DirectTV, LLC v. Shirah et al

Filing 61

ORDER granting in part and denying in part 10 Motion to Dismiss. Plaintiff's claim for civil conversion is hereby dismissed for failure to state a claim upon which relief can be granted. However, Defendants' request to dismiss Plaintiff's prayer for punitive damages is denied. Signed by Judge William T. Moore, Jr on 3/12/2014. (loh)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

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DIRECTV, LLC

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Plaintiff,
CASE NO. CV413-110

V.

HERMAN R. SHIRAH, JR., a/k/a
Rudy Shirah, individually,
and as an officer, director,
shareholder and/or principal
of Panacea of the Islands,
Inc., d/b/a The Islander; and
PANACEA OF THE ISLANDS, INC.,
d/b/a The Islander,
Defendants.

ORDER

Before the Court is Defendants' Motion to Dismiss
Count Three of the Complaint. (Doc. 10.) Plaintiff has
filed a response (Doc. 13), to which Defendants have filed
a reply (Doc. 29). For the following reasons, Defendants'
motion is GRANTED IN PART and DENIED IN PART. Plaintiff's
claim for civil conversion is hereby DISMISSED for failure

to state a claim upon which relief can be granted.
However, Defendants' request to dismiss Plaintiff's prayer
for punitive damages is DENIED.
BACKGROUND

Plaintiff is a major distributor of satellite
television and audio programming throughout the United

t.

States.'

(Doc. 1 ¶ 5.) Plaintiff offers these services

at different subscription rates to both commercial
establishments as well as private homes. (Id. ¶ 17.)
However, once a service is purchased by a subscriber,
Plaintiff cannot easily detect if its signal is entering a
commercial establishment or a private home. (Id.) This
leaves Plaintiff susceptible to a residential customer
transferring its signal to a commercial establishment in
order to pay the lower subscription rate. (Id.)
On September 27, 2012, Defendants received and
displayed Plaintiff's

signal

at

their commercial

establishment. (Id. ¶ 19.) At this time, Defendants did
not have a commercial subscription with Plaintiff, nor did
they otherwise have Plaintiff's authorization to exhibit
its signal in a commercial establishment. (Id. ¶ 20.)
Consequently, Plaintiff filed this action alleging
violations of electronic broadcast statutes as well as
civil conversion of its satellite signal. (Doc. 1.)
Defendants subsequently moved to dismiss the civil
conversion claim. (Doc. 10.)

' For the purposes of this motion, Plaintiff's allegations
set forth in its complaint will be taken as true. See
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th
Cir. 2009)
2

ANALYSIS

I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) (2) requires a
complaint to contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
"[T] he pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation." Aschroft v. Igbal, 556 U.S. 662, 678 (2009)
(quoting Bell Ati. Corp. v. Twomby, 550 U.S. 544, 555
(2007)). "A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do." Igbal, 556 U.S. at 678 (internal
quotations omitted). "Nor does a complaint suffice if it
tenders naked assertions devoid of further factual
enhancement." Id. (quotations omitted).
When the Court considers a motion to dismiss, it
accepts the well-pleaded facts in the complaint as true.
Sinaltrainal v. Coca-Cola Co.,, 578 F.3d 1252, 1260 (11th
Cir. 2009). However, this Court is "not bound to accept
as true a legal conclusion couched as a factual
allegation." Igbal, 556 U.S. at 678. Moreover,
"unwarranted deductions of fact in a complaint are not
admitted as true for the purpose of testing the
3

sufficiency of plaintiff's allegations."

Sinaltrainal,

578 F.3d at 1268. That is, "[tihe rule 'does not impose a
probability requirement at the pleading stage,' but
instead simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence
of the necessary element." Watts v. Fla. Int'l Univ., 495
F.3d 1289, 1295-96 (11th dr. 2007) (quoting Twonthly, 550
U.S. at 545). "Factual allegations must be enough to
raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555. As such, a district court may
"insist upon some specificity in [the] pleading before
allowing a potentially massive factual controversy to
proceed." Id. at 558.
II. THE CONVERSION ACTION
Because Defendants are no longer in possession of the
broadcast signal, both parties agree on the elements of
conversion pursuant to O.C.G.A. §51-10-1. The Plaintiff
must show (1) that it had title to the property or the
right of possession; (2) that the other party was in
actual possession of the property; (3) that it demanded
the return of the property; and (4) that the other party
refused to return the property. Johnson v. First Union
Nat'l Bank, 567 S.E.2d 819, 823, 255 Ga. App. 44, 49
(2002)

With regard to the second and third factors,
Defendant argues that Plaintiff did not make any demand
for the return of the satellite signal, nor did Defendants
refuse to return it.

(Doc. 10 at 5.) Plaintiff responds

that it informed Defendants they were in violation of
their residential subscription terms and Defendants did
not respond until after Plaintiff had disconnected the
signal.

(Doc. 13 at 6.) However, the Court cannot find,

and Plaintiff does not supply, any support to show that
informing another party of a contract violation is
simultaneously a request for the return of the property in
question.

Plaintiff has not pled any facts to suggest

that it made a request for the return of its satellite
signal or that Defendant refused.

Accordingly,

Plaintiff's complaint as to count three must fail. 2
III. PUNITIVE DAMAGES
Defendants first argue that Plaintiff's prayer for
punitive damages should be struck because none of
Plaintiff's claims other than conversion can give rise to
punitive damages. (Doc. 10 at 6.) However, 18 U.S.C.

2

It appears that the issue of whether a satellite signal
can be the subject of conversion is a matter of first
impression under Georgia state law. However, the Court
need not address this question here because Plaintiff has
failed to sufficiently plead the elements of conversion in
its complaint.
5

§ 2520 authorizes punitive damages in appropriate cases
for violations pursuant to 18 U.S.C. § 2511 and
Plaintiff's complaint still includes claims under that
statue. See 18 U.S.C. § 2520(b) (2). While it is
uncertain at this stage in the litigation whether this
case is an "appropriate case" for punitive damages, the
Court cannot find that Plaintiff is precluded from
attaining an award of punitive damages as a matter of law.
Defendants also argue that Plaintiff has failed to
plead for punitive damages with sufficient particularity.
(Doc. 10 at 6.) The Court finds this argument without
merit. It is true that a prayer for damages is not itself
an allegation and facts must be pled that could give rise
to a punitive damages award. Drug Emporium, Inc. v.
Peaks, 288 S.E.2d 500, 506, 227 Ga. App. 121 (1997)
However, Plaintiff's complaint clearly alleges that
Defendants intentionally intercepted its satellite
broadcast signal for use in a commercial establishment
without authorization. (Doc. 1 ¶ 20.) At this stage in
the litigation, the Court finds that Plaintiff has met its
burden of pleading a "short and plain statement of the
claim" to at least potentially support a prayer for
punitive damages. Fed. R. Civ. P. 8(a) (2). Accordingly,

Plaintiff's prayer for punitive damages will not be struck
from its complaint.
CONCLUSION
For the following reasons, Defendants' motion (Doc.
10) is GRANTED IN PART and DENIED IN PART. Plaintiff's
claims for civil conversion are hereby DISMISSED for
failure to state a claim upon which relief can be granted.
However, Defendants' request to dismiss Plaintiff's prayer
for punitive damages is DENIED.
SO ORDERED this

f

day of March 2014.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

VA