United States District Court, E.D. Pennsylvania
For TALBOT TODD SMITH, Plaintiff: VIRGINIA L. HARDWICK, LEAD ATTORNEY, HARDWICK LAW OFFICES LLC, DOYLESTOWN, PA.
For UNILIFE CORPORATION, UNLIFE MEDICAL SOLUTIONS, INC., ALAN SHORTALL, RAMIN MOJDEH, Defendants: CHRISTOPHER J MORAN, JAMIE NICOLE ROTTEVEEL, WILLIAM A. LIESS, PEPPER HAMILTON LLP, PHILADELPHIA, PA.
MEMORANDUM RE MOTION TO DISMISS DEFENDANTS' COUNTERCLAIMS
Michael M. Baylson, United States District Judge.
In this contentious " whistleblower" action arising under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A, and the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 78u-6, Plaintiff has moved (ECF No. 85) to dismiss with prejudice Defendants' counterclaims alleging Plaintiff (1) violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. § 5701 et seq. (the " Wiretapping Act" ) and (2) tortiously invaded the privacy interests of Defendant Dr. Ramin Mojdeh.
I. Factual and Procedural Background
The counterclaims arise from a June 21, 2012, recording made by Plaintiff of a conversation between Plaintiff and Dr. Mojdeh in a private office at the Unilife premises. The recording allegedly occurred without Dr. Mojdeh's knowledge or consent, and Defendants initiated a state criminal proceeding against Plaintiff for violation of the Wiretapping Act.
The background of this case has been set forth in prior opinions regarding Plaintiff's amendment of his complaint, Smith v. Unilife Corp., No. 13-5101, 2014 WL 443114 (E.D. Pa. Feb. 4, 2014) (ECF No. 18), Plaintiff's motion for contempt and to amend the Protective Order, Smith v. Unilife Corp., No. 13-5101, 2014 WL 6070697 (E.D. Pa. Nov. 13, 2014) (ECF No. 115), and Defendants' motion to quash a third party subpoena, Smith v. Unilife Corp., 2014 WL 6676738 (E.D. Pa. Nov. 24, 2014) (ECF No. 123). Plaintiff, a former employee of Defendant Unilife Medical Solutions, Inc. (together with Defendant Unilife Corporation, the " Unilife Defendants" ), alleges discriminatory and retaliatory termination by Defendants because of Plaintiff's opposition to, and protected disclosures relating to, alleged shareholder fraud and Unilife's failure to comply with certain Food and Drug Administration requirements.
On June 20, 2014, Defendants moved to file an amended answer to assert counterclaims against Plaintiff for violation of the Wiretapping Act and tortious invasion of Dr. Mojdeh's privacy (ECF No. 54). Plaintiff did not oppose Defendants' motion. On July 28, 2014, the Court granted Defendants' unopposed motion to amend (ECF No. 68).
On September 26, 2014, Plaintiff moved to dismiss Defendants' counterclaims with prejudice for failure to state a claim under Fed.R.Civ.P. 12(b)(6) (ECF No. 85). Plaintiff contends Defendants have pleaded insufficient facts to state a claim under the Wiretapping Act because (i) under Commonwealth v. Spence, 91 A.3d 44, 47 (Pa. 2014), a cell phone is not a " device" for purposes of the Wiretapping Act; (ii) there was no " oral communication" under the Wiretapping Act because Defendants lacked a justifiable expectation of privacy in the conversation; and (iii) the Unilife Defendants have no claim because only individuals, not corporations, can have the reasonable expectation of privacy required under the Wiretapping Act. Plaintiff also argues Defendants failed to state a claim for tortious invasion of privacy because no one other than Plaintiff ever heard the recording Plaintiff made of the conversation with Dr. Mojdeh. Defendants
opposed Plaintiffs' motion (ECF No. 96), contending their pleading was sufficient to state both claims. Plaintiffs replied (ECF No. 102), and Defendants submitted a sur-reply (ECF No. 108).
A. Motion to Dismiss Standard