Burrow v. Sybaris Clubs International, Inc. et al
Filing
31
MEMORANDUM OPINION AND ORDER: Signed by the Honorable Harry D. Leinenweber on 11/8/2013:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT C. BURROW, on Behalf of
Himself and Others Similarly
Situated,
Plaintiffs,
v.
Case No. 13 C 2342
Hon. Harry D. Leinenweber
SYBARIS CLUBS INTERNATIONAL,
INC., RANDALL D. REPKE, and
CHARLENE FARRELL,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Defendants’ Motion to Dismiss.
For
the reasons stated herein, the Motion is denied.
I.
BACKGROUND
Plaintiff Robert C. Burrow (hereinafter, “Burrow”) brought
a
class-action
lawsuit
against
Defendants
Sybaris
Clubs
International, Inc. (“Sybaris”), Randall D. Repke, and Charlene
Farrell (the “Defendants”) on March 28, 2013.
As alleged in the
Complaint, Sybaris is a chain of five motel suites that cater to
customers looking for a romantic paradise.
Sybaris employed
Burrow as a reservation desk clerk from March 2004 through May
2007 and from April 2008 through May 2013.
Burrow’s position at
Sybaris required him to take calls from the reservation line as
well as check in guests.
Given the nature of Sybaris’ business,
those
phone
calls
often
included
discussion
of
intimate,
personal, or confidential information.
In 2011, Defendants installed a new telephone system, known
as a ShoreTel Sky System.
The new system routed all incoming
calls through a central processer and allowed Sybaris management
and other employees to listen live to customer and employee
conversations.
In addition, the system recorded all calls made
by or to the reservation desk at each Sybaris location.
The
recordings were saved on computer servers and could be accessed
through a web interface.
Sybaris did not inform its employees of the new recording
telephone system, and most found out about it through speaking
with managers or work gossip.
Burrow first learned of the new
phone system at least a month after it was installed.
He alleges
that, during that time, he received personal and work-related
phone calls while he was working the reservation desk.
The Complaint alleges that Defendants invaded his right of
seclusion and violated the Federal Wiretap Act, the Illinois
Eavesdropping Statute, the Indiana Wiretap Act, and the Wisconsin
Wiretap Act.
Burrow alleges that his rights of privacy and the
rights of other callers or employees who made phone calls from
work were violated when Sybaris installed the new recording
system and did not inform employees or customers.
responded by moving to dismiss under Rule 12(b)(6).
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Defendants
II.
LEGAL STANDARD
A Motion to Dismiss under Rule 12(b)(6) requires the Court
to analyze the legal sufficiency of the complaint, not the
factual merits of the case.
Autry v. Nw. Premium Servs., Inc.,
144 F.3d 1037, 1039 (7th Cir. 1998).
The complaint must do more
than recite the elements of a violation; it must plead with
sufficient particularity so that the right to relief is more than
a mere conjecture.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
III.
A.
Plaintiff
ANALYSIS
The Federal Wiretap Act – Count I
claims
that
Defendants
violated
the
Federal
Wiretap Act by using Sybaris’ telephone system to record Burrow’s
oral communications without his knowledge or consent.
The
Federal
who
Wiretap
Act
imposes
liability
on
anyone
“intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any wire,
oral, or electronic communication.”
18 U.S.C. § 2511(1)(a).
“Intercept” is defined as “the aural or other acquisition of the
contents of any wire, electronic, or oral communication through
the use of any electronic, mechanical, or other device.”
U.S.C. § 2510(4).
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18.
Defendants assert that their behavior is protected by what
is known as the “business extension exception.” The exception is
available if Defendants can establish that (1) the recording
device used was a “telephone or telegraph instrument” furnished
by a “provider of wire or electronic communication service in the
ordinary course of its business” (the “device” prong); and (2)
Defendants used the device “in the ordinary course of [their]
business” (the “ordinary course of business” prong).
18 U.S.C.
§ 2510(5)(a)(I).
A device is a “telephone or telegraph instrument” if it
furthers the use of or enhances the telecommunications system
functionally. Sanders v. Robert Bosch Corp., 38 F.3d 736, 740-41
(4th Cir. 1994).
The exception does not apply to “apparatuses
capable of tapping a telephone or wire or otherwise seizing a
communication,” because the exception is designed to “exclude the
mere use of an ordinary telephone in its ordinary manner to place
or receive a call.”
United States v. Chiavola, 744 F.2d 1271,
1275 (7th Cir. 1984).
Plaintiff alleges that the Defendants installed a ShoreTel
Sky phone system and configured it intentionally to record
automatically all incoming and outgoing phone calls.
Compl.
¶ 10. The system did not record the conversations on the device;
rather, it was linked to computer servers and archived in a
system separate from the telephone itself.
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Additionally, the
recordings
were
available
on
a
web
interface
to
be
freely
listened to and sent between management and employees. The facts
alleged in the Complaint show that Defendants used a recording
system that did not further the use of the telephone.
The weight of authority holds that recording systems are not
covered by the exception.
See, Williams v. Poulos, 11 F.3d 271,
280 (1st Cir. 1993) (collecting cases). As in Sanders, recording
of phone calls “in no way furthers [Defendant’s] communication
system,” and the exception’s first prong is not met.
Id.
Based
on the facts alleged in the Complaint, the exception does not
apply, and Plaintiff’s claim for relief under the Federal Wiretap
Act is plausible.
Defendant’s Motion to Dismiss Count I is
denied.
B.
Illinois Eavesdropping – Count II
Count II relies on Illinois’s eavesdropping statute, 720
Ill. Comp. Stat. 5/14-1, et. seq.
held
the
statute
Recently, the Seventh Circuit
unconstitutional
recording of police conversations.
F.3d 583, 608 (7th Cir. 2012).
as
applied
to
bystander
See, ACLU v. Alvarez, 679
In Alvarez, the Court held that
the First Amendment protected the Plaintiff’s right to record
openly
police
public.
Id.
officers
performing
their
official
duties
in
The Court stressed that the Plaintiff sought to
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record, and thus preserve, conversations that any bystander
within earshot could have overheard.
Id. at 605.
First, Defendants appear to argue that the reasoning in
Alvarez
applies
to
this
case,
and
thus
the
unconstitutional as applied to the Defendant.
involves
secret
recording
of
private
statute
is
But this case
and
confidential
conversations, not open and obvious recording of conversations
that occur in public.
And this case does not implicate the same
concerns about public officials performing official duties.
To
put it simply, the First Amendment does not entitle Defendants to
eavesdrop on private conversations.
Next,
Defendants
unconstitutional
severed.
assert
because
the
that
the
offending
entire
statute
portions
is
cannot
be
“The inquiry into whether a statute is severable is
essentially an inquiry into legislative intent.”
Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999).
“Unless it is evident that the legislature would not have enacted
those provisions which are within its power, independently of
that which is not, the invalid part may be dropped if what is
left is fully operative as a law.”
Id.
the
after
balance
of
the
legislation,
Courts consider whether
the
unconstitutional
portion is removed, “is capable of functioning independently.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).
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The
Illinois
Supreme
Court
has
explained
that
the
eavesdropping statute “was enacted to protect the individual from
the
interception
of
communication
intended
to
be
private.”
People v. Beardsley, 503 N.E.2d 346, 349 (Ill. 1986).
Alvarez
focused on what were essentially public communications. Alvarez,
679 F.3d at 605.
Because the application found invalid involved
what were essentially public communications, there is no reason
why the statute cannot function independently of the limitation
imposed by the Seventh Circuit and restrict interception of
private
speech.
Indeed,
it
is
a
basic
principle
of
constitutional law that “a statute may be invalid as applied to
one state of facts and yet valid as applied to another.”
Ayotte
v. Planned Parenthood of N. New England, 546 U.S. 320, 329
(2006).
Given the legislature’s focus on protecting private
communications, it is evident that “the legislature [would] have
preferred what is left of its statute to no statute at all.”
Id.
Defendant’s Motion to Dismiss Count II is denied.
C.
Indiana and Wisconsin Claims – Counts III and IV
Plaintiff’s class-action complaint seeks relief under the
Indiana and Wisconsin Wiretap laws.
Although Plaintiff is not a
resident of either state and did not suffer any injury in either
state, he asserts that potential class members may have suffered
injuries under those laws.
Defendants counter that Plaintiff
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lacks standing to bring a claim under Indiana and Wisconsin law
for the absent plaintiffs.
This
Court
must
be
sure
of
proceeding to the merits of the case.
527 U.S. 815, 831 (1999).
its
jurisdiction
before
Ortiz v. Fireboard Corp.,
But the Supreme Court has instructed
that class certification issues are “logically antecedent” to
Article III concerns, and thus may be resolved first.
Id.
Thus,
it is routine for Courts in this District to determine “the name
plaintiff[‘s]
capacity
to
represent
individuals
states” before resolving standing concerns.
from
other
In re Aftermarket
Filters Antitrust Litig., No. 08-C-4883, 2009 WL 3754041, at *5
(N.D. Ill. Nov. 5, 2009).
Therefore, the Motion to Dismiss
Counts III and IV based on lack of standing is denied.
D.
Intrusion upon Seclusion – Count V
To state a claim for intrusion upon seclusion, a plaintiff
must plead four elements:
“(1) an unauthorized intrusion or
prying into the plaintiff's seclusion; (2) an intrusion that is
offensive or objectionable to a reasonable person; (3) the matter
upon which the intrusion occurs is private; and (4) the intrusion
causes anguish and suffering.”
Johnson v. K Mart Corp., 723
N.E.2d 1192, 1195-96 (Ill. Ct. App. 2000).
The Complaint alleges facts that support all four elements.
Plaintiff did not consent to the recording of his phone calls.
Compl. ¶ 12.
Plaintiff pled that he received both work and
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personal phone class that were recorded without his consent. Id.
Thus, Plaintiff may be able to prove the second and third
elements: that the intrusion was offensive, and that the matter
was private.
Finally, Plaintiff has alleged that the intrusion
caused anguish and suffering.
are
sufficient
to
“give
Id. at ¶ 57.
the
defendant
These allegations
fair
notice
of
what . . . the claim is and the grounds upon which it rests.
Twombly, 550 U.S. at 555.
The Motion to Dismiss Count V is
denied.
III.
CONCLUSION
For the reasons stated herein, the Defendants’ Motion to
Dismiss [ECF No. 14] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date: 11/8/2013
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