Shefts v. Petrakis
Filing
286
ORDER & OPINION entered by Judge Joe Billy McDade on 07/22/2013. For the foregoing reasons, Plaintiff's Count II is DISMISSED WITH PREJUDICE, and Plaintiff's Motion for Reconsideration 285 is DENIED. This matter will proceed with the Final Pretrial Conference on July 24, 2013 at 11:00 A.M., and jury trial beginning August 5, 2013. See Full Written Order.(JS, ilcd)
E-FILED
Monday, 22 July, 2013 01:18:17 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAMISON J. SHEFTS,
Plaintiff,
v.
JOHN PETRAKIS, KEVIN MORGAN,
HEIDI HUFFMAN, and ACCESS2GO,
Defendants.
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Case No. 10-cv-1104
ORDER & OPINION
This matter is before the Court on a sua sponte effort to “simplify the issues”
for trial as suggested in Federal Rule of Civil Procedure 16, as well as a Motion for
Reconsideration by Plaintiff. In the proposed Final Pretrial Order and proposed jury
instructions submitted by the parties, Defendants raised the question of whether
the basis of Plaintiff’s Count II, the Illinois Eavesdropping Act, includes a civil
cause of action for eavesdropping on electronic communications as Plaintiff alleges.
Plaintiff’s Motion for Reconsideration challenges the Court’s order barring him from
presenting claims for “use” or “disclosure” of his communications under the
Electronic Communications Privacy Act. (Doc. 285).
In his First Amended Complaint, Plaintiff claims that Defendants violated
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, the Illinois
Eavesdropping Act (“IEA”), 720 ILL. COMP. STAT. § 5/14-1 et seq., and the Stored
Communications Act (“SCA”), 18 U.S.C. § 2701 by intercepting, monitoring, and/or
accessing (1) his Access2Go-provided email account, (2) his Yahoo! web-based email
account, and (3) his text messages on his Blackberry device.1 The Court has
resolved a number of these claims through Motions for Summary Judgment, such
that, prior to the issuance of the instant Order, only Plaintiff’s Count I and Count II
claims remained, and the issues under Count I had been simplified. This matter is
set for jury trial beginning August 5, 2013. The instant Order disposes of Plaintiff’s
Count II, such that only Plaintiff’s Count I remains for trial.
ILLINOIS EAVESDROPPING ACT
The first issue now before the Court turns on whether 720 ILL.COMP.STAT.
5/14-6, the civil remedy provision of the IEA includes a claim for eavesdropping
upon “electronic communications,” rather than only oral “conversations.” While the
definition of a criminal violation under the IEA covers such eavesdropping, the text
of the civil provision does not; it only addresses “conversations.” 720 ILL.COMP.STAT.
5/14-2 & 5/14-6. The proposed Final Pretrial Order included the question of whether
the IEA covers Plaintiff’s allegations as a disputed legal issue, and it was
incorporated into Defendants’ proposed jury instructions by asking the jury to
determine whether Defendants had eavesdropped upon any of Plaintiff’s oral
“conversations.” Reviewing these submissions, the Court realized that this was an
issue of law that the Court should deal with prior to trial, since it would either have
to be addressed during the trial in consideration of the proposed jury instructions,
Plaintiff also initially made a claim pursuant to the Computer Fraud and
Abuse Act, 18 U.S.C. § 1030, but it was rejected after the first Motion for Summary
Judgment attacking it, and has not been at issue since that ruling. (Doc. 209 at 3234).
1
2
or by the Court in a post-trial motion.2 Even if the issue were presented to the jury,
the Court would have to address the underlying question of whether “electronic
communications” are covered by the civil IEA remedy, since it would have to decide
at a jury instruction conference which version of the instructions to present to the
jury. It is thus inevitable that the Court would have to deal with this question, so it
is better to resolve it in advance of trial and thereby simplify the trial proceedings.
For that reason, the Court ordered the parties to brief the question; those briefs are
now ready for consideration.
Defendants argue that the IEA’s plain text, as well as its statutory history,
shows that the Illinois legislature did not intend to create a private civil cause of
action for eavesdropping upon “electronic communications.” Plaintiff argues in
opposition that the statute is ambiguous and the statute’s legislative history shows
that the legislature intended to include a civil cause of action for the injuries he
alleges, and that, even if the statute cannot be read to include a civil cause of action
for eavesdropping upon “electronic communications,” the Court should find that
there is an “implied” cause of action. If the Court determines that Plaintiff cannot
rely upon the IEA, Plaintiff requests that he be permitted to amend his complaint to
include common law causes of action, including intrusion upon seclusion.
Plaintiff also asks the Court, if it determines that the IEA’s civil cause of
action does not cover his claim, to still allow him to present his case under the IEA
to the jury, in order to “avoid the possibility that a separate trial would need to be
held in the event that an adverse ruling regarding the IEA is reversed on appeal.”
Neither party had previously pointed out this discrepancy between the
criminal and civil provisions.
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3
(Doc. 284 at 17). This last request is easily disposed of and readily denied. The
Court is confident in its analysis of the IEA’s applicability to this case, and will not
permit Plaintiff to needlessly complicate the issues, lengthen the trial, and confuse
the jury by presenting evidence, arguments, and jury instructions relating to a
claim that has no basis in law.
I.
Statutory Text
The IEA is found within Chapter 720 of Illinois’ statutory code, which is
devoted to criminal offenses. The statute, in relevant part, provides that “(a) A
person commits eavesdropping when he: (1) Knowingly and intentionally uses an
eavesdropping device for the purpose of hearing or recording all or any part of any
conversation or intercepts, retains, or transcribes electronic communication.” 720
ILL.COMP.STAT. 5/14-2. In a separate section, the IEA also provides for a civil
remedy, stating that “(1) Any or all parties to any conversation upon which
eavesdropping is practiced contrary to this Article shall be entitled to” certain
remedies.
720
ILL.COMP.STAT.
5/14-6.
Both
“conversation”
and
“electronic
communication” are defined in the statute: as important to the instant analysis, a
“conversation” is “any oral communication between 2 or more persons”, while an
“electronic communication” is “any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole or part by
a…computer.” 720 ILL.COMP.STAT. 5/14-1(d) & (e). The parties here do not dispute
that Plaintiff’s allegations only concern “electronic communications,” and not
“conversations” in the sense of “oral communications” as defined in the IEA. By
the plain text of the statute, then, the IEA provides for criminal liability for those
4
who eavesdrop upon both oral communications (“conversations”) and emails and
text messages (“electronic communications”), but only offers a civil remedy to those
whose oral communications are eavesdropped-upon. Defendants thus argue that
Plaintiff has no statutory authority on which to base his IEA claim.
“In construing a statute, [the Court’s] primary objective is to give effect to the
intent of the legislature. The most reliable indicator of that intent is the statutory
language itself, which must be given its plain and ordinary meaning.” Snyder v.
Heidelberger, 953 N.E.2d 415, 420-21 (Ill. 2011) (citing Blum v. Koster, 919 N.E.2d
333 (Ill. 2009); Illinois Department of Healthcare & Family Services v. Warner, 882
N.E.2d 557 (Ill. 2008)).3 Thus, the first rule of statutory interpretation is that the
text of the statute, where not ambiguous, must be given its plain meaning. Id. at
421.
Plaintiff’s primary argument is that the statute’s use of “conversation” and
“electronic communications” is ambiguous because, in three subsections, the statute
refers to both “oral conversations” and “electronic communications.” (Doc. 284 at 67). Plaintiff asserts that, because “conversation” is defined in the definitions section
of the statute by reference to the word “oral,” such usage assumes that there might
be non-oral “conversations,” arguing that “if ‘conversation’ already meant ‘oral
conversation,’ there would have been no reason to insert the word ‘oral’” in §§ 5/141, 5/14-2, and 5/14-4. (Doc. 284 at 7). Having reviewed these subsections in context
of the entire statute, the Court finds that the seemingly-redundant use of the term
In interpreting a state statute, a federal court must apply that state’s
statutory construction principles. See Brownsburg Area Patrons Affecting Change v.
Baldwin, 137 F.3d 503, 507 (7th Cir. 1998).
3
5
“oral” was plainly intended to further clarify the difference between a spoken
conversation and a written electronic communication; in effect, it carried the
definition of the term “conversation” into the operative parts of the statute.
Similarly, the use of “any” to modify “conversation” still modifies only the term
“conversation” as defined in § 5/14-1; “any conversation” cannot refer to both
“conversations” and “electronic communications,” since each term is separately
defined.4 The legislature would have had to say something like “any conversation or
communication,” in order to convey the meaning Plaintiff suggests.
Moreover, the exclusion of “electronic communications” from the civil remedy
provision is not an absurd or even unreasonable effect of the statute. It is not
unreasonable to find that the legislature intended to keep civil liability under the
statute to a minimum by not including electronic communications within the civil
remedy provision. Conversely, it is also not unreasonable to assume that the
legislature felt that only eavesdropping upon oral conversations created the sort of
harms that should be remedied by damages, while electronic communications were
adequately protected by the criminal provision.
The Court therefore finds that the IEA, as written, is clear in distinguishing
between oral conversations and written electronic communications such as emails
and text messages, and in providing no civil remedy for eavesdropping upon
electronic communications.
As discussed further below, the legislative history emphatically supports this
clear reading.
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II.
Legislative History
Courts only turn to legislative history for aid in interpreting a statute when
the text of a statute is ambiguous. People v. Jones, 824 N.E.2d 239, 242 (Ill. 2005)
(citing People v. Whitney, 720 N.E.2d 225 (Ill. 1999)) (“Where the legislature's intent
is not clear from the statute's plain language, the court may examine the legislative
history.”). As explained above, Plaintiff’s attempt to find an ambiguity that would
justify resort to legislative history fails – the statute could not be clearer, and so the
Court need not look to the legislative history. In this case, though, the legislative
history is at least as supportive of Defendants’ position as Plaintiff’s, and in fact
appears to confirm the plain text of the statute.
Prior to 2000, civil liability under the IEA was co-extensive with the statute’s
criminal prohibition; both sections addressed eavesdropping on “conversations.” In
that year, though, the Illinois legislature made eavesdropping on “electronic
communications” a criminal offense, and added the relevant definition of that term
to § 5/14-1 of the statute via Public Act 91-657, which originated as House Bill 526,
“An Act concerning criminal law.” No change was made to the civil remedy
provision found at § 5/14-6.
As originally introduced in the Illinois House of Representatives, House Bill
526 added language that would have covered electronic communications to the
definition of “conversation,” rather than changing the section defining the elements
of the offense. (Doc. 283, Ex. F). If this version had been enacted, electronic
communications would have been included in the “conversations” protected by both
the criminal and civil provisions of the IEA. However, the legislature subsequently
7
changed the structure of the amendment, separately defining “electronic
communications,” and adding coverage of such communications to the definition of
the criminal offense at § 5/14-2. (Doc. 283, Ex. H). See also 1999 ILL. LEGIS. SERV.
P.A. 91-657 (H.B. 526).
As Plaintiff points out, “there is no dispute between the parties that, if House
Bill 526 as engrossed had been approved and become law, the civil cause of action
would have provided a civil remedy to an individual for any crime committed
pursuant to the IEA.” (Doc. 284 at 9). Contrary to Plaintiff’s argument, though, the
fate of House Bill 526 cuts in favor of Defendants. Courts must apply the law as it
is, not as it might have been, and, as Plaintiff concedes, House Bill 526 “as
engrossed” did not become law. House Bill 526 “as enrolled” became law, and this
version of the bill did not include a civil remedy for eavesdropping upon electronic
communications; the version enacted does not change the scope of the civil remedy
provision, and the version that was rejected would have done so. Plaintiff argues
that this was due to an oversight, noting that the legislators apparently did not
debate the decision to separately define “electronic communications” and include
them only within the criminal offense. While this is a possible interpretation, the
text actually reflects the more-likely possibility that the legislature intentionally
separated “conversations” from “electronic communications,” and protected the
latter only via the criminal law; since this alteration to the bill more-clearly carried
out the legislature’s intent, there was no need to specifically debate it. The Court
cannot “read in” that which the legislature appears to have intentionally left out.
8
Not only is the statute unambiguous, the legislative history does not support
Plaintiff’s argument.
The unambiguous use of “any conversation” in § 5/14-6 and both “oral
conversation” and “electronic conversation” in §§ 5/14-1, 5/14-2, and 5/14-4 is
clarified by the legislative history. As noted above, the civil remedy provision was
not changed by the 2000 amendment, so the use of “any conversation” in § 5/14-6
could not have been motivated by a desire to include both “conversations” and
“electronic communications” within that section’s coverage, since that language
predated the inclusion of “electronic communications” in the IEA. Likewise, the
word “oral” was used to modify “conversation” in § 5/14-1 as the statute existed
prior to the 2000 amendment, and was added to §§ 5/14-2 and 5/14-4 by the 2000
amendment, when the term “electronic communication” was also added to those
sections. The use of the term “oral conversation” in some sections of the IEA, then,
does not imply that the unmodified use of “conversation” in § 5/14-6 should be read
to include both “conversations” and “electronic communications,” since “oral
conversation” was unambiguously used in the statute prior to 2000.
The history of Public Act 91-657 helps to explain why the legislature focused
only on expanding the scope of the criminal offense. The legislative history
documents the parties have submitted indicate that the amendments were
requested by the Cook County State’s Attorney’s Office in order to allow it to combat
criminal
gangs’
use
of
electronic
devices
to
intercept
law
enforcement
communications. (Doc. 283, Ex. A at 1, Ex. B at 2, Ex. C at 1). The legislature was
simply not concerned with the civil cause of action; it had only been asked to
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address criminal activity that was thwarting law enforcement. With this
understanding of the legislative history, it is obvious that the legislature did not
intend to make any change to the civil cause of action, and that its amendments to
the IEA accomplished the intended goal.
Though the text of the statute was clear, and there was no need to resort to
the IEA’s legislative history, the Court’s review of that history confirms the plain
reading of the statute’s text: the IEA’s civil cause of action does not permit recovery
for eavesdropping upon “electronic communications,” though such eavesdropping is
a criminal offense.
III.
Implied Cause of Action
Finally, Plaintiff argues that the Court should find that there is an implied
civil cause of action for eavesdropping upon electronic communications under the
IEA, and thereby allow him to proceed with his Count II. Plaintiff cites no case in
which any court has implied such a cause of action under the IEA, and the Court’s
research has not revealed any, either. The cases Plaintiff does cite, and which the
Court has reviewed in its research, indicate that it would be inappropriate to imply
a cause of action in this case.
The Illinois courts will imply a civil remedy to redress injuries under statutes
that do not explicitly provide for such remedies, but there are limits to such implied
causes of action.
Implication of a private right of action is appropriate if: (1) the plaintiff is a
member of the class for whose benefit the statute was enacted;(2) the
plaintiff's injury is one the statute was designed to prevent; (3) a private
right of action is consistent with the underlying purpose of the statute; and
(4) implying a private right of action is necessary to provide an adequate
remedy for violations of the statute.
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Fisher v. Lexington Health Care, Inc., 722 N.E.2d 1115, 1117-18 (Ill. 1999). The
fourth factor is the most important limitation on the power of courts to imply a
cause of action: a cause of action may be implied “only in cases where the statute
would be ineffective, as a practical matter, unless such an action were implied.”
Fisher v. Lexington Health Care, Inc., 722 N.E.2d 1115, 1120 (Ill. 1999) (citing
Abbasi ex rel. Abbasi v. Paraskevoulakos, 718 N.E.2d 181, 186 (Ill.1999)) (emphasis
added). See also Cima v. Wellpoint Healthcare Networks, Inc., No. 05-CV-4127-JPG,
2006 WL 1914107, *5 (S.D. Ill. Jul. 11, 2006) (characterizing this as most important
factor). Thus, the absence of this factor alone will prevent a court from implying a
cause of action. Abbasi, 718 N.E.2d at 185 (quoting Board of Education v. A, C & S,
Inc., 546 N.E.2d 580, 600 (1989)) (unnecessary to consider first three factors where
fourth is lacking). Applying this test, it appears that Plaintiff is likely a member of
the class to be protected under the IEA, and that his alleged injury is likely one that
the statute was intended to prevent.5 However, the latter two elements are missing.
While it does not seem, superficially, to be inconsistent with the purpose of
the statute to permit Plaintiff to proceed with an implied cause of action against
Defendants, the Southern District of Illinois’ analysis in Cima v. Wellpoint
The legislative history discussed above can be read as calling this assumption
into question: if the legislature’s goal in amending the IEA in 2000 was to address
the problem of gangs’ eavesdropping upon law enforcement communications, as
appears to have been the case, then the IEA’s protection of “electronic
communications” was not intended to protect Plaintiff or his “electronic
communications.” See Fisher, 722 N.E.2d at 460-61 (discussing legislative history to
limit class of protected individuals). The Court’s analysis does not hinge upon this
observation, though, because the statute itself contains no such limitation upon its
intended scope. There is no indication in the statute that eavesdropping upon
private (non-law enforcement) “electronic communications” is exempt from criminal
penalties.
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Healthcare Networks, Inc. indicates that the Court should consider whether the
existence of certain enforcement mechanisms evinces an intent to exclude others.
2006 WL 1914107, *8 In Davis v. Dunne, the Illinois Appellate Court “found that
the enumeration of three governmental agencies to conduct prosecutions for
violations of the [Civil Service] Act indicated the legislature’s intention to limit the
remedies provided thereunder to the criminal penalties set forth in the Act.” Cima,
2006 WL 1914107, *8 (citing 545 N.E.2d 539, 540 (Ill. Ct. App. 1989)). In light of
Davis, the Cima court was “hesitant” to accept the plaintiffs’ argument that
whether an administrative agency actually chose to enforce a given provision of a
statute was relevant to whether the legislature’s purpose would be furthered by
implying a private cause of action.6 Cima, 2006 WL 1914107, *8. To the Cima court,
the implication of these cases is that the delegation of enforcement authority to a
governmental entity is “strong evidence of the legislature’s intention not to create a
private right.” Id.
This Court finds that the fact that the legislature did create both criminal
liability for Plaintiff’s alleged injury and an explicit cause of action for different
violations of the IEA indicates that it is inappropriate to imply a private cause of
action for eavesdropping upon “electronic communications” here. The fact that it did
not choose to expand the private cause of action to include “electronic
In Cima, the plaintiffs cited an Illinois Appellate Court decision implying a
cause of action where the administrative agency charged with enforcement of the
statute provided a letter stating that it did not enforce the relevant provision. 2006
WL 1914107, *8 (citing Casualty Ins. Co. v. Hill Mech. Group, 753 N.E.2d 370, 378
(Ill. App. Ct. 2001)). In light of the agency’s policy of non-enforcement, the state
court found that the statute was ineffective. Id. (citing Casualty Ins. Co., 753 N.E.2d
at 378). There is no indication in this case that the State’s Attorney has a policy of
non-enforcement of the IEA’s criminal provisions.
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communications” when it amended the criminal offense indicates that it does not
intend for there to be a civil cause of action for eavesdropping upon “electronic
communications.” Where a legislature specifically provides for one type of recovery,
but excludes others, a court can infer that such exclusion was intentional, especially
in circumstances such as this, where excluded cause of action is otherwise
addressed in the statute. See Davis, 545 N.E.2d at 541 (legislature’s provision of
limited remedies indicates an intent to limit remedies to those provided). Since
Illinois’ willingness to imply a cause of action into a statute is predicated on its
compatibility with the legislature’s intent, the Court cannot add a type of recovery
that was specifically excluded by the legislature.
Finally, the fourth and most important factor is missing; the statute’s
protection against eavesdropping upon “electronic communications” can be
effectively enforced via criminal prosecutions under § 5/14-2 such that the statute is
effective even without a private civil cause of action against such eavesdropping.
Moreover, as demonstrated by Plaintiff’s instant suit and his request to amend his
complaint, both federal law and Illinois’ common law provide ample remedial
opportunities for those whose electronic communications have been wrongfully
captured.
There is no per se rule that the existence of a criminal enforcement provision
bars the implication of a private cause of action for a statute under the fourth
factor, but Illinois courts consider the nature of the statute, whether its purpose can
be accomplished without the implication of a private cause of action, and whether
the plaintiff’s injury can otherwise be remedied. Rhodes v. Mill Race Inn, Inc., 467
13
N.E.2d 915, 917 (Ill. App. Ct. 1984) (citing Heimgaertner v. Benjamin Electric Mfg.
Co., 128 N.E.2d 691 (Ill. 1955); Burton v. McClellan, 3 Ill. 434, 437 (Ill. 1840)).
Applying those considerations to this case, it would be inappropriate to imply a
cause of action for eavesdropping upon “electronic communications.”
The IEA is primarily a criminal statute, and eavesdropping upon “electronic
communications” is a felony offense. 720 ILL.COMP.STAT. 5/14-4. It does appear that
there has been no attempt at prosecution in this case, but none of the cited Illinois
cases considering statutes containing public enforcement mechanisms turned on
whether the designated enforcement agencies had actually prosecuted or imposed a
regulatory penalty. The question is whether the statute as written can be effected,
not whether it was effective to prevent or redress the alleged harm in the instant
case. The fact that the state’s attorney has apparently chosen not to attempt a
prosecution in this case is simply an exercise of prosecutorial discretion, and does
not prove that the statute is ineffective. The IEA’s purpose of preventing
eavesdropping upon “electronic communications” can be accomplished through its
criminal enforcement mechanism. The Court thus “cannot say that the statutory
framework the legislature did provide is so deficient that it is necessary to imply a
private right of action for [Plaintiff] in order to effectuate the purpose of the” IEA.
Fisher, 722 N.E.2d at 1121.
It also relevant whether those who are victims of the statutory violation have
other available means of vindicating their injuries. In Asllani v. Board of Education,
the Northern District of Illinois based its decision not to imply a private cause of
action, in part, on the fact that the plaintiff could recover under the Illinois Human
14
Rights and Title VII if her claims were meritorious. 845 F.Supp. 1209, 1224 (N.D.
Ill. 1993). Similarly, the Cima court relied on the fact that the “plaintiffs have
alternative avenues to vindicate their rights” in determining that an implied cause
of action was not necessary. 2006 WL 1914107, 11 (citing Asllani, 845 F.Supp. at
1225; Corgan v. Muehling, 574 N.E.2d 602, 610 (Ill. 1991)). Here, as Plaintiff’s
claims and instant requests to amend show, there are several applicable federal
statutes and common law theories of recovery of which a victim of eavesdropping
upon “electronic communications” could avail himself. The fact that these theories
may not ultimately pan out for a plaintiff does not mean that a court must create a
cause of action that will give him a victory. In holding that it is not necessary to
imply a cause of action for a victim of a statutory violation, courts look to whether
the violation of the statute can be redressed under other theories, not whether they
would actually be successful for the particular plaintiff in the case before them.
The Court therefore cannot imply a private cause of action under the IEA to
redress Plaintiff’s alleged injuries. Plaintiff’s request to amend his complaint to add
common law causes of action will be discussed below.
PLAINTIFF’S MOTION FOR RECONSIDERATION
In his Motion for Reconsideration, Plaintiff asks the Court to reconsider its
decision to bar him from presenting claims based on “use” or “disclosure” of his
communications under the ECPA. (Doc. 285). In his Response to Defendant
Morgan’s Motion for Summary Judgment on the question of whether he could be
held civilly liable under the ECPA on a “procurement” theory, Plaintiff, for the first
time, stated that he intended to proceed on an ECPA claim for “use” and/or
15
“disclosure” of his communications against at least Defendant Morgan. (Doc. 276 at
10-11). The Court noted that
[I]n Plaintiff’s First Amended Complaint, as well as throughout the
litigation of this case, Plaintiff has always alleged only “interception,”
and, in the case of Defendant Morgan, “direction” of others to intercept
(also known as “procurement,” discussed above), as the violations of
the ECPA he seeks to redress. (276 at 10). Plaintiff, Defendants, and
the Court have repeatedly characterized the claims as concerning
“interception,” and have never addressed the questions of “use” or
“disclosure” under the ECPA.
(Doc. 276 at 10-11). The fact that Plaintiff had apparently collected evidence, or
even admissions, of “use” or “disclosure” was “not sufficient to put Defendant
Morgan (or any of the other Defendants) on notice that they may have to defend
claims for “use” or “disclosure,” or to inform the Court that such claims were at
issue.” (Doc. 276 at 11). The Court therefore determined that Plaintiff had forfeited
these claims by failing to make them more explicit.
In his instant Motion for Reconsideration, Plaintiff argues that Defendants
had adequate notice of his intention to pursue claims based on “use” or “disclosure”
because evidence was gathered in discovery and cited in summary judgment
briefing that Defendants in fact “used” or “disclosed” Plaintiff’s communications.
The Court has already considered this argument, finding that “it is neither
Defendants’ nor the Court’s duty to scour his briefs for hints as to additional claims
he might be interested in raising.” (Doc. 276 at 11). When it became apparent that
the parties and the Court understood Plaintiff’s ECPA claims to be limited to
injuries arising from “interception” of his communications (or its “procurement,” in
the case of Morgan), Plaintiff should have informed the Court that he also intended
to seek redress for his alleged injuries caused by Defendants’ “use” or “disclosure” of
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his communications. Instead, he allowed Defendants and the Court to persist in the
belief that only “interception” or its “procurement” were at issue, complaining only
when his “procurement” claim against Morgan eventually foundered on the rocks of
the statutory text.
Finally, contrary to Plaintiff’s warnings, there will be no need to amend the
complaint after trial in order to “conform the pleadings to the evidence,” because
Federal Rule of Civil Procedure 15(b)(2) provides that such post-trial amendment
occurs only “[w]hen an issue not raised by the pleadings is tried by the parties'
express or implied consent.” Here, there cannot have been any “express or implied
consent of the parties” to try the issues of “use” or “disclosure,” as those issues have
never been affirmatively presented or litigated. As discussed further below, nothing
prevented Plaintiff from moving to amend his complaint as soon as he had gathered
the evidence to support these claims, which was, at the latest, over a year ago – his
poor strategic decision does not justify drawing out this litigation even further.7
Plaintiff’s Motion for Reconsideration is thus denied. Plaintiff’s request to
amend his complaint to add a ECPA claims for “use” or “disclosure” is discussed
below.
As it stands, the forfeiture of the “use” and “disclosure” claims only affects
Plaintiff’s claims against Defendant Morgan, as the Court has already determined
that the other Defendants “intercepted” Plaintiff’s communications within the
meaning of the ECPA. The “use” and “disclosure” claims, like the “interception”
claim, are subject to the exemptions for consent and actions in the ordinary course
of business that will be the subject of the upcoming jury trial, such that Defendants
Petrakis and Huffman will be subject to the same liability under “interception” as
they would if Plaintiff were allowed to proceed with “use” or “disclosure” claims
against them.
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PLAINTIFF’S REQUESTS TO AMEND
In the event that the Court determines that Plaintiff cannot proceed with an
IEA claim, Plaintiff requests leave to amend his complaint to add state common law
theories, including intrusion upon seclusion and invasion of privacy. Similarly, if
the Court declines to reconsider its determination that Plaintiff’s First Amended
Complaint does not include claims based on “use” or “disclosure,” Plaintiff requests
leave to add those claims to a new complaint. He asserts that the addition of these
theories would require no new discovery, but would instead be predicated solely on
facts he has already gathered.
Federal Rule of Civil Procedure 15(a)(2) provides that “The court should
freely give leave [to amend a complaint] when justice so requires.” However, it is
well-established that “[d]istrict courts have broad discretion to deny leave to amend
where there is undue delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, undue prejudice to the defendants, or where the amendment would be
futile.” Hukic v. Aurora Loan Services, 588 F.3d 420, 432 (7th Cir. 2009) (citing
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). The Court denies Plaintiff’s
request to amend his complaint to add new theories and claims.
Plaintiff initiated the instant suit in April 2010, well over three years ago.
Pursuant to a scheduling order, all discovery was to have been completed by March
15, 2012. (Doc. 153). Plaintiff now asserts that he adduced all the evidence needed
to support his proposed new theories during discovery, such that additional
discovery would not be needed. The obvious implication of this is that Plaintiff had
all the evidence needed to amend his complaint as he now proposes in March 2012,
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one year and four months ago. Plaintiff offers no real explanation for his delay; he
merely argues that the Court’s rulings since January 2013 somehow necessitate the
addition of the new theories.
Essentially, Plaintiff asks the Court to allow him to restructure his case now
that he knows that some of his original theories and claims will not be successful.
Plaintiff contends that this is only fair because the Court’s recent rulings have
considerably cut back on his potential to recover. His basic argument is “what’s good
for the goose is good for the gander:” if Defendants have been allowed to file motions
attacking the sufficiency of his claims at a late date, he should be allowed to remedy
this damage to his case by stating new, more-viable claims or legal theories. Adding
new theories and claims, though, is different from eliminating issues prior to trial.
The elements of Plaintiff’s claims have always been at issue in this litigation –
whether they were resolved prior to trial or by a jury, they have to be resolved, and
such resolution must be within the bounds of the applicable law. On the other hand,
Plaintiff’s request to amend contemplates the addition of new issues to the suit.
The Court is of course cognizant of the fact that federal plaintiffs need not
plead legal theories in their complaints, and that the addition of a new theory of
recovery, if based on the same alleged injury, does not necessarily add a new
“claim.” The implication of this is that a new legal theory (unlike a new claim) does
not fundamentally change the complaint, and cannot be considered an unfair
“surprise” to a defendant.8 Here, though, nothing prevented Plaintiff from
This distinction is applicable only to the new common law theories, as they
could be limited to the same actions and injuries forming the base of Plaintiff’s suit
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amending his complaint at least at the close of discovery if he discovered evidence
that would support different theories of recovery. The notion that Plaintiff was
“content” with his “right to present evidence” under Counts I, II, and III, and that
he thus “did not file redundant or overlapping claims” does not excuse the delay.
(Doc. 284 at 16). There was no such “right to present evidence” as to claims that
were not supported by the applicable law – as of December 2012, it appeared to the
Court that all the legal issues that could be resolved had been, but that appearance
did not create a “right to present evidence” as to defunct theories.9 Nothing to which
he was entitled was taken from Plaintiff by the Court’s ruling upon Defendants’
Motions for Summary Judgment. While the Court appreciates Plaintiff’s attempt to
simplify the case by not adding his duplicative theories when it became apparent
that they might be available, this was a strategic mistake on his part. Plaintiffs
cannot hold theories in reserve, just in case their original strategy does not pan out,
and add them when the case starts to look bad. Plaintiff has simply delayed too long
by waiting until just a few weeks prior to trial to seek leave to amend.
Moreover, despite Plaintiff’s contentions, the Court would almost certainly
have to allow Defendants time to conduct additional discovery if it allowed Plaintiff
thus far. On the other hand, the “use” and “disclosure” allegations would constitute
new claims, as they complain of different conduct and different resulting injuries.
Even if the Court had declined to consider Defendants’ recently-raised
arguments, the Court would have had a duty to ensure that the instructions
presented to the jury stated the law correctly – Plaintiff might have been able to
present all the arguments and evidence he wished, but the jury instructions would
have led to the same results that have now been obtained through the Court’s
rulings. For the sake of simplicity, clarity, and thoroughness of disposition, it is
preferable to resolve these legal questions through briefing and written orders,
rather than in jury instruction conferences.
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to amend, in order to develop any applicable defenses they may have to the new
theories, and Defendants would have to be permitted to file new dispositive motions
if there were any issues appropriate for the Court’s resolution. Plaintiff’s proposed
amendments would certainly significantly delay the trial. Again, the fact that
Defendants’ January 2013 Motion for Summary Judgment also delayed the trial is a
completely separate issue, as the elements of Plaintiff’s claims are always at issue,
while the addition of new theories introduces new issues to the case.10
The Court therefore denies Plaintiff’s requests to amend his complaint.
CONCLUSION
For the foregoing reasons, Plaintiff’s Count II is DISMISSED WITH
PREJUDICE, and Plaintiff’s Motion for Reconsideration (Doc. 285) is DENIED.
This matter will proceed with the Final Pretrial Conference on July 24, 2013 at
11:00 A.M., and jury trial beginning August 5, 2013.
Entered this 22nd day of July, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
The Court does not herein intend to express its approval of Defendants’ latefiled Motions for Summary Judgment and recent introduction of the question
regarding the applicability of the IEA within the proposed Final Pretrial Order and
proposed jury instructions, but merely to distinguish between untimely actions
attacking Plaintiff’s existing claims and late additions to the case.
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