Sneed v. SEI/Aaron's, Inc.

Filing 21

ORDER granting in part and denying in part 7 Motion to Dismiss SEI/Aaron's, Inc. Answer due 1/2/2014. Signed by Judge Thomas W. Thrash, Jr on 12/18/2013. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GWENDOLYN SNEED
Individually, and on Behalf of all
Similarly Situated Persons,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-982-TWT

SEI/AARON'S, INC.
a franchisee of Aaron's, Inc.
doing business as
Aaron's Sales and Leasing,
Defendant.

OPINION AND ORDER

According to the Plaintiff’s complaint, a computer she leased from the
Defendant was secretly equipped with software that allowed the Defendant to
remotely access the Plaintiff’s private communications and information.

The

Defendant seeks to dismiss the complaint, arguing that the Plaintiff has not alleged
that her privacy was actually invaded. Because the Plaintiff could not know at this
stage if the Defendant actually accessed her private information, the Defendant’s
motion to dismiss should be denied with respect to the Plaintiff’s claims for invasion

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of privacy. However, the Plaintiff has not pled sufficient facts to state a claim for
intentional infliction of emotional distress, and that claim should be dismissed.
I. Background
The Plaintiff, Gwendolyn Sneed, leased a computer from Defendant
SEI/Aaron’s, Inc. (“SEI”). (Am. Compl. ¶¶ 1, 32). The computer came with PC
Rental Agent ® pre-installed. That software allows SEI to run “Detective Mode” on
its leased computers. Detective Mode runs like a spyware/malware program and
allows SEI to take photographs with the leased computers’ cameras, capture
keystrokes, take screen shots, and track the physical location of the computer.
Detective Mode can send updates on computer activity to SEI up to every two
minutes. (Id. at ¶¶ 22-25). The Plaintiff alleges that SEI has used Detective Mode on
all of its customers’ computers to capture personal information ranging from medical
records, private emails, social security numbers, financial information, and personal
activities as seen through the computer’s camera. (Id. at ¶¶ 3, 35).
The Plaintiff seeks to represent a class on behalf of all the Defendant’s
customers. The Plaintiff alleges that SEI does not disclose to its customers that it
installs PC Rental Agent ® on its leased computers or that it uses the software’s
Detective Mode function to gather information about customers. (Id. at ¶ 30). The
Plaintiff brings claims for common law invasion of privacy/intrusion on seclusion,

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computer invasion of privacy under O.C.G.A. § 16-9-93(c), and intentional infliction
of emotional distress. (Id. at ¶¶ 40-51). Her complaint was filed in state court on
March 5, 2013, the Defendant removed the complaint to this Court on March 26,
2013, and the Defendant filed its motion to dismiss on April 2, 2013. On April 9,
2013, the Court denied the Plaintiff’s motion for mandatory injunctive relief or
alternatively to certify a class, without prejudice.
II. Motion to Dismiss Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to
dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff
would be able to prove those facts; even if the possibility of recovery is extremely
“remote and unlikely.” Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). In
ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint
as true and construe them in the light most favorable to the plaintiff. See Quality
Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711
F.2d 989, 994-95 (11th Cir. 1983); see also Sanjuan v. American Bd. of Psychiatry
and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading
stage, the plaintiff “receives the benefit of imagination”). Generally, notice pleading

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is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc.,
753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082 (1986). Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim
and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citing Twombly, 127 S.Ct. at 1964).
III. Discussion
A.

The Plaintiff’s Claim for Invasion of Privacy

The Defendant argues that the Plaintiff’s claim for invasion of privacy must fail
because the allegations supporting that claim are only based upon information and
belief and because there are no credible allegations that SEI actually obtained data
from the Plaintiff’s computer. The Plaintiff counters that her allegations are sufficient
and that there is no way for her to know whether SEI did in fact access her computer
without engaging in discovery.
The Plaintiff’s invasion of privacy claim is based upon an intrusion into her
seclusion or other private affairs. “The intrusion aspect of this type of invasion of
privacy ‘involves a prying or intrusion, which would be offensive or objectionable to
a reasonable person.’” Everett v. Goodloe, 268 Ga. App. 536, 544 (2004) (quoting
Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 705 (1991)). Here, the
Plaintiff alleges that the Defendant leased a computer to her without informing her

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that the computer was equipped with software that would allow the Defendant to
monitor the Plaintiff’s activities. The Plaintiff further alleges that the Defendant
accessed financial information, personal information, and even images of the Plaintiff
at her computer. These are allegations of potential intrusions on privacy that would
be “offensive or objectionable to a reasonable person.” See id.
The Defendant nevertheless insists that the Plaintiff’s claim must fail because
the Plaintiff only alleges that, “[u]pon information and belief, the Plaintiff’s computer
was secretly accessed by Defendant, resulting in her physical location being tracked
and her images being taken with the webcam and her communications being stolen,
all via PC Rental Agent.” (Compl. ¶ 35). The Defendant relies upon Innotex
Precision Ltd. v. Horei Image Products, Inc., 679 F. Supp. 2d 1356, 1360 (N.D. Ga.
2009), where this Court refused to provide the assumption of truth to pleadings based
on information and belief. However, in that case, the court rejected four paragraphs
from the complaint that were “‘threadbare recitations’ of factors cited by Georgia
courts in deciding whether to pierce the corporate veil.” Id. (quoting Iqbal, 129 S. Ct.
at 1949). Here, on the other hand, the allegation upon information and belief does not
recite the elements of a claim or make a conclusory statement. Rather, the allegation
states that the Plaintiff believes the Defendant has accessed specific aspects of her
private information using a specific software program the Defendant installed on her

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computer. Importantly, it is unclear how the Plaintiff could know at this time beyond
information and belief whether the Defendant actually accessed the Plaintiff’s
computer. See Awbrey v. Great Atlantic & Pac. Tea Co., 505 F. Supp. 604, 607 (N.D.
Ga. 1980) (denying summary judgment to defendant on wiretapping claim and noting
that “the fact that most of the plaintiffs have no personal, first-hand knowledge that
any particular phone call was tapped is not remarkable. Indeed, it would be unusual
if anyone other than defendant, and its employees involved in the wiretapping, had
knowledge of the specific incidents of wiretapping.”). Accordingly, the Plaintiff has
sufficiently alleged facts to sustain a claim for intrusion upon seclusion. The
Defendant’s motion to dismiss should be denied in this respect.
B.

The Plaintiff’s Claim Under O.C.G.A. § 16-9-93(c)

The Defendant argues that the Plaintiff has not alleged facts to sustain a claim
under O.C.G.A. § 16-9-93(c). That statute, entitled Computer Invasion of Privacy,
provides that:
Any person who uses a computer or computer network with the intention
of examining any employment, medical, salary, credit, or any other
financial or personal data relating to any other person with knowledge
that such examination is without authority shall be guilty of the crime of
computer invasion of privacy.
O.C.G.A. § 16-9-93(c). Further, O.C.G.A. § 16-9-93(g)(1) provides that “[a]ny
person whose property or person is injured by reason of a violation of any provision

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of this article may sue therefor and recover for any damages sustained and the costs
of suit.” The Defendant argues that O.C.G.A. § 16-9-93(g)(1) requires the Plaintiff
to allege that she has been injured in order to sustain a claim for Computer Invasion
of Privacy, and that the Plaintiff has not done so. However, the Plaintiff alleges that
the Defendant accessed her computer and viewed financial and personal information
as well as pictures of the Plaintiff taken by the computer’s webcam. Additionally, the
Plaintiff alleges that she and potential class members have been injured by the
Defendant’s use of Detective Mode because their information “may have been
possibly transmitted to other third parties thereby placing [the putative class] at an
increased risk of fraud and identity theft and causing direct financial expenses
associated with credit monitoring, replacement of compromised credit, debit, and bank
card numbers.” (Compl. ¶ 38). These allegations are sufficient to show that the
Plaintiff has been injured by the Defendant’s intrusion on her privacy through the PC
Rental Agent ® software. See O.C.G.A. § 16-9-93(g)(1) (“Without limiting the
generality of the term, ‘damages’ shall include loss of profits and victim
expenditure.”). Accordingly, the Court concludes the Plaintiff has pled sufficient facts
to support a claim under O.C.G.A. §§ 16-9-93(c) and (g), and the Defendant’s motion
to dismiss should be denied in this respect.

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C.

The Plaintiff’s Claim for Intentional Infliction of Emotional Distress

The Defendant argues that the Plaintiff has not stated a claim for intentional
infliction of emotional distress.1 “To assert a claim for intentional infliction of
emotional distress, plaintiffs must show ‘(1) the conduct giving rise to [the distress]
was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the
conduct caused emotional distress; and (4) the emotional distress was severe.’”
Peterson v. Merscorp Holdings, Inc., No. 1:12-cv-00014-JEC, 2012 WL 3961211, at
*6 (N.D. Ga. Sept. 10, 2012) (quoting Blue View Corp. v. Bell, 298 Ga. App. 277,
279 (2009)).
Here, even assuming the Defendant’s conduct was intentional and was
sufficiently outrageous, the Plaintiff has not alleged facts to show that she suffered
severe emotional distress.
Emotional distress includes all highly unpleasant mental reactions such
as fright, horror, grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry, and nausea. It is only where it is
extreme that liability arises. The law intervenes only where the distress
inflicted is so severe that no reasonable person could be expected to
endure it.

The complaint did not specify whether the Plaintiff’s claim is for intentional
infliction of emotional distress or negligent infliction of emotional distress, but the
Plaintiff stated in her response brief that the count was for intentional infliction of
emotional distress. (See Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss, at 9).
1

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Abdul-Malik v. AirTran Airways, Inc., 297 Ga. App. 852, 858 (2009) (quoting
Peoples v. Guthrie, 199 Ga. App. 119, 121 (1991) (alterations omitted)). There are
no allegations in the entire complaint stating that the Plaintiff herself suffered
emotional distress, let alone severe emotional distress. The closest allegations are the
allegations that “[t]he acts of Defendant constitute a wanton, voluntary, and
intentional wrong, which was so terrifying and insulting as naturally to [sic] humiliate,
embarrass, and frighten Plaintiff and class members.” (Compl. ¶ 51).

These

allegations do not show a sufficiently severe level of emotional stress. Indeed,
allegations of emotional stress more severe than humiliation, embarrassment, and
fright have been held insufficient by Georgia courts. See Abdul-Malik, 297 Ga. App.
at 858 (concluding that evidence of sleeplessness and weight gain was insufficient for
a claim of intentional infliction of emotional distress); Witter v. Delta Airlines, 966
F. Supp. 1193, 1201 (N.D. Ga. 1997), aff’d, 138 F.3d 1366 (11th Cir. 1998) (evidence
of anxiety, sleeplessness, overeating, diarrhea, and headaches was insufficient to
establish severe emotional distress); Ghodrati v. Stearnes, 314 Ga. App. 321, 324
(2012) (evidence that plaintiff suffered anxiety, sleeplessness, embarrassment, and
loss of confidence, and later sought counseling, was insufficient to establish severe
emotional distress at summary judgment stage). The Plaintiff’s allegations only state
she was subject to humiliation, fear, and embarrassment. She does not allege any

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physical symptoms or further mental symptoms, or provide any details. There is no
indication that she has sought professional help. In short, the Plaintiff’s allegations
do not indicate that she suffered sufficiently severe emotional stress to sustain a claim
for intentional infliction of emotional distress. Accordingly, the Defendant’s motion
to dismiss should be granted in this respect.
IV. Conclusion
For the reasons set forth above, the Defendant’s Motion to Dismiss [Doc. 7] is
GRANTED in PART and DENIED in PART.
SO ORDERED, this 18 day of December, 2013.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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