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Thompson v. Ross

September 30, 2010

PETER W. THOMPSON, PLAINTIFF,
v.
KENNETH M. ROSS, TIMOTHY P. MILLER, MORGAN STANLEY SMITH BARNEY FORMERLY DOING BUSINESS AS CITIGROUP GLOBAL MARKETS, INC. AND SHARI L. KACZMAREK DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT Pending now before the Court is MOTION OF DEFENDANTS MORGAN STANLEY SMITH BARNEY F/D/B/A CITIGROUP GLOBAL MARKETS, INC., TIMOTHY P. MILLER AND KENNETH M. ROSS TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6), with brief in support (Doc. Nos. 8 and 9), and PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' COLLECTIVE RULE 12(b)(6) MOTION TO DISMISS (Doc. No. 11).

Defendants filed a reply brief (Doc. No. 12), in which, inter alia, they requested oral argument. Argument on the motion to dismiss was heard on August 17, 2010. Both parties presented their positions skillfully and effectively. The motion is now ripe for disposition.

Background

The following facts are taken from Plaintiff's Complaint.*fn1

In general, the counts within Plaintiff's Complaint stem from what can be best described as the deterioration of a previous romantic relationship between Plaintiff and Defendant Kaczmarek and workplace disharmony between Plaintiff and Defendant Ross. According to Plaintiff, "[p]rior to the Spring of 2005, [Plaintiff] Thompson and Kaczmarek were romantically involved. [Plaintiff] ended the relationship and, as a result, Kaczmarek became intent on embarrassing [Plaintiff] in revenge." Doc. No. 1 at ¶ 11. At some point shortly after the conclusion of the relationship, Defendant Kaczmarek allegedly informed Defendant Ross that she had Plaintiff's personal laptop computer in her possession, and that the computer contained embarrassing information about Plaintiff. Id. at 12. In the late summer/early fall of 2006, Defendant Ross and Defendant Miller each allegedly contacted Defendant Kaczmarek in order to obtain the laptop, which Kaczmarek subsequently provided to Miller "on the understanding that Miller intended to have other Citi employees access, search, and extract data from the computer's hard-drive with the desired result of obtaining embarrassing information."*fn2 Id. at ¶ 18.

A civil action was initiated by Plaintiff against Defendant Ross in 2007 in the Court of Common Pleas of Allegheny County at Case No. GD 07-018537. That action involves a number of defamation per se claims against Ross for his "repeated defamatory and false assertions to [Plaintiff's] friends and co-workers. The specific defamatory comments included that [Plaintiff] was having sex with prostitutes and homosexuals, that he was a carrier of sexually transmitted diseases as a consequence, and that he infected another person, a co-worker, with his disease..." Doc. No. 1 at ¶ 10. Plaintiff believes that the laptop computer was provided to some unidentified Citi employee, who was able to "access, search, and extract from [Plaintiff's] computer's hard-drive the data containing the e-mails." Id. at ¶ 32.

In the instant Complaint, Plaintiff alleges violations of the Stored Communications Act ("SCA"),18 U.S.C. § 2701 et seq., against each Defendant at counts I - IV, violations of the Pennsylvania Stored Communications Act, 18 Pa.C.S. § 5741 et seq., against each Defendant at counts V - VII, claims of the common law tort of invasion of his privacy by intrusion into seclusion against all Defendants at counts IX - XII, and the common law tort of civil conspiracy against all Defendants at count XIII. Plaintiff brings counts I - IV under the Court's original jurisdiction pursuant to 28 U.S.C. § 1331, and counts V - XIII under the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367. See Doc. No. 1 at ¶¶ 6 - 7.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure to state a claim upon which relief can be granted. With a motion to dismiss, "'courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In making this determination, a court must engage in a two part analysis. Ashcroft v. Iqbal, --- U.S. ----, ---- - ----, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Fowler, 578 F.3d at 210-11. First, the court must separate factual allegations from legal conclusions. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Second, the court must determine whether the factual allegations are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. Determining plausibility is a "context-specific task" that requires the court to "draw on its judicial experience and common sense." Id. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. See id.

Analysis

A. Counts I - III and V - VII: The Stored Communications Act and Parallel State Law Claims

As noted above, Plaintiff alleges four counts under the federal Stored Communications Act, 18 U.S.C. §§ 2701 et seq., and four counts under the Stored Communications provision of the Pennsylvania Wiretapping Act, 18 Pa.C.S. §§ 5741 et seq., singly directing each count against a respective Defendant. Doc. No. 1. Generally speaking, Title II to the Electronic Communications Privacy Act of 1986 ("ECPA"), also known as the Stored Wire and Electronic Communications and Transactional Records Access (the "Stored Communications Act" or "SCA"), 18 U.S.C. §§ 2701-2711, bars unauthorized access to stored electronic communications. Section 2701 includes in relevant part that whoever:

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system...."

Id. § 2701(a). In addition to criminal penalties, the SCA provides a civil cause of action for "any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter." Id. § 2707(a). Because the language of the Pennsylvania statute mirrors that of the federal Stored Communications Act, it is interpreted in the same way, and the analysis and conclusions herein apply equally to this state law claim. See Fraser v. Nationwide Mutual ...


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