Telquist McMillen Clare PLLC v. Clare, No. 4:2018cv05045 - Document 34 (E.D. Wash. 2018)
Court Description: ORDER GRANTING 20 Defendants' Motion to Dismiss for Failure to State a Claim; DENYING as moot 22 Plaintiffs' Motion to Certify; DENYING as moot 28 Defendants' Motion to Strike ; DENYING as moot 30 Defendants' Motion to Expedite. Signed by Judge Stanley A Bastian. (SK, Case Administrator)
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Telquist McMillen Clare PLLC v. Clare Doc. 34 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Sep 07, 2018 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 7 8 TELQUIST McMILLEN CLARE PLLC, No. 4:18-cv-05045-SAB 9 a Washington Professional Limited 10 Liability Company, and ORDER GRANTING 11 ANDREA CLARE, individually, DEFENDANTS’ MOTION TO 12 Plaintiffs, 13 v. DISMISS 14 KEVIN CLARE, individually, and 15 BENJAMIN DOW, individually, 16 Defendants. 17 Before the Court is Defendants’ Motion to Dismiss, ECF No. 20. The Court 18 held a hearing on the motion on September 5, 2018. George Telquist appeared on 19 behalf of Plaintiffs, and John Riseborough appeared on behalf of Defendants. The 20 Court took the matter under advisement. 21 After careful consideration of the parties’ briefing and oral presentation, the 22 Court grants Defendants’ motion. 23 24 STATEMENT OF FACTS The facts of this case stem from the unsuccessful marriage between Kevin 25 and Andrea Clare. Andrea alleges that, since November 2015, Kevin was not 26 authorized to access her email, telephone, or text messages. ECF No. 18 ¶ 3.7. 27 Andrea claims that during the time that the couple lived together, and up to 28 February 6, 2016, Kevin insisted upon access to Andrea’s personal email, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 1 Dockets.Justia.com 1 telephone and text messages. Id. ¶ 3.1. Andrea alleges that, despite her attempts to 2 block Kevin from gaining access, Kevin obtained access, viewed, and intercepted 3 Andrea’s emails, telephone, and text messages. Id. ¶ 3.3. Andrea moved out of the 4 family residence on February 6, 2016. Id. ¶ 2.4. 5 On May 12, 2016, Andrea filed a Petition for Dissolution of Marriage in 6 Walla Walla County, and later filed a similar action in Franklin County. Id. ¶ 2.5. 7 Kevin retained attorney Benjamin Dow to represent him throughout the dissolution 8 proceedings. Id. ¶ 2.6. 9 Andrea alleges that from 2015 to 2018, Kevin used Andrea’s email 10 credentials to access her work email; reviewed private and confidential 11 communications between Andrea and her attorneys of record in her dissolution 12 case against Kevin; and shared this information with Benjamin Dow, who knew 13 that Kevin was not authorized to access such email communications. Id. ¶¶ 3.1114 3.14, 3.19, 3.20. 15 On July 17, 2018, Telquist McMillen Clare, PLLC (Andrea’s employer), and 16 Andrea Clare (“Plaintiffs”) filed a First Amended Complaint against Kevin Clare 17 and Benjamin Dow (“Defendants”), alleging violations of the Electronic 18 Communications Privacy Act, 18 U.S.C. § 2511 (“ECPA”); Stored 19 Communications Act, 18 U.S.C. § 2701 (“SCA”); and the Washington Right of 20 Privacy Act, Wash. Rev. Code § 9.73.030 (“WRPA”). ECF No. 18. 21 22 STANDARD On a Rule 12(b)(6) motion to dismiss for failure to state a claim, all 23 allegations of material fact shall be accepted as true and construed in the light most 24 favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 25 337-38 (9th Cir. 1996). However, the Court is not required to accept as true a 26 “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 27 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 28 The Complaint “must contain sufficient factual matter, accepted as true, to state a ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 2 1 claim to relief that is plausible on its face.” Id. at 678. The plausibility requirement 2 is satisfied when the plaintiff “pleads factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 4 Absent facial plausibility, Plaintiffs’ claims must be dismissed. Twombly, 550 U.S. 5 at 570. 6 When a complaint or claim is dismissed, “a district court should grant leave 7 to amend even if no request to amend the pleading was made, unless it determines 8 that the pleading could not possibly be cured by the allegation of other facts.” 9 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). DISCUSSION 10 11 Defendants argue that Plaintiffs’ First Amended Complaint fails to allege a 12 plausible claims under the ECPA, WRPA, and the SCA. 13 Electronic Communications Privacy Act 14 In 1986, Congress passed the ECPA “to afford privacy protection to 15 electronic communications.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 16 (9th Cir. 2002). The ECPA encompasses two distinct sets of claims. Under Title I 17 of the ECPA, the Wiretap Act makes it an offense to “intentionally intercept . . . 18 any wire, oral, or electronic communication.” 18 U.S.C. § 2511. Under Title II of 19 the ECPA, the SCA is designed to “address access to stored wire and electronic 20 communications and transactional records.” 18 U.S.C § 2701(a). 21 Plaintiffs allege that Defendants intentionally intercepted, disclosed, and 22 used the contents of an electronic communication in violation of the ECPA. Such a 23 claim is, therefore, brought under the Wiretap Act. 24 The Wiretap Act prohibits any person from: 25 (a) intentionally intercept[ing], endeavor[ing] to intercept, or procur[ing] 26 any other person to intercept or endeavor to intercept, any wire, oral, or 27 electronic communication; 28 ... ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 3 1 (c) intentionally disclos[ing], or endeavoring to disclose, to any other person 2 the contents of any wire, oral, or electronic communication, knowing or 3 having reason to know that the information was obtained through the 4 interception of a wire, oral, or electronic communication; 5 (d) intentionally us[ing], or endeavor[ing] to use, the contents of any wire, 6 oral, or electronic communication, knowing or having reason to know 7 that the information was obtained through the interception of a wire, oral, 8 or electronic communication. 9 18 U.S.C. § 2511(1)(a), (c), (d). “Any person whose wire, oral, or electronic 10 communication is intercepted, disclosed, or intentionally used in violation of [the 11 Wiretap Act],” may bring a civil action to recover damages. 18 U.S.C. § 2520(a). 12 At issue is whether Plaintiffs’ First Amended Complaint sufficiently alleges 13 that Defendants “intercepted” electronic communications within the meaning of the 14 federal statute. The statute defines the term “intercept” as “the aural or other 15 acquisition of the contents of any wire, electronic, or oral communication through 16 the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). 17 The Ninth Circuit has interpreted the term “intercept” much more narrowly. 18 To be intercepted within the meaning of the Wiretap Act, an electronic 19 communication must have been “acquired during transmission, not while it is in 20 electronic storage.” Konop, 302 F.3d at 878. This definition requires acquisition 21 “contemporaneous with transmission.” Id. 22 Plaintiffs’ First Amended Complaint fails to allege a plausible claim that 23 Defendants “intercepted” Plaintiffs’ electronic communications. At best, Plaintiffs’ 24 allegations raise an inference that Kevin viewed Andrea’s email and text messages 25 after they were already received. There are no facts to suggest Kevin acquired 26 Andrea’s electronic communications “contemporaneous with [their] transmission.” 27 Konop, 302 F.3d at 878. Thus, Plaintiffs’ First Amended Complaint fails to state a 28 plausible claim under the ECPA. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 4 1 2 Stored Communications Act The SCA creates a private right of action against anyone who “(1) 3 4 intentionally accesses without authorization a facility through which an electronic 5 communication service is provided; or (2) intentionally exceeds an authorization to 6 access that facility; and thereby obtains, alters, or prevents authorized access to a 7 wire or electronic communication while it is in electronic storage in such system.” 8 18 U.S.C. § 2701(a); 2707. The SCA does not define the term “facility,” but it does 9 define the term “electronic communication service” as “any service which provides 10 to users thereof the ability to send or receive wire or electronic communications.” 11 18 U.S.C. § 2510(15). At issue is whether Plaintiffs have sufficiently alleged that Kevin 12 13 intentionally accessed, without authorization, a “facility through which an 14 electronic communication is provided.” 18 U.S.C. § 2701(a). The Court finds 15 Plaintiffs have failed to do so. See Cousineau v. Microsoft Corp., 6 F.Supp.3d 16 1167, 1174-75 (W.D. Wash. 2014) (holding that a user’s smart phone was not a 17 “facility” within the meaning of the SCA because it did not provide electronic 18 communication services in a “server-like fashion”); In re iPhone Application 19 Litigation, 844 F.Supp.2d 1040, 1057-58 (N.D. Cal. 2012) (holding that an 20 individual’s personal computer does not “ ‘provide an electronic communication 21 service’ simply by virtue of enabling use of electronic communication services.”). 22 Thus, Plaintiff’s First Amended Complaint also fails to state a plausible claim 23 under the SCA. 24 Washington Right of Privacy Act1 The Court has supplemental jurisdiction over Plaintiffs’ WRPA claim. 28 25 26 U.S.C. § 1367(a). Having dismissed Plaintiffs’ federal claims, however, the Court 27 1 The Court declines to address whether Plaintiffs’ First Amended Complaint 28 makes a plausible claim under the WRPA. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 5 1 also dismisses Plaintiffs’ WRPA claim for lack of jurisdiction. 28 U.S.C. § 2 1367(c); Sial v. AT&T Services, Inc., No. C18-0458JLR, 2018 WL 3364630, at *3 3 (W.D. Wash. July 10, 2018) (“There is a strong preference in the Ninth Circuit for 4 declining to exercise supplemental jurisdiction once the federal claim is 5 dismissed.”). CONCLUSION 6 For the foregoing reasons, the Court dismisses Plaintiffs’ First Amended 7 8 Complaint. Nonetheless, Plaintiffs are granted leave to file an amended complaint. Accordingly, IT IS HEREBY ORDERED: 9 10 1. Defendants’ Motion to Dismiss, ECF No. 20, is GRANTED. 11 2. Plaintiffs shall file any amended complaint no later than October 10, 12 2018. 13 2. Plaintiffs’ Motion for Certification, ECF No. 22, is DENIED as moot. 14 3. Defendants’ Motion to Strike, ECF No. 28, and related Motion to 15 Expedite, ECF No. 30, are DENIED as moot. 16 IT IS SO ORDERED. The District Court clerk is hereby directed to enter 17 this Order and to provide copies to counsel. 18 DATED this 7th day of September 2018. 19 20 21 22 23 24 25 Stanley A. Bastian United States District Judge 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS ^ 6
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