Opinion
Civil Action No. 03-3277.
August 5, 2004
MEMORANDUM
Defendant Michael Weiss has filed a motion for summary judgment in this illegal interception of satellite signal case brought by plaintiff, Directv, Inc. Defendant's sole contention is that the statute of limitations bars some of plaintiff's claims. The motion will be denied as genuine issues of material fact exist as to when plaintiff had reasonable opportunity to discover defendant's alleged violations.
I. BACKGROUND
Plaintiff Directv, Inc. is in the business of distributing satellite television broadcasts throughout the United States. Customers who subscribe to Directv's services receive a satellite receiver to de-scramble the otherwise unusable television signals broadcast by Directv and transmitted by satellite. Each satellite receiver contains a removable access card, which can be electronically programmed by Directv to open or close television channels depending on the level of service subscribed to by each customer.
As part of its ongoing efforts to prevent the unauthorized use of its signal, on January 21, 2001, Directv released an electronic counter measure (ECM) which targets and disables illegally modified access cards. According to Directv, the ECM is a one-way signal. Thus, while ECM's disable "hacked" access cards, ECMs do not permit the detection of access cards according to plaintiff's representations.
Meanwhile, through its own investigations, Directv identified several businesses that acted as warehouses and forwarding entities that manufacture and/or sell illegal pirating devices. With the assistance of local law enforcement, Directv executed Writs of Seizure on the facilities of the Fulfillment Pirate Group (not a defendant in this action) on May 25, 2001. As a result of these raids, Directv obtained shipping records, e-mail communications, and credit card receipts.
Among the records seized, Directv obtained evidence that, on or about March 8, 2001, defendant purchased two printed circuit board devices (called a "bootloader") from the Fulfillment Pirate Group. The bootleggers were shipped from the Fulfillment Pirate Group to the defendant via UPS at his address in Doylestown, Pennsylvania. According to plaintiff, a bootloader is designed to allow the surreptitious interception of Directv's satellite programming.
The complaint alleges, inter alia, that defendant possessed devices that permitted the unauthorized interception of Directv satellite programming, that defendant received unauthorized Directv satellite programming, and that defendant displayed unauthorized Directv satellite programming, in violation of the Cable Communications Act, 47 U.S.C. § 605 and the Federal Wiretap Act, 18 U.S.C. §§ 2511- 2512. Plaintiff has also brought state law claims of civil conversion and violations of the Pennsylvania cable piracy statute, 18 Pa. C.S. § 910.
In the motion for summary judgment, defendant argues that a two year statute of limitations applies to plaintiff's Federal Wiretap Act claims, and that plaintiff's claims are time-barred. For the following reasons, the motion will be denied.
The only authority that defendant cites for his contention that a two year statute of limitations period applies is 18 U.S.C. § 2520. Therefore, the Court will construe plaintiff's motion to be directed to the claims brought under the Federal Wiretap Act, i.e., counts 2 and 3.
II. DISCUSSION
A. The Standard for Summary Judgment.
A court may grant summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56©). A fact is "material" only if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is "genuine" only when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. In determining whether there exist genuine issues of material fact, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coregis Ins. Co. v. Baratta Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
Although the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, in a case such as this, where the non-moving party is the plaintiff, and therefore, bears the burden of proof at trial, that party must present affirmative evidence sufficient to establish the existence of each element of his case. Id. at 306 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Accordingly, a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment, see Celotex, 477 U.S. at 324, but rather, she "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Service., 214 F.3d 402, 407 (3d Cir. 2000).
B. The Statute of Limitations.
Claims brought under the Federal Wiretap Act are subject to a two year statute of limitations commencing when the "claimant first has a reasonable opportunity to discover the violation." 18 U.S.C. § 2520(e). The instant complaint was filed on May 23, 2003. Thus, if defendant can establish that plaintiff had reasonable opportunity to discover the alleged violations prior to May 23, 2001, counts 2 and 3 of the complaint are time-barred.
According to the defendant, plaintiff should have known of any alleged violations as early as January 21, 2001, when the ECM signal was released by Directv. At the very least, defendant argues that plaintiff should have known of the alleged violations by March 8, 2001, the date on which defendant purchased the two "bootloaders" from the Fulfillment Pirate Group.
While defendant appears to believe that the mere release of the ECM gave plaintiff notice of defendant's activities, plaintiff has argued that ECMs are one-way signals, that disable, but do not detect illegal access cards. Other than the proffers of counsel, neither side has provided any evidence in support of their respective theories. Thus, the Court cannot conclude, as a matter of law, that defendant is entitled to summary judgment because a genuine issue of material fact exists as to whether January 21, 2001 was when plaintiff first had reasonable opportunity to discover the violations alleged.
As to defendant's contention that plaintiff had reasonable opportunity to discover the alleged violation on March 8, 2001, the date of defendant's alleged purchase of the "bootloaders," this argument is flawed because it appears that it was only after the execution of the Writs of Seizure on May 21, 2001, and plaintiff's receipt of the records from the Fulfillment Pirate Group subsequent to the seizures, that it discovered defendant's purchase. If Directv did have reasonable notice of defendant's alleged purchases prior to the date of the raids, defendant has provided no evidence of this.
C. Defendant's Failure to Comply with Local Rule 7.1(c).
Also, the Court notes that defendant's motion for summary judgment is not accompanied by a brief, as required by Local Rule 7.1(c). While plaintiff has pointed out this omission in its response to defendant's motion, nearly four months have passed and defendant has neither filed a reply to plaintiff's response addressing the issue, nor has defendant remedied the defect by filing a brief, even if it would ultimately be untimely. Defendant's failure to comply with the local rules provides yet another reason independent of the reasons discussed above for denial of the motion. See United States v. Eleven Vehicles, 200 F.3d 203, 214 (3d Cir. 2000) (recognizing that it is not an abuse of discretion for a district court to impose sanctions such as dismissing a motion when a litigant fails to comply with the terms of local rules).
Counsel is hereby provided fair notice that to continue to practice in this Court, he must comply faithfully with the Local Rules.
III. CONCLUSION
In view of the forgoing, defendant's motion for summary judgment will be denied.
An appropriate order follows.