DTV Response to Motion to dismiss 2512(1)

[rockfordpi]

Does anyone know if DTV challenged any of the recent successful motions to dismiss count 3 with an appeal or amended complaint and if they did, what the outcome was?

As I understand it, the current state of the still evolving case law is that Dave can't win simply on possession, he must prove use. Is that indeed correct?

[Served by DTV]

If you research the Bennett Leve case out of Florida you will see that the Judge granted the motion to dismiss count III in that case. this ruling can bee seen by clicking on the 2512_motion then look under order
Bennett Leve Ruling (http://wumarkus.com/dtv/files/)

I believe in the Nicholson case (South Carolina} where Nicholson filed a Motion to dismiss count III of the complaint, Daves attorneys agreed to drop count III prior to the Judge ruling on the motion. I believe Daves attorneys did the prior to the Judge ruling to prevent a precedent of Judges who have ruled against simular motions against count III.


Nicholson Stipulation (http://wumarkus.com/dtv/files/)

Look for Nicholson stipulation at the bottom of the page. I hope these cases can help someone out and ask that if anyone finds simular ruling please contact WuMarkus so he can post the rulings on the webpage that he has been so kind to set up.

If we stand a chance to fight we must alldo a little research to help each other out and keep attorneys fees down!!

[Mr G]

Here is a VA case that has a response to Motion to Dismiss but that is where this case stands for now.

http://www.vaweb.net/

[rob13572468]

yes, the vaweb site has a copy of the dtv response to the motion to dismiss count 3. i have looked over the briefs and can see that in certain cases the court may not dismiss. the jist of the matter is that under the wiretap laws, there was not always civil cause of action under 2512, but congress amended the laws in 1986 to include civil penalties under all sections of the act. That in itself was not the deciding factor but the fact that dtv has filed certain suits where they not only alledge that the devices were purchased and possessed, but also that the defendant knowingly used the devices. It is that additional claim that allows civil restitution under 2512. Dtc also presents 4 examples of case law in the brief that supports their position.

The suits that i have looked at do not have that claim included and because of that and the fact that other courts have dismissed, thst count will most likely be dismissed. However the very fact that they can simply include a claim of signal interception will allow 2512 to stand and not be dismissed. The courts allows this because the rule of law states that motion to dismiss can only be granted if there is just about no possibility that dtv's claims can be true. since discovery does not take place until later on in the civil process, the court will take the position that dtvs claims have merit and deny the motion to dismiss.

The end result is that if the suits start having a claim that you intercepted the signal, then you will not be able to get 2512 dismissed, but if possession is only claimed then 2512 will be dismissed.


Now keep in mind that this does not mean that dave has a better position or is more likely to win, just that the claim will end up being dismissed later on if/when there is found to be no evidence other than shipping records.


edit: one more thing; the deciding factor seems to be the evidence presented at the beginning of the suit; the fact that dtv says that they have shipping info/transaction details that prove that a defendant received a device... the problem is that they need to make a good arugment that they have evidence to the fact that the defendant actually circumvented and intercepted the signal so it becomes a matter of presenting the fact that no evidence could have been obtained from the raids that could show that the defendant is guilty of reception. So far this makes a good case for the other courts to dismiss as well but the newest response to the motion to dismiss is much longer than the one used in dtv vs Leve indicating that dave may have revised their argument. It will be interesting to see the decision in the vaweb case....