F.Supp.2d 315
• Decision Date: 28 September 2004
• Docket Number: No. 2:03CV30FL2.,2:03CV30FL2.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: DIRECTV, INC., Plaintiff, v. Jay HART, Defendant.

366 F.Supp.2d 315

DIRECTV, INC., Plaintiff, v. Jay HART, Defendant.

No. 2:03CV30FL2.

United States District Court, E.D. North Carolina, Northern Division.

September 28, 2004.

Leslie C. O'Toole, Ellis & Winters, Raleigh, NC, for Directv, Inc., plaintiff.

John D. Leidy, Hornthall Riley Ellis & Maland, Elizabeth City, NC, for Jay Hart, defendant.

ORDER

FLANAGAN, District Judge.

This matter is before the court upon plaintiff's motion to reconsider (DE # 18), filed in the case February 4, 2004, and defendant's motion to dismiss (DE # 25), filed April 14, 2004. Plaintiff responded to defendant's motion in a memorandum filed May 3, 2004. The motions now are ripe for decision.

I. BACKGROUND

Plaintiff, a subscription satellite television service, brought this action against defendant for alleged possession and sale of devices which allowed defendant to access, view and use plaintiff's encrypted satellite programming without authorization or payment. Plaintiff brought a number of claims against defendant, specifically two claims for violations of the Cable Communications Policy Act, 47 U.S.C. §§ 605(e)(4) and 605(e)(3)(C), and two similar claims for violation of the Electronic Communications Privacy Act (hereinafter "ECPA"), 18 U.S.C. §§ 2511 and 2512. Although §§ 2511 and 2512 are criminal statutes, plaintiff asserted that a civil cause of action for violation of those statutes was authorized under 18 U.S.C. § 2520. Plaintiff subsequently amended its complaint on June 9, 2003, to add a common-law claim for civil conversion.

This court issued an order on January 22, 2004, dismissing plaintiff's claims under §§ 2511 and 2512, premised in part upon the Fourth Circuit's reluctance to recognize implied causes of action, as set forth in Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir.1985). In Flowers, the Fourth Circuit refused to allow a private civil cause of action under 18 U.S.C. § 2520 for violation of § 2512. Plaintiff filed a motion on February 4, 2004, requesting this court reconsider disposition of its § 2511 and § 2512 claims, and either reinstate those claims or, in the alternative, enter an order of final judgment solely on those claims pursuant to Federal Rule of Civil Procedure 54(b).

Plaintiff filed a separate motion on February 27, 2004, asking leave of the court to amend its complaint in order to add state law claims for theft of telecommunications service, interception and disclosure of electronic communications, and unfair and deceptive trade practices. The defendant indicated no opposition to the motion, although he requested additional time in which to respond to the amended complaint. The court in an order entered March 26, 2004, therefore granted leave to the plaintiff to add the additional state law claims.

The amended complaint, filed April 2, 2004, also contained the §§ 2511 and 2512 claims previously dismissed by order of the court January 22, 2004. Defendant moved to dismiss the §§ 2511 and 2512 claims on April 14, 2004. The plaintiff, in a response filed May 3, 2004, indicated that it did not oppose the motion to dismiss as to the § 2512 claim, which the court now deems abandoned. At the same time, however, plaintiff renewed its motion requesting reconsideration of the January 22, 2004 order dismissing plaintiff's § 2511 claim. The court takes up and considers on the eve of trial, scheduled to commence at that term of court beginning October 25, 2004, the matter of plaintiff's § 2511 claim.

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure do not specifically address motions to reconsider, although such motions are common in federal practice. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). The purpose of a motion for reconsideration is to correct "manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir.1985). Motions to reconsider are not proper where the motion merely asks the court "to rethink what the Court had already thought through — rightly or wrongly." Id. A motion to reconsider is appropriate where

the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.

Id. See also Wiseman v. First Citizens Bank & Trust Co., 215 F.R.D. 507, 509

(W.D.N.C.2003) ("The limited use of a motion to reconsider serves to ensure that parties are thorough and accurate in their original pleadings and arguments presented to the Court.").

Defendant moved to dismiss plaintiff's § 2511 claim on the ground that it already had been dismissed by prior order of the court, and that the claim as stated was not one upon which relief could be granted. See FED. R. CIV. P. 12(b)(6). Under Rule 12(b)(6), a motion to dismiss only determines whether a claim is stated; it does not resolve disputed facts, merits of the claim, or applicability of defenses. Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE, § 1356 (1990)). Under the standard for a motion to dismiss, a complaint should not be dismissed unless it clearly appears that plaintiffs can show no set of facts which would entitled them to relief. Conley v. Gibson, 355 U.S. 41, 46-47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A court should not dismiss a complaint that states a claim, even if it appears that the chance of recovery is remote. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). For the purposes of ruling on a motion to dismiss, the court should construe allegations in the complaint as true and taken in the light most favorable to plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Republican Party, 980 F.2d at 952

Plaintiff argues that a motion to reconsider is appropriate because the parties were not able to brief and argue the issues upon which the order dismissing the § 2511 claim ultimately was decided. Specifically, the parties were not able to fully present for the court the issue of whether a civil cause of action exists under § 2511 and § 2520 for interception and use of an encrypted satellite transmission, such as plaintiff's satellite television programming. The point is well taken. The court concludes that it would be appropriate to reconsider the dismissal of plaintiff's § 2511 claim. The court denies plaintiff's request for a hearing, however.

III. DISCUSSION

As discussed above, plaintiff's § 2511 and § 2512 claims were brought under a code section that is criminal in nature. Civil causes of action may be brought under criminal statutes "where a statute clearly indicates that the plaintiff is one of a class for whose benefit the statute was enacted and there is some indication that Congress intended such a cause of action to lie." Flowers at 589 (citing Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)). To determine Congressional intent, courts may consider "the language of the statute, the legislative history, and the purpose and focus of the statute." Id. at 589 (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 576-77, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)).

Although §§ 2511 and 2512 do not directly create a private civil cause of action, such an action is provided for under 18 U.S.C. § 2520. In Flowers v. Tandy Corp., supra, the plaintiffs also attempted to bring suit under § 2520 for violation of §§ 2511 and 2512. The Fourth Circuit approved the § 2511 claim, but denied the § 2512 claim. This court first examines the Flowers opinion, and then analyzes the facts and circumstances of that case to determine if the reasoning and holding should be followed here.

In Flowers, the alleged violations were that Tandy Corporation, through its retail outlet Radio Shack, had sold individual defendants a telephone recording device, which enabled the defendants to surreptitiously intercept and record the telephone calls of their spouses, who the individual defendants suspected of adultery. The spouses discovered the recording devices and brought suit against the individual defendants for using the devices in violation of § 2511¹ and against Tandy Corp. for selling the devices in violation of § 2512.² The Fourth Circuit held that under § 2520 as it then read,³ plaintiffs had a cause of action for violation of § 2511, but not of § 2512. Flowers at 589 (noting the "express language of § 2520 is therefore not susceptible to a construction which would provide a cause of action against one who manufactures or sells a device in violation of § 2512 but does not engage in conduct violative of § 2511").

The court reasoned that although § 2520 broadly defined the class of plaintiffs as "any person whose communication is `intercepted, disclosed or used in violation of this chapter,' the language defining the class of persons liable is not comparably broad." Id. at 588 (emphasis in original.) Although § 2520 created liability for any person who "intercepts, discloses, or uses or procures any other person to intercept, disclose or use such communications," there was no mention of liability for any person who "manufactures, assembles, possesses or sells" any device to intercept such communications. Id. at 589. In other words, while the language of § 2520 closely tracked that of § 2511, it did not correspondingly track the language of § 2512. Therefore, any private cause of action for violation of § 2512 would have to be implied, not express. Lacking any evidence suggesting any intent on the part of Congress to create such a cause of action, the Fourth Circuit declined to do so. See id. ("The federal...