Steele v. Radioshack Corporation
ORDER Denying 9 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOSEPH P. STEELE,
Case No: 11-14021
Honorable Victoria A. Roberts
a Delaware Corporation,
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant’s Motion for Summary Judgment pursuant to Fed.
R. Civ. P. 12(b)(6). Doc. # 9.
The Court DENIES Defendant’s motion.
This controversy arises from Defendant’s disclosure of photographs to Plaintiff’s
employer, that were on Plaintiff’s cellular phone. Plaintiff went to Defendant’s store to
purchase a new cellular phone to replace his personal phone. During the course of the
transaction, Plaintiff allowed Defendant to access his cellular phone to transfer data,
including personal information, from the old phone to the new one. Doc # 1 Compl. ¶¶
11-12. Additionally, Plaintiff left his old phone with Defendant for disposal or recycling,
transfer took place and Plaintiff left the store, Defendant again accessed Plaintiff’s
cellular phone, reviewed the personal information contained in it, including pictures
taken at Plaintiff’s worksite, and forwarded those pictures to Plaintiff’s employer. Id. ¶¶
15-16. Plaintiff was fired for having a recording device on him during work hours. Id. ¶¶
18-19; Doc # 11 at 7.
Defendant removed this case from Wayne County Circuit Court and filed a
motion for summary judgment citing a 12(b)(6) standard – not the standard of review for
a summary judgment motion – which has caused inaccurate, insufficient, and jumbled
arguments from both sides. Defendant’s motion states that Plaintiff failed to allege that
the content of his cell phone was a “right possessed by Plaintiff to keep the subject
matter private or that the subject matter was obtained through some method
objectionable to a reasonable person.” Doc. # 9 ¶ 6. Defendant supports this assertion
by stating, in essence, that since Plaintiff handed over his phone to Defendant, he had
no right to keep the content private. Id. ¶ 7. Furthermore, Plaintiff did not allege an
offensive intrusion, just the fact of disclosure. Id. ¶ 8. Defendant’s brief argues that,
inter alia, Plaintiff cannot “establish a claim of intrusion upon seclusion when he
voluntarily provided the ‘private’ content to Defendant.” Id. at 5.
Plaintiff responds by stating that he was told that Defendant would erase his data
from his old phone, and recycle it. Doc. # 11 ¶ 4; see also Doc. # 1 Compl. ¶¶ 13, 2022. Plaintiff goes on to make various arguments dealing with the scope of consent of
the transfer, as opposed to any insufficiency in the pleadings. See Doc. 11 ¶¶ 15-21.
This is best illustrated in paragraph 21 of Plaintiff’s response: “[t]he defendant’s [sic]
motion for summary disposition pursuant [to] Fed. R. Civ P. [sic] 12(b)6) [sic] is
improper as plaintiff [sic] has made a prima facia [sic] case for the cause of action of
intrusion upon seclusion and there are facts in dispute that are to be determined by a
jury.” Id. ¶ 21. Plaintiff’s brief addresses various elements of the claim, stating primarily
that these elements are a question of fact for a jury to decide – not that the original
Complaint pled sufficient facts to state a claim for relief.
Defendant’s reply brief, Doc. # 12, is entitled “Defendant RadioShack
Corporation’s Reply Brief in Support of its Rule 12(b)(6) Motion to Dismiss [emphasis
added].” Defendant produces a step-by-step argument that Plaintiff failed to allege
sufficient facts to sustain a claim per the heightened pleading requirements of Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937 (2009) – the very first time that these landmark cases, which
provide the essential tests for a modern 12(b)(6) motion to dismiss, are discussed.
However, the majority of the argument in this reply brief is not contained in the original
motion, which further confuses the Court as to what Defendant is arguing. Had this
analysis been in the original motion, it would have informed both the Court, as well as
Plaintiff, of Defendant’s true argument – that Plaintiff’s Complaint fails to allege sufficient
facts to state a claim based on the current pleading requirements outlined in Twombly
and Iqbal – not that there was no material question of fact because Plaintiff consented
to the intrusion.
STANDARD OF REVIEW
Defendant submitted a motion for summary judgment pursuant to Fed. R. Civ. P.
12(b)(6. However, a motion for summary judgment is brought under Fed. R. Civ. P. 56,
alleging that there are no questions of material fact, and that the movant is entitled to
judgment as a matter of law. A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is a
motion seeking judgment for “failure to state a claim upon which relief can be granted”
in the pleadings. Fed. R. Civ. P. 12(b)(6). Traditionally, a 12(b)(6) motion must be filed
prior to the submission of the first responsive pleading; this motion is used to test the
sufficiency of the complaint as a matter of law. Fed. R. Civ. P. 12(b). However, Fed. R.
Civ. P. 12(h)(2) allows for a motion for failure to state a claim to be submitted, inter alia,
through a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). Fed. R.
Civ. P. 12(h). Defendant fails to use the appropriate mechanism to file its motion.
A motion for summary judgment is appropriate if no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56. A fact is “material” and precludes a grant of summary judgment if “proof of that fact
would have [the] effect of establishing or refuting one of the essential elements of the
cause of action or defense asserted by the parties, and would necessarily affect
application of appropriate principle[s] of law to the rights and obligations of the parties.”
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). Summary judgment is not
appropriate if the evidence indicates that a reasonable trier of fact could rule in favor of
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587
(1986). “The Court must consider all pleadings, depositions, affidavits, and admissions
on file, and draw all justifiable inferences in favor of the party opposing the motion.”
Golliday v. Chase Home Fin., LLC, 761 F.Supp.2d 629, 634 (W.D. Mich. 2011) (citing
Matsushita, 475 U.S. at 587 and Smith v. Williams-Ash, 520 F.3d 596,599 (6th Cir.
Alternatively, when deciding a 12(b)(6) motion to dismiss, the Court looks at the
pleadings to see if sufficient facts have been alleged to state a claim. For the purposes
of this motion, “the court must construe the complaint in the light most favorable to the
plaintiff, [and] accept all factual allegations as true. . . .” Cline v. Rogers, 87 F.3d 176,
179 (6th Cir. 1996); see also Segal v. Fifth Third Bank, N.A., 581 F.3d 305 (6th Cir.
The traditional notion of notice pleading has been recently tempered through the
holdings in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). These cases establish a twostep approach for a motion to dismiss. First, the court must take all factual allegations
as true, noting however, that legal conclusions are not entitled to the presumption of
truth. Ashcroft, 129 S.Ct. at 1949-50. Second, the complaint must state a claim that is
plausible, not merely possible, in order to avoid dismissal. Id. at 1950. Additionally, the
court must rely on “judicial experience” and “common sense” when deciding a 12(b)(6)
motion to dismiss. Id. at 1949; see also South Cherry Street, LLC v. Hennessee Group
LLC, 573 F.3d 98, 110 (2d Cir. 2009), Howard v. City of Girard, Ohio, 2009 WL
2998216, *2 (6th Cir 2009).
Notably, a motion to dismiss must be converted to a motion for summary
judgment if it relies on matters outside the pleadings. Fed. R. Civ. P. 12(d). Defendant
relies only on the pleadings, and presents no outside facts to support its motion;
therefore, Defendant is not entitled to have its motion to dismiss converted into a motion
for summary judgment.
There has been little – perhaps no – discovery conducted in the case. See Doc.
#7 Rule 26(f) Disc. Plan. The complaint and Plaintiff’s response to the motion suggest
there are questions of fact for a jury to decide, including, but not limited to, the scope of
consent given by Plaintiff to Defendant regarding access to his mobile device, whether
as if Plaintiff had a reasonable expectation of privacy after being told that his phone
would be destroyed and/or recycled after he relinquished the phone to Defendant.
Because these questions of fact exist, and considering the limited discovery to date, the
Court DENIES Defendant’s Motion for Summary Judgment under Fed. R. Civ. P. 56.
Similarly, the Court finds that Plaintiff pled sufficient facts to sustain a claim for
common law intrusion upon seclusion. To sustain this claim, Plaintiff must prove three
elements: (1) the existence of a secret and private subject matter, (2) a right possessed
by the plaintiff to keep that subject matter private, and (3) defendant obtained
information about that subject matter through a method objectionable to a reasonable
person. Tobin v. Civil Service Comm., 416 Mich. 661, 672 (1982). These elements are
not in dispute between the parties. See Doc. # 9, Def’s Mot. Summ. J.; Doc. # 11, Pl.’s
Defendant’s motion contends that Plaintiff has not pled facts sufficient to support
the second and third elements: that Plaintiff has a right to keep the subject matter
private, and that it was obtained through a method objectionable to a reasonable
person. Doc. # 9 ¶ 6. While both parties argue the first element of the claim in
subsequent briefs, the existence of a secret and private subject matter, Defendant’s
motion does not allege that this element has not been sufficiently pled. See id. This is
another deficiency in Defendant’s motion. Therefore, the Court dispenses with this
element; it was never put into question in the motion itself.
With respect to the second element, Plaintiff alleges that Defendant transferred
personal information contained on his old cellular phone into a new cellular phone. Doc
# 1 Compl. ¶ 11. Furthermore, Plaintiff alleges that the disposal of his phone would be
inference, and therefore, plausible, that Plaintiff possessed a right to keep that personal
– it says that a customer has no right to keep personal information private once he
allows RadioShack access to it during the course of business. If this Court embraces
this argument, then RadioShack would not have any liability for disclosing personal
credit card information it obtained while processing a sale. Customers routinely give
personal information in order to process transactions – information that they would
expect to be disposed of and kept private, not distributed to whomever the store feels
like giving it to.
While Defendant contends that Plaintiff’s information was no longer private due
to the transfer and subsequent relinquishment of the phone for disposal (see Doc. # 9
Def.’s Br. Supp. Mot. Summ. J. at 4-5), this is a question for the jury to decide. It would
be relevant to a motion for summary judgment, but not a motion to dismiss under
The third element of intrusion upon seclusion means Plaintiff must prove that the
method of access was objectionable to a reasonable person. To support this allegation,
Plaintiff states that, subsequent to the transaction in which Defendant was authorized to
access the cellular phone, Defendant again accessed the phone, reviewed information
contained in it, and disclosed that information to the public. Id. ¶ 16. Additionally,
Plaintiff alleges that this intrusion was highly offensive to him, and that it would be highly
offensive to any reasonable person. Id. ¶ 29.
Relying on judicial experience and common sense, and viewing the evidence in
the light most favorable to Plaintiff, the Court finds that Plaintiff sufficiently pled facts to
sustain this third element. A subsequent, unauthorized intrusion into an electronic
device that contains personal information, given to the intruder under the pretenses that
that device would be destroyed or recycled, or at the least, would be kept confidential
Again, Defendant emphasizes that Plaintiff consented to Defendant’s accessing
of his phone; however, as discussed supra, the scope of consent is a question of fact
for a jury to decide.
Defendant’s Motion for Summary Judgment (filed pursuant to Fed. R. Civ. P.
12(b)(6)) is DENIED.
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
The undersigned certifies that a copy of this document was served on the attorneys of record by
electronic means or U.S. Mail on all counsel of recordFebruary 3, 2012.
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