Larson v. Liberty Mutual Fire Insurance Company et al
Filing
42
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE FIRST AMENDED VERIFIED COMPLAINT 24 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/10/12. ("The Clerk of Court is directed to enter judgment in favor of Defendants and to clo se this case.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Lonnie E. Larson shall be served by First Class Mail at the address of record on January 11, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 11-00272 SOM/BMK
LONNIE E. LARSON,
)
)
Plaintiff,
)
)
vs.
)
)
LIBERTY MUTUAL FIRE INSURANCE )
COMPANY; and TOM PETRUS &
)
MILLER, LLC,
)
)
)
Defendants.
_____________________________ )
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS THE FIRST
AMENDED VERIFIED COMPLAINT
ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS THE FIRST AMENDED VERIFIED COMPLAINT
I.
INTRODUCTION.
Plaintiff Lonnie E. Larson claims to have been hit by
lightning on February 26, 2002.
See First Amended Verified
Complaint ¶ 6, Aug. 31, 2011, ECF No. 21.
At that time, Larson
says, he was working for Altres Staffing Inc., which was
providing construction labor to JAS Glover.
Id.
Larson sought
worker’s compensation insurance benefits from Altres’s carrier,
Defendant Liberty Mutual Fire Insurance Company.
Id.
Liberty
Mutual appears to have been concerned about potential insurance
fraud and hired a private investigator to conduct surveillance of
Larson.
Id. ¶ 11.
Liberty Mutual denied Larson’s worker’s
compensation claim on July 7, 2002.
Id. ¶ 16.
In the aftermath
of that denial, on April 26, 2011, Larson filed the present
lawsuit against Liberty Mutual and its former counsel, the law
firm of Tom Petrus & Miller LLC, complaining that they had
obtained computer records relating to him without authorization.
See Verified Complaint, April 26, 2011, ECF No. 1.
Defendants
now move to dismiss Larson’s First Amended Verified Complaint
pursuant to Rule 12(b)(6).
II.
The court grants the motion.
FACTUAL BACKGROUND.
On or about November 10, 2002, Frank Stephenson, of
Hyperion International Technologies, LLC, which says it was
Larson’s former employer, sent a facsimile letter to Theresa
Boller, a claims adjuster for Liberty Mutual, and indicated that,
from September 25, 2002, to November 5, 2002, Larson had worked
for Hyperion in Arizona.
First Amended Verified Complaint Ex. 1.
The letter stated:
Your customer service was contacted last
Tuesday (November 5, 2002) by telephone . . .
and a report was made regarding a possible
insurance fraud. . . . Since that report was
made, I have discovered other pertinent
information . . . and, since I have not heard
anything further on this matter, I thought it
best to send this letter via fax notifying
you of the report and a few other details
that are not in the report.
The person filing this claim, Lonnie Larson,
spent over a month in our offices (Hyperion
International) in Tempe, AZ working on a
project. . . . He arrived at Phoenix’s Sky
Harbor Airport on September 25th and departed
for Hawaii on November 5th. During that
time, he walked from his apartment to our
office (0.3 miles one way) four times a day.
On weekends, he walked to and from shopping
areas that vary in total round trip distances
of between 3 and 6 miles. He also assembled
various components of equipment, lifted
relatively heavy solar panels, sketched out
2
diagrams, typed various letters and emails;
for all intents and purposes, appeared to be
a healthy, active man.
While none of us dispute that Mr. Larson may
have been struck by lightning on February 26,
2002, as he contends, the after effects, both
physical and psychological, appear to be
whatever he chooses them to be, and bother
him whenever he thinks it is appropriate for
his audiences. For example, until the
morning of his departure for Hawaii, he was
as I have described in the previous
paragraph. However, for some strange reason,
he required a wheelchair to get from airport
curbside to the gate.
The report I have referenced above contains
the names of five other people in our offices
who witnessed this behavior by Mr. Larson.
They may, or may not be willing to testify to
those facts, that is completely up to them.
I, for one, believe Mr. Larson is trying to
pull off a scam.
Facsimile Letter dated Nov. 10, 2002, from Frank Stephenson to
Theresa Boller, attached to First Amended Verified Complaint as
Exhibit 1, ECF No. 21-1.
Larson claims that on November 22, 2002, “Karen,” a
Liberty Mutual employee, called Stephenson and requested personal
and private communications about Larson that Stephenson had
mentioned to her.1
First Amended Verified Complaint ¶ 19.
Larson claims that Stephenson faxed her the requested information
1
In the First Amended Verified Complaint, Larson cites to
Exhibit 2 as evidence of this. However, Larson appears to have
inadvertently attached Exhibit 3 as Exhibit 2, as Exhibit 2 is
identical to Exhibit 3 and does not support the allegation for
which it is cited.
3
on November 26, 2002.
Id.
He also alleges that Stephenson later
sent her Larson’s “personal and private communications,” such as
Larson’s medical records, emails, letters, and payroll records.
Id.
Larson attaches to his First Amended Verified Complaint a
cover sheet for transmissions on November 26, 2002, which states:
“Dear Karen.
More stuff.
I have a document approximately 40
pages in length that amounts to a daily diary Lonnie kept to
record his ‘symptoms’ – let me know if you need a copy.”
Amended Verified Complaint Ex. 3, ECF No. 21-3.
First
Larson alleges
that Stephenson and/or Hyperion accessed and intercepted his
emails.
First Amended Verified Complaint ¶ 21.
Larson says that he did not consent to Hyperion’s
obtaining of his private information and that he “had no notice
Hyperion would access his personal computers and/or Internet
email servers to retrieve, intercept, use or disclose his
confidential information.”
Id. ¶¶ 26-27.
Larson alleges that
“Stephenson acted as Liberty Mutual’s agent in the acquisition,
use and disclosure of . . . Larson’s personal and private
communications.”
First Amended Verified Complaint ¶ 22.
Larson
also alleges that Stephenson and/or Hyperion “conspired” with
Liberty Mutual to acquire Larson’s private and personal
communications.
Id. ¶ 24.
Larson says that Liberty Mutual gave his private
information to its counsel, Defendant Tom Petrus & Miller, LLC,
4
“during the course of litigation in civil action number 09-308.”
Id. ¶ 28.
Tom Petrus & Miller allegedly disclosed this
information to “its partners, associates, officers and/or
employees . . . knowing or having reason to know that” the
information was acquired illegally.
Id. ¶ 31.
By allegedly accessing Larson’s computer, Hyperion and
Liberty Mutual are alleged to have caused Larson more than $5,000
in monetary loss in a one-year period, including the loss of
worker’s compensation payments2 and his failure to recover
damages in Civil Number 09-00308 SOM/BMK.
Id. ¶ 30.
Larson initiated this lawsuit on April 26, 2011.
Verified Complaint.
See
On August 11, 2011, this court dismissed
Larson’s Verified Complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure and gave Larson leave to file an
amended complaint.
Order Granting Defs’ Mot. to Dismiss Verified
Complaint, Aug. 11, 2011, ECF No. 17 (“Order Dismissing Verified
Complaint”).
Larson filed his First Amended Verified Complaint
on August 31, 2011.
Defendants now move to dismiss that
complaint pursuant to Rule 12(b)(6).
Larson did not timely file an opposition.
On December
30, 2011, he moved for an extension of time to file an
2
Notwithstanding this allegation in the First Amended
Verified Complaint, Larson has now apparently prevailed on his
worker’s compensation claim before the State of Hawaii,
Department of Labor. Pl.’s Opp, to Def.’s Mot. to Dismiss at 8,
Jan. 6, 2012, ECF No. 39.
5
opposition, which this court denied.
ECF No. 35.
On January 6,
2012, Larson sought to continue the hearing on this motion,
scheduled for January 9, 2012, on the ground that his medications
or health would hinder his ability to participate.
ECF No. 36.
That same day, Larson again moved for an extension of time to
file an opposition.
He also filed an opposition.
Even though it
was not mentioned in his motion regarding his opposition
memorandum, Larson may now be claiming that his disability
impaired his ability to prepare an opposition.
While he does not
even allege that this was so for the entire three months since
Liberty Mutual filed its motion to dismiss, the court now grants
his request to file a late opposition memorandum.
III.
MOTION TO DISMISS STANDARD.
When reviewing motions to dismiss brought under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the court is
generally limited to the contents of the complaint.
Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996).
If
matters outside the pleadings are considered, the Rule 12(b)(6)
motion is treated as one for summary judgment.
See Keams v.
Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997);
Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
However,
courts may “consider certain materials--documents attached to the
complaint, documents incorporated by reference in the complaint,
6
or matters of judicial notice--without converting the motion to
dismiss into a motion for summary judgment.”
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
United States v.
A document with
contents that are alleged in a complaint may also be considered
in ruling on a Rule 12(b)(6) motion to dismiss, if no party
questions its authenticity.
See Branch v. Tunnell, 14 F.3d 449,
453-54 (9th Cir. 1994), overruled on other grounds by Galbraith
v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.
Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).
However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; Syntex
Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
7
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (“the pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”).
“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555.
The
complaint must “state a claim to relief that is plausible on its
face.”
IV.
Id. at 570.
ANALYSIS.
Larson’s First Amended Verified Complaint asserts seven
causes of action: Count I--violation of the federal Computer
Fraud and Abuse Act, 18 U.S.C. § 1030(a)(4); Count II--violation
of the federal Computer Fraud and Abuse Act, 18 U.S.C.
8
§ 1030(a)(5)(c); Count III--violation of the federal Stored
Communications Act, 18 U.S.C. §§ 2701 and 2707; Count IV-violation of the federal Wiretap Act, 18 U.S.C.
§§ 2511(1)(c),(d), and 2520; Count V--state-law invasion of
privacy; Count VI--state-law intentional infliction of emotional
distress (“IIED”); and Count VII--state-law punitive damages.
Larson asserted nearly identical causes of action in
his Verified Complaint, supported by similar factual allegations.
See Verified Complaint at 11-20.
On August 11, 2011, this court
dismissed the Verified Complaint as to both Liberty Mutual and
Tom Petrus & Miller for failure to allege a claim upon which
relief could be granted.
Id. at 11-15.
As Larson has not cured
the deficiencies this court raised in its previous order, the
court now dismisses the First Amended Verified Complaint.
A.
Counts I, II, and III Are Dismissed Because the
First Amended Verified Complaint Fails to Allege
Any Basis For Holding Liberty Mutual Responsible.
In Counts I and II of the First Amended Verified
Complaint, Larson asserts that Liberty Mutual violated the
federal Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030(a)(4) and
(5)(C), which states:
Whoever-. . . .
(4) knowingly and with intent to defraud,
accesses a protected computer without
authorization, or exceeds authorized access,
and by means of such conduct furthers the
9
intended fraud and obtains anything of value,
unless the object of the fraud and the thing
obtained consists only of the use of the
computer and the value of such use is not
more than $5,000 in any 1-year period;
(5) . . . (C) intentionally accesses a
protected computer without authorization, and
as a result of such conduct, causes damage
and loss;
. . . .
shall be punished as provided in subsection
(c) of this section.
Count III of the First Amended Verified Complaint
asserts that Liberty Mutual violated the federal Stored
Communications Act, 18 U.S.C. § 2701, which provides in relevant
part:
whoever--(1) intentionally accesses without
authorization a facility through which an
electronic communication service is provided;
or (2) intentionally exceeds an authorization
to access that facility; and thereby obtains,
alters, or prevents authorized access to a
wire or electronic communication while it is
in electronic storage in such system shall be
punished as provided in subsection (b) of
this section.
A civil remedy is provided in 18 U.S.C. § 2707 for violations of
§ 2701.
Counts I, II, and III of the First Amended Verified
Complaint are brought only against Liberty Mutual.
Larson
asserts that Liberty Mutual is vicariously liable for
Stephenson’s and/or Hyperion’s actions.
In dismissing the Verified Complaint, this court held
that, although Larson alleged that Stephenson acted as Liberty
10
Mutual’s agent when Stephenson allegedly accessed Larson’s
information, no facts were alleged to support an agency
relationship.
Order Dismissing Verified Complaint at 10.
The
court explained:
There are, for example, no allegations
indicating that Stephenson or Hyperion was
compelled to grant the request or had actual
or apparent authority to act on Liberty
Mutual’s behalf. See Frankl v. HTH Corp., __
F.3d __, 2011 WL 3250637, *27 (9th Cir. July
13, 2011). Larson’s conclusory allegation
that Stephenson was Liberty Mutual’s agent is
insufficient to defeat the present motion.
See Sprewell, 266 F.3d at 988. Without facts
or an identified basis for holding Liberty
Mutual liable for Stephenson’s and/or
Hyperion’s actions, Counts I, II, and III
fail to allege a claim upon which relief can
be granted and are therefore dismissed.
Id.
Larson’s First Amended Verified Complaint now includes
some statements to support an agency relationship.
Those
statements, however, still do not allege sufficient facts to
establish vicarious liability.
“[T]raditional vicarious
liability rules ordinarily make principals or employers
vicariously liable for acts of their agents or employees in the
scope of their authority or employment.”
U.S. 280, 285 (2003).
Meyer v. Holley, 537
Larson acknowledges in his opposition that
Stephenson was not a Liberty Mutual employee.
Pl.’s Opp. to
Def.’s Mot. to Dismiss, Jan. 6, 2012, ECF No. 39 (“Opposition”).
11
Liberty Mutual’s vicarious liability must therefore rest on
Stephenson’s or Hyperion’s role as an agent of Liberty Mutual’s.
According to the Ninth Circuit, “Generally, for an
agency relationship to exist, a principal must consent to the
agent acting on his behalf and subject to his control, and the
agent must consent to act for the principal.”
Holley v. Crank,
400 F.3d 667, 673 (9th Cir. 2005) (citing Restatement (Second) of
Agency § 1 (1958)).3
See also Batzel v. Smith, 333 F.3d 1018,
1035 (9th Cir. 2003) (“Agency is the fiduciary relationship that
arises when one person (a ‘principal’) manifests assent to
another person (an ‘agent’) that the agent shall act on the
principal's behalf and subject to the principal's control, and
the agent manifests assent or otherwise consents so to act.”
(quoting a tentative draft of Restatement (Third) of Agency
§ 1.01)).
3
Section 1 of the Second Restatement of Agency states:
“Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent
by the other so to act.” Restatement (Second) of Agency § 1
(1958). After Holley was decided, the Third Restatement of
Agency was published. The corresponding section in the Third
Restatement, section 1.01, states: “Agency is the fiduciary
relationship that arises when one person (a ‘principal’)
manifests assent to another person (an ‘agent’) that the agent
shall act on the principal's behalf and subject to the
principal's control, and the agent manifests assent or otherwise
consents so to act.” Restatement (Third) of Agency § 1.01
(2006).
12
Larson alleges that Stephenson and Hyperion’s
“transmission of Mr. Larson’s personal and confidential
information was under the control and direction of Liberty
Mutual.”
First Amended Verified Complaint ¶ 22.
He alleges that
Liberty Mutual gave Stephenson and Hyperion actual and apparent
authority to obtain Larson’s personal information on its behalf.
Id.
He states that Liberty Mutual and Stephenson and/or Hyperion
consented to the arrangement, and that Liberty Mutual never
refused the documents.
Id.
These statements are recitals of the
elements of an agency relationship, not factual allegations.
They are not enough to state a claim for relief.
See Iqbal, 129
S. Ct. at 1949 (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice [to state a claim to relief that is plausible on its
face].”).
Larson does not allege sufficient facts to support his
recitation of the elements of an agency relationship.
“A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ct. at 1949.
Iqbal, 129 S.
A plaintiff must show “more than a sheer
possibility that a defendant has acted unlawfully.”
Id.
facts alleged in a complaint must nudge the claim from
“conceivable” to “plausible.”
See id. at 1950.
13
The
Larson alleges only that Stephenson did not retrieve
Larson’s information until he received “authorization” from
Liberty Mutual, that Liberty Mutual “asked” Stephenson to fax
Larson’s information, that Stephenson sent the documents only
after Liberty Mutual “directed” Stephenson to send them, and
that, even though Stephenson had additional information about
Larson, the only reason he did not send the information was
because Liberty did not direct him to do so.
Id. ¶ 23.
Even
accepting these allegations as true, they do not allow the court
to reasonably infer that Stephenson was an agent of Liberty
Mutual’s.
That Liberty Mutual asked, directed, or authorized
Stephenson to retrieve and send Larson’s information does not, by
itself, establish that Stephenson acted as an agent by complying
with Liberty Mutual’s request.
Larson does not provide facts
indicating that Stephenson agreed, or manifested assent, to act
on Liberty Mutual’s behalf and subject to its control.
For
example, there are no facts indicating that a relationship or
agreement existed between Stephenson and Liberty Mutual.
Larson argues in his opposition that his exhibits show
that Liberty Mutual manifested that Stephenson would act for
Liberty Mutual by showing that Stephenson called Liberty Mutual
and offered his services, that Liberty Mutual returned his call,
and that Stephenson disclosed Larson’s personal and confidential
information after receiving Liberty Mutual’s phone call and at
14
Liberty Mutual’s behest.
He argues that Stephenson “clearly
accepted this undertaking.”
Opposition at 3.
However, the fact
that Stephenson offered to provide Liberty Mutual with
information, which Liberty Mutual received, does not show that
either party assented to Stephenson’s acting on behalf of, and
subject to the control of, Liberty Mutual.
Despite Larson’s argument that the “only reasonable
inferences from the complaint’s factual allegations are that
Liberty Mutual did indeed control Mr. Stephenson’s actions,”
Opposition at 3, there is no indication from the facts alleged
that Stephenson was in fact subject to Liberty Mutual’s control.
Although Larson alleges that Liberty Mutual “directed”
Stephenson, and that Stephenson did not act until “authorized,”
no factual allegation suggests that Liberty Mutual was in a
position to dictate anything to Stephenson, to determine how much
information he would provide, or to decide in what manner.
There
is no allegation that Stephenson lacked the power to refuse to
provide such materials had he wanted to refuse.
In addition, Larson’s exhibits appear to contradict
Larson’s conclusory statement that Stephenson was controlled by
Liberty Mutual.
In the letter from Stephenson to Boller,
Exhibit 1, Stephenson voluntarily offered to provide Liberty
Mutual with additional information about Larson.
Stephenson said
that he “thought it best” to notify Liberty Mutual of various
15
details when he did not hear anything from Liberty Mutual, as
Stephenson believed Larson was “trying to pull off a scam.”
In
the transmission sheet Stephenson sent to Liberty Mutual,
Exhibits 2 and 3, Stephenson offered to send Liberty Mutual
Larson’s “daily diary.”
These exhibits suggest that Liberty
Mutual asked Stephenson to fax Larson’s personal information only
after Stephenson offered to give Liberty Mutual that information.
While conceivable, it is simply not plausible on the facts
alleged, and in light of the exhibits provided, that Stephenson
or Hyperion was controlled by Liberty Mutual such that either was
acting as Liberty Mutual’s agent.
Larson’s allegation that Stephenson acted with apparent
authority also fails.
According to the Restatement on Agency,
“Apparent authority is the power held by an agent or other actor
to affect a principal's legal relations with third parties when a
third party reasonably believes the actor has authority to act on
behalf of the principal and that belief is traceable to the
principal's manifestations.”
Restatement (Third) § 2.03 (2006).
Larson does not allege the presence of a third party who believed
that Stephenson or Hyperion was Liberty Mutual’s agent.
All
dealings alleged were between Stephenson and Liberty Mutual
employees.
Without factual allegations or an identified basis
supporting Liberty Mutual’s liability for Stephenson’s or
16
Hyperion’s actions, Counts I, II, and III fail to allege a claim
upon which relief can be granted and are therefore dismissed.
B.
Count IV is Dismissed Because Larson Does Not
Allege That Any Communication Involved an
Interception During Transmission.
Count IV of the First Amended Verified Complaint
alleges that Liberty Mutual and Tom Petrus & Miller violated the
federal Wiretap Act, 18 U.S.C. §§ 2511(1)(c) and (d), which
states:
Except as otherwise specifically provided in
this chapter any person who–
. . . .
(c) intentionally discloses, or
endeavors to disclose, to any other person
the contents of any wire, oral, or electronic
communication, knowing or having reason to
know that the information was obtained
through the interception of a wire, oral, or
electronic communication in violation of this
subsection;
(d) intentionally uses, or endeavors to
use, the contents of any wire, oral, or
electronic communication, knowing or having
reason to know that the information was
obtained through the interception of a wire,
oral, or electronic communication in
violation of this subsection
. . . .
shall be punished as provided in subsection
(4) or shall be subject to suit as provided
in subsection (5).
Larson asserts a right to bring a civil action for a violation of
§ 2511 under 18 U.S.C. § 2520.
17
This court previously dismissed this claim on the
ground that, “[i]n addition to the lack of factual detail
supporting Liberty Mutual’s vicarious liability, . . . there are
no allegations that any communication was intercepted during
transmission.”
Order Dismissing Verified Complaint at 12.
The
court here dismisses Count IV of the First Amended Verified
Complaint on the same grounds.
In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 87778 (9th Cir. 2002), the Ninth Circuit held that, for a wire
communication “to be ‘intercepted’ in violation of the Wiretap
Act, [the communication] must be acquired during transmission,
not while it is in electronic storage.”
In dismissing the
Verified Complaint, this court held that “this definition appears
applicable to §§ 2511(1)(c) and (d), meaning that those sections
can only be violated when a defendant intentionally discloses, or
endeavors to disclose, or intentionally uses, or endeavors to use
communications that the defendant knows or has reason to know
were intercepted during the transmission of the communications.”
Order Dismissing Verified Complaint at 12-13 (citing Konop, 302
F.3d at 877-78).
Because the Verified Complaint did not allege
that Stephenson intercepted Larson’s communications during their
transmission, the court ruled that §§ 2511(1)(c) and (d) were
inapplicable.
18
Larson’s First Amended Verified Complaint now alleges
that Stephenson and/or Hyperion intercepted Larson’s emails that
were “stored on the Internet Service Provider, msn or msn.com,”
and that Stephenson and/or Hyperion “contemporaneously
intercepted those electronic communications while in
transmission.”
First Amended Verified Complaint ¶ 21.
Larson
states that “the act of downloading an email from an Internet
Service Provider email account to a computer is a transmission
and contemporaneous interception.”
argument in his opposition.
Id.
Larson also makes this
Larson appears to allege that by
downloading Larson’s emails from the internet service provider,
where the emails were stored, Stephenson himself transmitted the
emails, and then simultaneously “intercepted” them.
However,
Stephenson’s own alleged act of downloading Larson’s emails from
the internet service provider cannot serve as the transmission
that Stephenson allegedly intercepted.
Stephenson could not have
intercepted his own transmission.
In addition, Larson continues to allege that the emails
were stored on the internet service provider when Stephenson
allegedly downloaded them.
The Ninth Circuit has held that
emails stored on an internet service provider are in electronic
storage.
Theofel v. Farey-Jones, 359 F.3d 1066, 1075-77 (9th
Cir. 2004) (holding that copies of emails stored on an internet
service provider are deemed to be in electronic storage).
19
See
also Bunnell v. Motion Picture Ass’n of America, 567 F. Supp. 2d
1148, 1153 (C.D. Cal. 2007) (holding that emails were not
“intercepted” in violation of the Wiretap Act when they were
copied and forwarded while they were stored on an email server).
As Larson alleges that Stephenson downloaded Larson’s emails
while they were on the internet service provider, Larson fails to
state a claim under the Wiretap Act upon which relief can be
granted.
C.
The Court Declines to Exercise Supplemental
Jurisdiction Over the Remaining State-Law Claims.
The remaining claims, Counts V through VII, assert
state-law claims for invasion of privacy, IIED, and punitive
damages.
Because Larson fails to allege facts demonstrating
complete diversity,4 the only jurisdictional basis remaining for
these claims is the court’s supplemental jurisdiction.
Supplemental jurisdiction, unlike federal question or
diversity jurisdiction, is not mandatory.
A court may decline to
exercise supplemental jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of state law;
(2) the state law claim substantially predominates over the claim
or claims over which the district court has original
4
Larson alleges that he is a “resident” of Hawaii, that
Liberty Mutual is organized in and has a principal place of
business in Massachusetts, and that Tom Petrus & Miller is a
limited liability corporation with a principal place of business
in Hawaii. First Amended Verified Complaint ¶¶ 1-3.
20
jurisdiction; (3) the district court has dismissed all claims
over which it has original jurisdiction; or (4) in exceptional
circumstances, there are other compelling reasons for declining
jurisdiction.
See 28 U.S.C. § 1367.
Supplemental jurisdiction is thus a doctrine of
discretion, not of a plaintiff’s right.
City of Chicago v. Int’l
College of Surgeons, 522 U.S. 156, 172 (1997); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
When, as
here, “the federal claims are dismissed before trial, even though
not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.”
Gibbs, 383 U.S. at 726.
Such a
dismissal is not “a mandatory rule to be applied inflexibly in
all cases,” but “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine--judicial
economy, convenience, fairness, and comity--will point toward
declining to exercise jurisdiction over the remaining state-law
claims.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988).
This court dismisses all of the claims over which it
has original jurisdiction and identifies no factors making this
case anything but the usual case in which supplemental
jurisdiction is better declined.
The court therefore also
dismisses Larson’s state-law claims.
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V.
CONCLUSION.
The court, having here granted Larson’s second motion
for leave to file a late opposition, dismisses the First Amended
Verified Complaint.
pleading.
claim.
This court gave Larson leave to file that
He has now failed for the second time to state a
This is the third action Larson has filed in this court
relating to the same worker’s compensation claim.
See Larson v.
Liberty Mutual Fire Ins. Co., Civ. No. 09-00308, and Larson v.
Ching, Civ. No. 08-00537.
At this point, it makes no sense to
give Larson, even though he is proceeding pro se, innumerable
opportunities to cure pleading deficiencies, particularly when
the claims are implausible.
The Clerk of Court is directed to
enter judgment in favor of Defendants and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 10, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Larson v. Liberty Mutual; Civil No. 11-00272 SOM/BMK; ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS THE FIRST AMENDED VERIFIED COMPLAINT
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