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AMERICAN CABLEVISION OF QUEENS v. MCGINN

March 23, 1993

AMERICAN CABLEVISION OF QUEENS, Plaintiff,
v.
JAMES McGINN, Defendant.



The opinion of the court was delivered by: AZRACK

 AZRACK, United States Magistrate Judge:

 This lawsuit was assigned to the Honorable Denis R. Hurley, United States District Judge. By Stipulation dated September 22, 1992, the parties gave their consent to have this case presided over by me for all purposes, pursuant to 28 U.S.C. § 636(c). I conducted a non-jury trial on March 9, 1993.

 Immediately preceding trial, Mr. McGinn claimed that he was never properly served in this action. The Federal Rules of Civil Procedure are clear that a motion to dismiss for insufficiency of service of process pursuant to Rule 12(b)(5) is a waivable defense. See Federal Rule of Civil Procedure 12(h). Rule 12(h) states, in pertinent part, "A defense of insufficiency of process is waived . . . if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." Mr. McGinn did not raise insufficiency of process in the Answer which he submitted in this action. Nor did he submit any amended pleading raising the defense within the period permitted by Federal Rule of Civil Procedure 15(a). Furthermore, Mr. McGinn appeared at pre-trial conferences before me in this case, and actively participated in discovery with plaintiff. Thus, it is clear that Mr. McGinn waived the defense pursuant to Rule 12(h) and could not properly raise it at trial as a defense to this action. See Datskow v. Teledyne Continental Products Div., 899 F.2d 1298, 1303 (2d Cir.) (where by his conduct defendant waived defense of insufficiency of process by attending a conference with the magistrate and participating in scheduling discovery and motion practice, even though defense was raised in defendant's answer), cert. denied, 498 U.S. 854, 111 S. Ct. 149, 112 L. Ed. 2d 116 (1990).

 Therefore, based on the evidence that was presented at trial, what follows are my Findings of Fact, Conclusions of Law, and Order for the Entry of Judgment.

 FINDINGS OF FACT

 1. First, I find that on June 26th and 27th, 1991, defendant James McGinn was a Subscriber of cable television services, pursuant to an agreement with plaintiff American Cablevision of Queens (now Time Warner Cable). Installation of three converter boxes took place in Mr. McGinn's home, 75-15 61st Street, Glendale, New York, in or about May 1988.

 2. I find that Exhibits 2, 3, and 4, presented at trial, are the converter boxes that were installed in Mr. McGinn's home and were removed by American Cablevision service technicians on or about July 7, 1991. The serial numbers of these converter boxes are 0708196819, 0708455895, and 0708196782, respectively. Exhibits 2A, 3A, and 4A which are plaintiff's records pertaining to Mr. McGinn's cable television service, indicate that the boxes installed in his home bore the same serial numbers. No evidence was presented to refute that Exhibits 2, 3, and 4 were in fact the converter boxes in defendant's home.

 4. On June 27, 1991, American Cablevision exercised an electronic countermeasure throughout its cable system. As testified at trial, the countermeasure is a software program designed to locate and disable cable converter boxes which are being operated with pirate firmware. In layman's terms, firmware is the computer chip that receives signals from the cable company's command computer.

 5. The evidence indicates that subsequent to the use of the countermeasure, a call was received by American Cable from the McGinn household, complaining that at least one television was experiencing snow and no picture. An appointment was set for the service technicians to visit the McGinn household on July 7, 1991. The service technicians visited the house, retrieved the three converter boxes and replaced them with new ones.

 6. After examining the converter boxes, I find that all three have physical attributes which the expert witnesses testified are indicia of tampering. All three boxes had security seals which were cut; all three had abnormally worn screw heads; and all three had pry marks on the outside of the box.

 7. I find that the testimony of the experts produced by plaintiff establishes that the results of the tests performed on defendant's converter boxes showed that the converter boxes contained pirate firmware at the time of the June 27, 1991 exercise of the electronic countermeasure. The memory in the converter boxes contained certain data or information, such as the birthdate of the engineer who wrote the countermeasure program, and the Block Four program, which disabled the converter boxes. I fully credit the testimony of the experts, which established that there is no way for the memory to hold this information unless the converter held pirate firmware when the countermeasure was used. Absolutely no evidence was presented to suggest otherwise.

 8. While Mr. McGinn claimed that only one converter box failed to work after June 27, 1991, I find that the documentation of the test results firmly establishes that all three converter boxes contained pirate firmware on June 27, 1991. Mr. McGinn could not offer an explanation of why anyone at American Cablevision would have a motive to tamper ...


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