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Brooks v. AM Resorts, LLC

United States District Court, Third Circuit

July 3, 2013

AM RESORTS, LLC, Defendant.



Plaintiff Douglas Brooks brings suit against Defendant AM Resorts, LLC (“AM Resorts”). Brooks alleges that AM Resorts gained unauthorized accessed to his computer and email account in violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq., and the Pennsylvania counterpart to the SCA, 18 Pa. Cons. Stat. Ann. § 5741, et seq. I exercise jurisdiction over Brooks’ federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Brooks’ state law claim pursuant to 28 U.S.C. § 1367. The parties have filed cross-motions for summary judgment. Brooks has filed a motion for partial summary judgment on the issue of liability, arguing that AM Resorts is indisputably liable on the claims brought against it and that trial should be set solely on the issue of damages. AM Resorts has filed a motion for summary judgment in its favor on all claims. For the reasons set forth below, I will deny Brooks’ motion for partial summary judgment. Additionally, I will deny AM Resorts’ motion for summary judgment on the Stored Communications Act claim and the Pennsylvania counterpart to the Stored Communications Act claim. I will grant AM Resorts’ motion for summary judgment on the Computer Fraud and Abuse Act claim.


Plaintiff Douglas Brooks is a former employee of Defendant AM Resorts. On March 4, 2010, AM Resorts terminated Brooks’ employment with the company. After he was fired, Brooks engaged in an email exchange with his lawyers to discuss attorney-client privileged matters pertaining to the termination (the “privileged email exchange”). Neither Brooks nor his attorneys shared this privileged email exchange with any third party. However, on March 21, 2010, Brooks received an email from his former supervisor at AM Resorts, Javier Estelrich, that stated, “Doug, I got your email. Tomorrow our lawyers will get in touch either with your lawyer or with you (in case it is not possible with them).” Pl.’s Ex. 5 at 3. Attached to Estelrich’s email was the privileged email exchange between Brooks and his lawyers.

The header to Estelrich’s March 21, 2010 email to Brooks listed the Internet Protocol (“IP”) address This same IP address,, appeared in the header of an email Estelrich received on March 10, 2010 from AM Resorts employee, Pepe Morell. Brooks had a Microsoft Hotmail email account. A log from the Microsoft Corporation lists the dates and times that any user accessed, or attempted to access, Brooks’ personal email account in the month of March 2010. This log indicates that someone with the IP address accessed Brooks email account on March 19, 2010 at 10:53 p.m. and on March 20, 2010 at 5:43 a.m.

During his employment with AM Resorts, Brooks had given his personal email address and password to AM Resorts because he had experienced difficulty accessing and using his work email account. Additionally, Brooks had allowed Am Resorts to install a program called TeamViewer on his personal desktop computer. TeamViewer is a program designed to allow technicians to diagnose problems on a user computer from a remote location. TeamViewer enables an individual to remotely access and control a computer. Brooks alleges that AM Resorts remotely accessed his computer after his termination through the TeamViewer program and accessed his personal email account, either independently of accessing his computer or, while it was remotely controlling his computer through TeamViewer. Brooks does not know how to access his computer remotely through TeamViewer. There is evidence that someone accessed Brooks’ computer via TeamViewer on four separate occasions after his termination.

The parties have presented dueling forensic expert reports. All experts agree that IP addresses can be static or dynamic. Static IP addresses are assigned by the Internet Service Provider (“ISP”) to an individual or company for a certain period of time. Dynamic IP addresses can change at any time because they are not assigned by the ISP to an individual or company for any certain period of time. All experts agree that it is unknown whether IP address is a static or dynamic address. Brooks’ expert, Brian Harris, concludes that Pepe Morell, an employee of AM Resorts, accessed Brooks’ email account. This conclusion is based, to a large extent, on the fact that Morell sent an email from the IP address to Estelrich on March 10, 2010 and that same IP address appeared in the header of the March 21, 2010 email sent from Estelrich to Brooks, which contained the privileged email exchanged between Brooks and his lawyers. Additionally, Harris concludes that AM Resorts accessed Brooks’ desktop computer through TeamViewer, a program that it installed on Brooks’ computer. AM Resorts’ experts, Jerry Saperstein and Louis Cinquanto, conclude that there is not enough evidence to link AM Resorts to the IP address because it is unknown whether the IP address is dynamic or static, the parties never subpoenaed the internet service provider to obtain the name of the person or company that was issued the IP address on a specific date and time, and that IP address may have been used by many people at the same time making it impossible to determine the identity of the person who accessed Brooks’ email account. Additionally, AM Resorts’ experts conclude that there is insufficient evidence to link any TeamViewer access of Brooks’ computer to AM Resorts. Thus, the parties’ experts reach opposing conclusions.

After Brooks received the March 21, 2010 email from Estelrich that contained the privileged email exchange between Brooks and his attorneys, Brooks contacted local law enforcement and the Office of Homeland Security to report that his private email account had been accessed by AM Resorts without his authorization. On February 9, 2011, Brooks filed this Complaint against AM Resorts. There is no evidence in the record that Brooks incurred any expenses related to AM Resorts alleged unauthorized access of his computer prior to the filing of the Complaint. In October 201l, Brooks retained Brian Harris as forensic expert. Harris examined Brooks’ computer and server, and a forensic copy of Estelrich’s hard drive. Harris focused his investigation on whether the allegations in Brooks’ Complaint could be substantiated, and extensively discussed the Complaint in the expert report he produced. There is no evidence that Harris spent any time investigating, or responding to, damage to Brooks’ computer that occurred as a result of AM Resorts unauthorized access. Harris sent the following invoices to the attorney representing Brooks’ in this litigation:

Invoice Date




9/11 Prepare declaration



Forensic Labor (hours) 11/16 – produced IP addresses



Forensic Labor (hours) Write report

$2, 500.00


Forensic Labor (hours)1/2 - Sent additional Team View logs to opposing counsel



Forensic Labor (hours) 1/29 – Deutchman deposition prep call with attorney



Forensic Labor (hours) 1/31 – Harris deposition prep call with attorney



Forensic Labor (hours) – 2/1 – Harris deposition

$1, 400.00


Gas, Tolls, Parking – 2/1 Harris deposition



Forensic Labor (hours) 2/18 – Looking at TV logs, research calls; TC with TV (Germany); 2/28 reviewing TV records

$1, 000.00

The total amount of these invoices is $7, 225.00.


Summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.

The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). After the moving party has met its initial burden, the nonmoving party must then “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. In ruling on a motion for summary judgment, the court must draw all inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not “rely merely upon bare assertions, conclusory allegations or suspicions” to support its claims. Fireman’s Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

In essence, the inquiry at summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as ...

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