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In re Cases Filed by Directv, Inc., CV 03-00967-PHX (HRH).
Snell & Wilmer LLP, Phoenix, AZ, for Plaintiff.
This Order Pertains to the Following Related Cases:
Motions to Dismiss Fourth Cause of Action Based upon 18 U.S.C. § 2512(1)(b)
Defendants Robert Huggins, Kristen Huggins, Eric Bush, and Melissa Bush move for judgment on the pleadings1 on the issue of whether 18 U.S.C. § 25122 confers a private right of action. This motion is opposed.3 Oral argument was not requested and is not deemed necessary.
This case is one of many related civil cases filed by DirecTV in Arizona involving the alleged unlawful interception of satellite programming. These related cases are being jointly managed by the court but are not consolidated. The court has issued several case management orders ("CMO") regarding the jointly managed cases ("JMC").
CMO-1 stayed all motion practice in the JMC. By CMO-6, the court lifted the stay on motion practice as to the 2003 JMC. However, CMO-6 made special provisions, as summarized hereinafter, with respect to motions raising legal issues that would have application to all of the JMC.
As regards procedures for motion practice, CMO-6 provided:
(1) While the facts of individual JMC may vary considerably, and while discovery matters will likely have to be addressed on a case-by-case basis, matters of law are likely to have application in many if not all of the JMC. Except for good cause shown, legal issues involved in the JMC will be addressed only once.[4]
These procedures further provided that:
(b) Motions initiated by a defendant raising a legal issue applicable to multiple defendants shall be served upon all defendants and plaintiff simultaneously and filed with proof of service in the case file of the moving defendant. Plaintiff has prepared and shall provide to defense counsel upon request a master list of defendants in all of the JMC for use by defense counsel in serving such motions. Plaintiff shall update this master list regularly as necessary to keep the list current.[5]
The foregoing provision applied to "all of the JMC" and CMO-6 further made provision for defendants in all of the JMC to join in defense motion practice served upon them.6 Finally, CMO-6 provided that:
(h) Defendants in all of the JMC who are served with a multi-case motion are bound by the court's decision on all defense motions, irrespective of whether or not they have joined in or opposed the motion. The court will file its decision on multi-case motions in all affected cases....Having once ruled upon a subject, the court will abide by its initial ruling absent a clear showing that the initial ruling was wrong or that it is inapplicable to another party.[7]
The parties have observed the foregoing procedures in the development of the instant motion. Therefore, this order will have application to the legal issues herein decided for purposes of all of the JMC unless a party to a JMC shall show cause why it should not so apply within 14 days subsequent to the docketing of this order.
One further aspect of CMO-6 should be mentioned at this juncture. In CMO-6, the court specifically noted that in at least one of the 2003 JMC, Judge Martone has ruled8 that 18 U.S.C. § 2512 creates a private cause of action. Judge Martone's order provides in pertinent part:
We read the statute to create a private cause of action for a person whose communication was intercepted against the interceptor for all violations of chapter 119, except section 2511(2)(a)(ii). It does not limit the private cause of action to violations involving interception. Congress explicitly referenced and exempted section 2511(2)(a)(ii), but not section 2512. We conclude that once a person has intercepted a communication, the aggrieved party may recover for the interceptor's possession of a device to intercept.[9]
Consequently, in CMO-6, this court directed that, "[u]nless, on or before July 30, 2004, a party to the 2003 JMC shall show cause why the court should do otherwise, there will be entered in all of the 2003 JMC an order adopting the foregoing holding[] for purposes of all of the 2003 JMC."10 Plaintiff has asserted claims based on violations of 18 U.S.C. § 2512(1)(b) in all of the 2003 and 2004 JMC.
On July 30, 2004, defendants Huggins and defendants Bush11 filed a motion for judgment on the pleadings on the issue of whether 18 U.S.C. § 2512(1)(b) confers a private right of action. Eighteen defendants12 filed notices of joinder in the motion for judgment on the pleadings, including Daniel Gruenemeier, who also moved for reconsideration of Judge Martone's order13 denying Gruenemeier's motion to dismiss plaintiff's claim under 18 U.S.C. § 2512(1)(b).
Rule 12(c), Federal Rules of Civil Procedure, provides:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
"Judgment on the pleadings is proper when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Honey v. Distelrath, 195 F.3d 531, 532-533 (9th Cir.1999) (citing Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.1998)).
This matter involves the Wiretap Act, 18 U.S.C. §§ 2510-2522 (2000), which was originally enacted in 1968 to prohibit "most interceptions of an individual's oral or wire communications by an `electronic, mechanical, or other device' [18 U.S.C. § 2510(4], unless the interception falls within a statutory exception or is accomplished in accordance with statutory procedures." 1 Causes of Action (Second) 499, § 2 (2003) (citing 18 U.S.C. § 2511).
In 1986, Congress passed the Electronic Communications Privacy Act ("ECPA"), which broadened the Wiretap Act to cover the intentional interception of electronic communications as well as oral and wire communications. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir.2002), cert. denied, 537 U.S. 1193, 123 S.Ct. 1292, 154 L.Ed.2d 1028 (2003). As amended, "[t]he Wiretap Act makes it an offense to `intentionally intercept[] ... any wire, oral, or electronic communication.'" Id. at 876 (quoting 18 U.S.C. § 2511(1)(a)).
Two sections of the Wiretap Act or ECPA are at issue in this motion, 18 U.S.C. § 2512(1)(b) and 18 U.S.C. § 2520(a).
18 U.S.C. § 2512(1)(b) provides:
(1) 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. §...
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