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In DirecTV, the court found that Noerr-Pennington immunity applied broadly, even though the defendant was alleged to have employed deceptive and unethical terms as alleged here.
Summary of this case from Gerber v. Citigroup, Inc.Opinion
Case No. 02-74829.
August 26, 2003
MEMORANDUM AND ORDER GRANTING PLAINTIFF/COUNTER-DEFENDANT'S MOTION TO DISMISS
Although the Court originally scheduled this matter for hearing, upon review of the parties' papers, the Court finds that oral argument is not necessary. See E.D. Mich. LR 7.1(e)(2).
I. Introduction
This is one of several cases in this district filed by plaintiff DirecTV against individual defendants claiming that defendants have pirated satellite TV. Defendants, such as defendant Marlin Milliman here, are alleged to have purchased "pirate access devices" to enable them to get free satellite TV that is provided by DirecTV. Here, DirecTV makes four claims against Milliman: (1) violation of section 605 of the Federal Communications Act (FCA) — unauthorized reception of satellite signals, (2) violation of section 2511(1)(a) of the FCA — unauthorized interception of satellite communication, (3) violation of section 2511(1)(B) of the FCA — possession of a pirate access device, and (4) conversion.
Milliman filed a counter-complaint and third party complaint, naming Hughes Electronics and DirecTV End User Development Group as third-party defendants (collectively DirecTV). Milliman says that all defendants "have attempted to extort personal property and money through a mass mailing scheme." Apparently, Milliman received a letter from DirecTV stating that he was unlawfully intercepting satellite TV. Milliman wrote back and denied such activity. Milliman says DirecTV responded with another letter stating that if he did not want to be sued he would have to pay $4,500.00.
Milliman admits that he was a paying DirecTV subscriber until sometime in 1999 when he divorced his wife and she apparently took the DirecTV device. He also admits that in July of 2002, his 15 year old son purchased with Milliman's credit card, without permission, a item of electronic equipment from Future Capital Corporation d/b/a White Viper Technologies. Milliman says he is unaware of the type of equipment his son purchased or its intended use. It is apparently this purchase that DirecTV says is a pirated access device.
Essentially, Milliman alleges that DirecTV, as part of an End User Recovery Program, used threatening letters to extract settlement amounts from consumers of electronic equipment under the guise of stamping out signal piracy. Milliman says that DirecTV "raided" certain companies that sold electronic devices over the Internet and after obtaining invoice records, sent letters to the purchasers telling them they possessed a pirate access device and threatened a lawsuit if the purchaser did not pay an amount to settle the dispute.
Milliman makes counterclaims for (1) extortion in violation of 18 U.S.C. § 876, (2) conspiracy to extort in violation of 18 U.S.C. § 876, (3) violation of Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, and Michigan Collection Practices Act, M.C.L. § 339.901, (4) a RICO violation, 18 U.S.C. § 1962(b), (5) deceptive trade practice violation of the Michigan Consumer Protection Act (MCPA), M.C.L. § 445,903, (6) fraud and misrepresentation, and (7) defamation.
DirecTV filed an answer generally denying Milliman's allegations.
Before the Court is DirecTV's motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss all seven of Milliman's counterclaims.
Milliman has filed a motion for summary judgment as to DirecTV's claims and a motion for imposition of sanctions for filing a frivolous lawsuit. These motions are currently pending.
For the reasons that follow, DirecTV's motion is GRANTED.
II. Discussion A. Motion to Dismiss Standard
A Fed.R.Civ.P. 12(b)(6) motion seeks dismissal for a plaintiff's failure to state a claim upon which relief can be granted. "The court must construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove a set of facts in support of its claims that would entitle it to relief."Bovee v. Coopers Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). "To survive a motion to dismiss under Rule 12(b)(6), a `complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Advocacy Org. for Patients and Providers v. Auto Club Ins. Ass'n., 176 F.3d 315, 319 (6th Cir. 1999) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)).
B. Analysis
As previously stated, this is one of several satellite television piracy cases currently being litigated by DirecTV. In a very similar case recently decided in this district, Judge George Caram Steeh granted DirecTV's motion for summary judgment on an identical set of seven counterclaims. DirecTV v. Karpinsky, No. 02-73929, 2003 WL 21499927 (E.D. Mich. Jun. 17, 2003), vacated in part on other grounds, 2003 WL 21782351 (E.D. Mich. Jul. 31, 2003). The opinion in Karpinsky is instructive. However, the Court must engage in its own analysis because DirecTV has filed a motion to dismiss, not a motion for summary judgment.1. Count I: Extortion
Milliman claims in his counter-complaint that DirecTV committed extortion in violation of 18 U.S.C. § 876. However, section 876 "is a federal criminal statute that does not authorize a civil cause of action." Karpinsky, 2003 WL 21499927, at *8; Bryant v. Yellow Freight Sys., 989 F. Supp. 966, 968 (N.D. Ill. 1997);Rosado v. Curtis, 885 F. Supp. 1538, 1541 (M.D. Fla. 1995). A civil claim for violation of a criminal statute that does not provide a civil cause of action must be dismissed as a matter of law. Willing v. Lake Orion Community Sch. Bd. of Trustees, 924 F. Supp. 815, 818 (E.D. Mich. 1996). Milliman says that either extortion or a conspiracy to commit extortion must exist as predicate acts to support his RICO claim. This does not make them actionable in separate civil counts, however. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 491-93 (defendant need not be convicted of predicate act in order to be liable for civil RICO violation). Count I must be dismissed.
2. Count II: Conspiracy to Commit Extortion
Milliman claims in his counter-complaint that defendants DirecTV and DirecTV End User Development Group conspired to commit extortion in violation of 18 U.S.C. § 876. For the reasons stated above regarding 18 U.S.C. § 876, Count II must also be dismissed.
3. Count III: Fair Debt Collection Practices Act and Michigan Collection Practices Act
Milliman did not make any argument regarding Count III in his papers.
Milliman claims in his counter-complaint that DirecTV:
(1) failed to properly give a validation notice as required by 15 U.S.C. § 1692g(a) and M.C.L. § 339.918(1), and
(2) falsely threatened to initiate legal action in violation of 15 U.S.C. § 1692e(5) and M.C.L. § 339.915(e).
There is a fatal flaw in each of these claims, however. Both the FDCPA and the Michigan Collection Practices Act require an attempted collection of a "debt." The FDCPA defines a "debt" as:
any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.15 U.S.C. § 1692a(5). Similarly, the Michigan Collection Practices Act defines a "debt" as "an obligation or alleged obligation for the payment of money or thing of value arising out of an expressed or implied agreement or contract for a purchase made primarily for personal, family, or household purposes." M.C.L. § 339.901(a). DirecTV's allegations of satellite piracy do not qualify as a "debt" within the meaning of either statute.
Numerous cases have held that theft does not create a "debt" under the FDCPA. Bass v. Stolper, Koritzkinsky, Brewster Neider, S.C., 111 F.3d 1322, 1326 (7th Cir. 1997) ("although a thief undoubtedly has an obligation to pay for the goods or services he steals, the FDCPA limits its reach to those obligations to pay arising from consensual transactions, where parties negotiate or contract for consumer-related goods or services"); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1168 (3d Cir. 1987) (stating that a "transaction" giving rise to a "debt" must "involv[e] the offer or extension of credit to a consumer"); Karpinsky, 2003 WL 21499927, at *7; Riebe v. Juergensmeyer Assocs., 979 F. Supp. 1218, 1220-21 (N.D. Ill. 1997) ("cases holding that a `debt' exists under the FDCPA have consistently involved some form of initial `business dealing' creating the obligation to pay'"); Coretti v. Lefkowitz, 965 F. Supp. 3, 5 (D. Conn. 1997) (dismissing FDCPA claim in a nearly identical case and holding that "unauthorized [cable television] reception . . . constitutes theft not a receipt of services giving rise to a `debt'"). Milliman does not state a claim under the FDCPA.
Although no Michigan court has held that theft does not create a "debt" under the Michigan Collection Practices Act, the FDCPA and its Michigan "counterpart," Gradisher v. Check Enforcement Unit, Inc., 133 F. Supp.2d 988, 988 (W.D.Mich. 2001), are often read together. E.g., Burns v. Accelerated Bureau of Collections, Inc., 828 F. Supp. 475, 476 (E.D. Mich. 1993);Asset Acceptance Corp. v. Robinson, 244 Mich. App. 728, 732-35 (2001). Indeed, the two definitions of "debt" are very similar. While the obligation to pay arises out of a "transaction" under the FDCPA, the obligation arises out of "an expressed or implied agreement or contract for a purchase" under the Michigan Collection Practices Act. In its letter to Milliman, DirecTV never requested reimbursement under an agreement or contract. Rather, it demanded that Milliman surrender all satellite signal theft devices in his possession, execute a written statement that he would not purchase or use such theft devices in the future, and pay money as compensation for past wrongful conduct. None of these demands were transactional in nature. Hence, Milliman's claim under the Michigan Fair Collection Practices Act also fails as a matter of law. See Karpinsky, 2003 WL 21499927, at *7.
Count III must be dismissed.
4. Count IV: RICO
Milliman claims in his counter-complaint that DirecTV violated 18 U.S.C. § 1962(b), which requires proof that DirecTV:
(1) acquired or maintained
(2) through a "pattern of racketeering activity" or the "collection of an unlawful debt"
(3) an interest in or control of an enterprise
(4) engaged in, or the activities of which affect, interstate or foreign commerce.Advocacy Org., 176 F.3d at 321-22. In his counter-complaint, Milliman does little more than restate the exact words of section 1962(b) for each particular defendant and allege "an elaborate mail fraud scheme to defraud consumers throughout the nation."
To show a pattern of racketeering activity, a RICO plaintiff is required to allege at least two predicate acts within ten years of each other. 18 U.S.C. § 1961(5); Advocacy Org., 176 F.3d at 322; see H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 241-42 (1989) (pattern requires temporal "continuity" between the alleged predicate acts). The possible predicate acts are listed in the definition of "racketeering activity" in 18 U.S.C. § 1961(1). Milliman claims that DirecTV (1) committed extortion in violation of 18 U.S.C. § 876, (2) violated the FDCPA, and (3) violated the Michigan Fair Collection Practices Act. However, section 876 is not listed in 18 U.S.C. § 1961(1). Milliman cites Teamsters Local 372 v. Detroit Newspapers, 956 F. Supp. 753 (E.D. Mich. 1997) for the proposition that attempts to extort money or property can establish a pattern of racketeering activity. However, this case involved claims of extortion under the Hobbs Act, 18 U.S.C. § 1951(b)(2), and the Michigan extortion statute, not 18 U.S.C. § 876. Id. at 763-64. Moreover, "[a] threat of litigation if a party fails to fulfill even a fraudulent contract . . . does not constitute extortion." Vemco, Inc. v. Camardella, 23 F.3d 129, 134 (6th Cir. 1994); Karpinsky, 2003 WL 21499927, at *10.
Even a claim that DirecTV committed the predicate act of extortion under the Michigan extortion statute, M.C.L. § 750.213, would fail because "a threat to bring a civil suit to enforce one's rights cannot give rise to an action under [that] statute."Advocacy Org., 176 F.3d at 325.
Milliman has also failed to state a claim for an enterprise acquired or maintained through the "collection of an unlawful debt." The RICO statute defines an "unlawful debt" as a debt incurred in violation of gambling or usury laws. 18 U.S.C. § 1961(6). Milliman's counterclaims do not relate to gambling or usury laws. Furthermore, the theft of satellite television services does not create a "debt." Hence, Milliman's RICO claim fails as a matter of law. Count IV must be dismissed.
5. Count V: Michigan Consumer Protection Act
Milliman claims a violation of the MCPA, which prohibits certain "[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce." M.C.L. § 445.903(1). Specifically, Milliman claims that DirecTV violated the following provisions:
(n) Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction.
(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.
(t) Entering into a consumer transaction in which the consumer waives or purports to waive a right, benefit, or immunity provided by law, unless the waiver is clearly stated and the consumer has specifically consented to it.
(v) Taking or arranging for the consumer to sign an acknowledgment, certificate, or other writing affirming acceptance, delivery, compliance with a requirement of law, or other performance, if the merchant knows or has reason to know that the statement is not true.
(z) Charging the consumer a price that is grossly in excess of the price at which similar property or services are sold.
(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.
M.C.L. § 445.903.
DirecTV argues that the MCPA count should be dismissed for two reasons: (1) Milliman's alleged satellite piracy is not "trade or commerce" as required by the statute, and (2) the MCPA was not intended to protect individuals like Milliman who are not true consumers.
First, in order to state a claim under the MCPA, the alleged unfair practices must occur "in the conduct of trade or commerce." M.C.L. § 445.903(1). "Trade or commerce" is defined in the statute as:
the conduct of a business providing goods, property, or service primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.
M.C.L. § 445.902(d). DirecTV's argument that satellite piracy is not "trade or commerce" is misplaced because Milliman never alleged piracy as the "trade or commerce" in question. Rather, Milliman alleges in his counter-complaint that DirecTV "engaged in trade or commerce . . . by providing satellite television programming to residential and business customers of Michigan."
The "trade or commerce" requirement does not require a transaction of goods or services between the parties. Florists' Transworld Delivery, Inc. v. Fleuropinterflora, 261 F. Supp.2d 837, 849-50 (E.D. Mich. 2003); Action Auto Glass v. Auto Glass Specialists, 134 F. Supp.2d 897, 901 (W.D. Mich. 2001) (allowing an MCPA claim against a business competitor who falsely advertised that the plaintiff's business was fraudulent). All a plaintiff needs to show is "that the defendant is in the business of providing consumer goods or services." Action Auto, 134 F. Supp.2d at 901. Hence, the fact that DirecTV's main case concerns satellite piracy is irrelevant. It certainly conducted business by providing satellite television programming to users for their personal, family, or household use. Milliman's allegation is sufficient to meet the "trade or commerce" requirement and state a claim under the MCPA.
Second, DirecTV argues that the MCPA "cannot be construed as to protect alleged theft; [Millman] is not suing in the capacity of a `consumer' protected by the MCPA." DirecTV is correct that the intent of the MCPA is to protect consumers when they purchase personal, family, or household goods. Noggles v. Battle Creek Wrecking, Inc., 153 Mich. App. 363, 367 (1986). However, many cases have extended the statute's protection to competitors. E.g., Florists' Transworld Delivery, 261 F. Supp.2d at 849-50; Action Auto Glass, 134 F. Supp.2d at 899-901; John Labatt Ltd. v. Molson Breweries, 853 F. Supp. 965, 970 (E.D. Mich. 1994). Indeed, the MCPA's "intent of protecting consumers is well served by allowing suit to be brought by non-consumers who have a significant stake in the events." Labatt, 853 F. Supp. at 970. Furthermore, the MCPA is a remedial statute and "must be liberally construed to achieve its intended goals." Forton v. Laszar, 239 Mich. App. 711, 715 (2000). Accepting all of Milliman's factual allegations as true, as the Court must in deciding a motion to dismiss, it cannot be said at this stage of the litigation that Millman cannot prove a set of facts entitling him to relief. However, as explained in Section II, B, 8, Count V must be dismissed for other reasons.
DirecTV might argue that Milliman's claims regarding subsections (n), (t), and (cc) of the MCPA should be dismissed because each subsection requires a consumer "transaction." The term "transaction" is not defined in the MCPA, but has been interpreted to mean "the business conducted between the parties."Zine v. Chrysler Corp., 236 Mich. App. 261, 279-80 (1999). The plaintiff in Zine bought an automobile and claimed that the defendant seller violated the MCPA by failing to disclose certain "lemon law" information. Id. at 263-66. The court defined the "transaction" as "the negotiations that concluded in Zine's agreement to buy the truck." Id. at 280. In this case, Milliman says that he was a DirecTV subscriber until August 1999. The alleged unfair trade practices were wholly unrelated to this transaction. However, DirecTV's letters and the subsequent communications between the parties, should be considered business dealings themselves, just like the negotiations that were considered a "transaction" in Zine.
6. Count VI: Fraud and Misrepresentation
Milliman claims in his counter-complaint that DirecTV intentionally made false representations of material facts regarding Milliman's alleged illegal use of electronic equipment, knowing that they were false and intending that Milliman rely on the representations.
Milliman generally alleges each of the required elements for a fraud action:
(1) that the defendant made a material representation, (2) that the representation was false, (3) that when the defendant made the representation, it was known to be false, or was made recklessly, without any knowledge of its truth and was made as a positive assertion, (4) that the defendant made the representation with the intention that it should be acted on by the plaintiff, (5) that the plaintiff acted in reliance on it, and (6) that the plaintiff suffered damages as a result.H.J. Tucker Assocs., Inc. v. Allied Chucker Eng'g Co., 234 Mich. App. 550, 572 (1999). However, DirecTV argues that Milliman's claim of fraud fails to meet the requirement of Fed.R.Civ.P. 9(b) that the circumstances of the alleged fraud be stated with particularity. Specifically, DirecTV says that Milliman failed to state the time, place, and contents of the misrepresentation, the identity of the person making the misrepresentation, and what that person gained by the representation.
"The Sixth Circuit reads [Rule 9(b)] liberally, . . . requiring a plaintiff, at a minimum, to `allege the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.'" Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir. 1993) (citation omitted). Rule 9(b) also requires the plaintiff to allege at least some details regarding how he relied on the representations. Id. at 162. Although Milliman has alleged a fraudulent scheme, fraudulent intent, and resulting injury, there are two flaws in his fraud count.
First, Milliman has not specifically alleged what misrepresentations DirecTV made. Instead, the counter-complaint alleges false statements "of material facts . . . regarding [his] purchase and attempts to use electronic equipment to view unauthorized programming." Milliman identifies the allegedly false statement in his papers as DirecTV's first threatening letter, which stated that mere possession of signal theft equipment is illegal in certain circumstances. Milliman says that the time, place, and content of the misrepresentations are "self-evident" from the letter because it was attached to his counter-complaint. As support, he cites Michaels Bldg. Co. v. Ameritrust Co., N.A. 848 F.2d 674 (6th Cir. 1988), which found a fraud count containing the following sufficient:
the parties and the participants to the alleged fraud, the representations made, the nature in which the statements are alleged to be misleading or false, the time, place and content of the representations, the fraudulent scheme, the fraudulent intent of the defendants, reliance on the fraud, and the injury resulting from the fraud. In addition, the plaintiffs identified the fraudulent loan documents and attached copies of them to the complaint.Id. at 679. However, Milliman's counter-complaint refers to numerous statements made by DirecTV. While he did attach the letter to the counter-complaint, it is impossible for DirecTV to know from the language in the fraud count exactly what representations in the letter are alleged to be false. Furthermore, the counter-complaint does not allege the nature in which the statements are alleged to be false.
Second, Milliman has failed to particularly allege any details about how he relied on the alleged misrepresentations other than his statement that he took "steps to resolve the claim based on threats (actual or perceived) of criminal prosecution and frivolous litigation." Milliman argues that his reliance is "clear." He relied on DirecTV's statements by retaining an attorney to contact DirecTV. However, that fact does not appear on the face of the counter-complaint. Hence, the fraud count does not give sufficient notice to permit an informed answer. Count VI must be dismissed.
7. Count VII: Defamation
Milliman did not make any argument regarding Count VII in his papers.
Milliman claims in his counter-complaint that DirecTV falsely accused him of committing a crime. In Michigan, the tort of defamation requires proof of the following:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod).Burden v. Elias Bros. Big Boy Restaurants, 240 Mich. App. 723, 726 (2000). DirecTV correctly points out that the elements of a defamation action "must be specifically pleaded, including the allegations with respect to the defamatory words, the connection between the plaintiff and the defamatory words, and the publication of the alleged defamatory words." Gonyea v. Motor Parts Fed. Credit Union, 192 Mich. App. 74, 77 (1991). Milliman's allegation that DirecTV "published the remarks to third parties" is insufficient to meet the publication specificity requirement. Furthermore, Milliman has not alleged the specific defamatory words in his counter-complaint to allow the Court to determine whether a cause of action appears. "`A declaration in an action for libel which fails to show where the alleged libels were published or their contents failed to state a cause of action for libel.'" Pursell v. Wolverine-Pentronix, Inc., 44 Mich. App. 416, 421 (1973) (citation omitted). Accordingly, Count VII must be dismissed.
8. Noerr-Pennington Doctrine
Because every other count in Milliman's counter-complaint must be dismissed on other grounds, the following analysis applies mainly to Count V.
Finally, DirecTV argues that all of Milliman's counterclaims are barred under the Noerr-Pennington doctrine, which immunizes certain acts related to the "constitutional right to seek redress from wrong in the courts" unless they are a mere "sham." Pennwalt Corp. v. Zenith Lab., Inc., 472 F. Supp. 413, 424 (E.D. Mich. 1979). As a First Amendment doctrine, the immunity extends beyond antitrust claims. Id. Clearly, pre-suit demand letters are a type of conduct protected by the doctrine.Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1367 (5th Cir. 1983) (stating that "those acts reasonably and normally attendant upon effective litigation" are immunized, including warnings that litigation will be commenced and efforts to settle); Neway Anchorlok Int'l, Inc. v. Longwood Indus., 107 F. Supp.2d 810, 813 (W.D. Mich. 1999); In re Cardizem CD Antitrust Litigation, 105 F. Supp.2d 618, 637 (E.D. Mich. 2000) (extending immunity to "pre-litigation threats of suit, demand letters, and communications about pending suits"). In fact, other lawsuits involving DirecTV have been dismissed based on similar state anti-SLAPP laws. E.g., Buckley v. DirecTV, Inc., No. 03-484MHS, 2003 WL 21955876 (N.D. Ga. Jun. 26, 2003) (Georgia statute).
The Noerr-Pennington doctrine comes from two Supreme Court cases: United Mine Workers v. Pennington, 381 U.S. 657 (1965), and E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).
Milliman essentially argues that DirecTV's demand letters were a "sham" because they attempted to obtain a settlement based on false or fraudulent representations. However, Noerr-Pennington immunity "applies even though the defendant had employed deceptive and unethical means." Santana Prods. v. Bobrick Washroom Equip., Inc., 249 F. Supp.2d 463, 492 (M.D. Pa. 2003) (citing Noerr, 365 U.S. at 145). To be a "sham," the asserting party must show that the threatened litigation is objectively baseless and subjectively conceals an attempt to interfere with business relations. Neway, 107 F. Supp.2d at 812. The "plaintiff must plead and prove the baselessness of the threatened litigation." Id. at 813. Here, Milliman has not made any direct or inferential allegations in his counter-complaint sufficient to show that DirecTV's conduct was objectively baseless. Indeed, Milliman states that he was a paying subscriber of DirecTV until 1999 and that his son purchased an item of electronic equipment from White Viper Technologies. These facts are sufficient to give DirecTV an objective basis for a lawsuit. Hence, Milliman has failed to state a claim that would entitle him to relief on any of the seven counterclaims.
III. Conclusion
For the foregoing reasons, DirecTV's motion to dismiss under Rule 12(b)(6) is GRANTED. Milliman's counterclaims are DISMISSED.
SO ORDERED.