Epstein v. Epstein et al
Filing
36
MEMORANDUM Opinion and Order: For the foregoing reasons, the Court grants defendants motions to dismiss, R. 17 and 23 . The Court dismisses Counts I, II, III, and IV of plaintiffs First Amended Complaint with prejudice. The Court declines to exer cise supplemental jurisdiction over plaintiffs intrusion-upon-seclusion claim (Count V) and dismisses it without prejudice. Civil case terminated. Defendant Epstein's motion to dismiss 14 is denied as moot. Signed by the Honorable Thomas M. Durkin on 4/20/2015:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARRY EPSTEIN,
PLAINTIFF,
v.
PAULA EPSTEIN AND JAY FRANK,
DEFENDANTS.
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No. 14 C 8431
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Plaintiff Barry Epstein (“Barry”) has sued defendants Paula Epstein
(“Paula”), his wife, and Jay Frank, her divorce attorney, alleging: (1) violations of
the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. §§ 2510-2520; and
(2) state-law invasion of privacy (“intrusion upon seclusion”). For the following
reasons, the Court dismisses Barry’s ECPA claims with prejudice, and declines to
exercise supplemental jurisdiction over his state-law claim for invasion of privacy.
BACKGROUND
In June 2007, Paula accessed Barry’s private computer without his
“permission, knowledge or consent.” R. 2 ¶¶ 9, 12. Barry alleges “on information and
belief” that she caused a “rule” to be created on his computer whereby emails to and
from his email accounts were automatically forwarded to Paula’s email accounts. Id.
at ¶ 13. On May 23, 2011, Paula filed a petition for dissolution of marriage in the
Circuit Court of Cook County, Illinois. Id. at ¶ 20. 1 On October 8, 2014, Barry—
through counsel—served a Request to Produce Documents (the “Request”) on
Paula’s divorce attorney, defendant Jay Frank. Id. at ¶ 24. The Request directed
Paula to produce “any and all communications,” including emails and photographs,
that “allegedly relate[] to infidelity as alleged by PAULA EPSTEIN or otherwise
extramarital relationship [sic].” Id. at ¶ 25; see also R. 22-1 (“Respondent’s Updated
Request to Produce Documents,” attached as Exhibit A to plaintiff’s First Amended
Complaint (“FAC”)). The Request further specified that the requested materials
“pertain but are not limited to the following individuals: PAULA EPSTEIN, BRETT
EPSTEIN,
ROSEVIVIAN
HARAYO,
JANCIE
SALDANA,
AND
CARLA
LIBERMAN.” R. 22-1 at 1. Barry alleges that on October 10, 2014, Paula disclosed
to Frank the emails she had forwarded from Barry’s email accounts. R. 22 ¶ 27.
Frank, in turn, delivered copies of the emails, and three photographs, to Barry’s
counsel on October 23-24, 2014. Id. at ¶ 33. Barry alleges that, after receiving the
production, he “could not concentrate on anything other than protecting and
enforcing his rights, after learning that his personal, private, and confidential
communications with third persons were revealed to other individuals.” Id. at ¶ 38.
He filed this federal lawsuit three days later. Id. at ¶ 39. 2
As far as the complaint reveals, Barry and Paula are still married as of this date.
See R. 22 ¶ 9 (alleging that the parties “have been married for more than 44 years”)
(emphasis added). In any event, their marriage status is irrelevant to the issues in
this case.
1
Barry also alleges that he reported the defendants’ alleged conduct to the Federal
Bureau of Investigation, the Chicago Police Department (Cyber Crimes Division),
2
Paula and Frank moved to dismiss Barry’s original complaint because he did
not allege that the defendants intercepted the emails “contemporaneously” with
their transmission. See, e.g., Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113
(3d Cir. 2003) (requiring contemporaneous interception to prevail under 18 U.S.C. §
2511); see also R. 15 at 1, R. 18 at 4. In response to the defendants’ motions, Barry
amended his complaint by, among other things, adding the following allegation:
The interception was contemporaneous with the transmission insofar
as the electronic messages destined for Plaintiff’s receipt were
forwarded to Defendant PAULA EPSTEIN at the same time they were
received by the respective servers of the aforementioned domains, to
wit, yahoo.com and rnco.com.
R. 22 ¶ 18. Barry also attached to his amended complaint unredacted copies of the
“personal, private, and confidential communications” that he alleges Paula
intercepted. Id. at ¶ 28; see also R. 22-3. 3 Each email indicates the date on which it
was originally sent to (or from) Barry’s email account, and the date on which it was
forwarded to Paula’s email account. In most cases, the emails were forwarded to
Paula’s account months, sometimes years, after Barry sent or received the emails.
the Cook County State’s Attorney’s Office, and the Attorney Registration and
Disciplinary Commission. R. 22 ¶ 56.
See El-Bey v. Vill. of S. Holland, 513 Fed. Appx. 603, 604-05 (7th Cir. 2013) (A
court may consider materials attached to the complaint without converting a motion
to dismiss into a motion for summary judgment.). The Court is hard-pressed to
understand why Barry filed these materials in a publically available document. As
the defendants point out, see R. 24 at 1 and R. 35 at 7, he could have filed the
materials under seal if he believed that their contents were “private,” but integral to
his claims.
3
The shortest interval between an original email, and the email forwarding it to
Paula’s account, is approximately three hours. R. 22-3 at 45. 4
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “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 “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
One email—Barry’s response to “J Geovanis,” at Bates number 000046—does not
include a time stamp. See R. 22-3 at 41. It appears, however, that it was forwarded
to Paula’s account on the same day Barry sent it (March 14, 2012). Id.
4
ANALYSIS
Barry’s FAC alleges ECPA claims against Paula for intercepting electronic
communications (Counts I and II), and against Paula (Count III) and Frank (Count
IV) for disclosing and using those communications. He has filed his state-law
intrusion-upon-seclusion claim against Paula, only (Count V). The defendants
contend that Barry has pled himself out of court.
I.
Contemporaneous Interception
Under the ECPA, any person who “intentionally intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor to intercept, any . . .
electronic communication” is subject to a fine, imprisonment, and/or damages. 18
U.S.C. §§ 2511(1)(a), (4)(a), and 2520. The statute defines the term “intercept” 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.” Id.
at § 2510(4). Prior to 1986, the Federal Wiretap Act applied only to wire and oral
communications. See Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457,
460 (5th Cir. 1994). The statute then—as now—did not expressly require
contemporaneous interception. But courts reasoned that the requirement best
effectuated Congress’s apparent intent to bar individuals from using devices to
acquire private communications. See, e.g., United States v. Turk, 526 F.2d 654, 65758 (5th Cir. 1976) (“The words ‘acquisition . . . through the use of any . . . device’
suggest that the central concern is with the activity engaged in at the time of the
oral communication which causes such communication to be overheard by uninvited
listeners.”). It also preserved the distinction in the statute between “interception”
and “disclosure.” Id. at 658. When Congress amended the Federal Wiretap Act in
1986 to cover electronic communications, it did not disturb the prevailing judicial
interpretation of “interception.” See Steve Jackson Games, 36 F.3d at 462
(concluding that the legislative history of the 1986 amendments “made it crystal
clear that Congress did not intend to change the definition of ‘intercept’ as it existed
at the time of the amendment”). Since that time, “[e]very circuit court to have
considered the matter has held that an ‘intercept’ under the ECPA must occur
contemporaneously with transmission.” Fraser, 352 F.3d at 113 (citing United
States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); and Steve Jackson Games, 36 F.3d at
464).
The Seventh Circuit has not expressly adopted the contemporaneity
requirement, but United States v. Szymuszkiewicz, 622 F.3d 701, 705 (7th Cir. 2010)
suggests that it may do so in the appropriate case. A jury convicted Szymuszkiewicz
under § 2511(1)(a) for using a “rule” to forward to his own account emails sent by
third parties to his supervisor. Id. at 702. On appeal, Szymuszkiewicz argued that
“any message would have reached its destination ([the victim’s] inbox) before a copy
was made for him.” Id. at 703. The email was not “in flight,” therefore he did not
“intercept” it. Id. The Seventh Circuit rejected Szymuszkiewicz’s argument that the
“contemporaneity” requirement imposed by other circuits supported his theory:
Several circuits have said that, to violate § 2511, an interception must
be “contemporaneous” with the communication. [Citing Fraser, Steve
Jackson Games, Konop, and Steiger.] Szymuszkiewicz sees this as
support for his “in flight” reading, but it is not. “Contemporaneous”
differs from “in the middle” or any football metaphor. Either the server
in Kansas City or Infusino’s computer made copies of the messages for
Szymuszkiewicz within a second of each message’s arrival and
assembly; if both Szymuszkiewicz and Infusino were sitting at their
computers at the same time, they would have received each message
with no more than an eyeblink in between. That’s contemporaneous by
any standard. Even if Infusino’s computer (rather than the server) was
doing the duplication and forwarding, it was effectively acting as just
another router, sending packets along to their destination, and
Councilman’s [United States v. Councilman, 418 F.3d 67 (1st Cir.
2005)] conclusion that the Wiretap Act applies to messages that reside
briefly in the memory of packet-switch routers shows that the Act has
been violated.
Id. at 705-06 (emphasis added). At least one district court has construed
Szymuszkiewicz to require contemporaneous interception in § 2511 cases. See Shefts
v. Petrakis, No. 10-cv-1104, 2013 WL 489610, at *1 n.2 (C.D. Ill. Feb. 8, 2013). The
Court would not go that far, but certainly there is nothing in Szymuszkiewicz
suggesting that the Seventh Circuit would reject the requirement.
The Court concludes that the cases cited above are persuasive and, consistent
with what appears to be the unanimous view of courts to date, construes § 2511 to
require
contemporaneous
interception.
Barry’s
contrary
arguments
are
unpersuasive. He argues that a “majority of circuits . . . have either not
contemplated the definition of intercept with the Wiretap Act or have not ruled that
the Wiretap Act requires interception to be contemporaneous with its transmission.”
R. 31 at 5 (emphasis in the original). But the only case that he cites holding that the
statute does not require a contemporaneous interception—the Ninth Circuit’s
decision in Konop v. Hawaiian Airlines, Inc., 236 F.3d 1035, 1044-46 (9th Cir.
2001)—was later withdrawn and superseded by a decision adopting that
requirement. See Konop v. Hawaiian Airlines, Inc., 262 F.3d 972 (9th Cir. 2001)
(withdrawing the just-cited decision); see also Konop, 302 F.3d at 878 (“We therefore
hold that for a website such as Konop’s to be ‘intercepted’ in violation of the Wiretap
Act, it must be acquired during transmission, not while it is in electronic storage.”).
And unlike Szymuszkiewicz and Councilman, it is unnecessary in this case to delve
into the technological minutiae of “packet switching” and email protocols. Cf.
Szymuszkiewicz, 622 F.3d at 704; Councilman, 418 F.3d at 69-70. The alleged
interception in this case (retransmission hours or days after the initial email was
sent or received) was not “contemporaneous” under any reasonable definition of that
word. Indeed, after amending his complaint to allege that Paula contemporaneously
intercepted his emails, he effectively abandoned that allegation in his responses to
the defendants’ motions to dismiss. See R. 31 at 6-7 (arguing that discovery may
reveal other emails that Paula did contemporaneously intercept). Finally, in a last
ditch effort to avoid dismissal, Barry argues that “the attached e-mails do not
represent all intercepted e-mails,” and that he should be allowed to conduct
discovery to find out whether Paula “has intercepted any of his other e-mails . . . .”
Id. This is pure speculation. The Court grants Paula’s motion with respect to
Counts I and II and dismisses those claims with prejudice.
II.
Intentional Disclosure and Use
Counts III and IV of Barry’s FAC allege that Paula and Frank unlawfully
“disclosed” and “used,” or “endeavored” to disclose and use, information that they
knew (or had reason to know) was obtained through unlawful interception. See 18
U.S.C. § 2511 (1)(c) (making it unlawful to disclose, or endeavor to disclose,
intercepted communications) and (d) (making it unlawful to use, or endeavor to use,
intercepted communications). For reasons the Court just articulated, Barry has not
alleged an “interception” within the statute’s meaning. So, his “disclosure” and “use”
claims necessarily fail and the Court dismisses those claims (Counts III and IV)
with prejudice.
Even if Barry could clear this initial hurdle, his claims against Frank would
still fail. He claims that Frank unlawfully disclosed electronic communications to
Barry’s own attorney in response to a document request that Barry served on Paula
in the underlying divorce case. Whether or not the statute authorizes a party to
disclose intercepted communications in response to a civil discovery request is
beside the point. Cf. R. 32 at 8 (arguing that the statute “does not identify prior
consent as an authorized means to disclose or use intercepted electronic
communications.”) (emphasis in original). This is a civil suit for damages, and Barry
cannot plausibly claim that he was damaged when Frank disclosed the allegedly
intercepted materials to Barry’s own attorney. His claim against Frank for using, or
endeavoring to use, intercepted communications is also dubious. The premise of this
claim is that Frank intended to use the materials, purportedly evidenced by Paula’s
notations on the documents (mostly consisting of underlining) and the fact that
Frank Bates-stamped the documents. See R. 22 ¶ 34; R. 32 at 12. Barry does not
allege that Frank used (or endeavored to use) the documents, and the statute does
not prohibit receipt with the mere intent to use unlawfully intercepted
communications.
III.
Invasion of Privacy
Because the Court has dismissed Barry’s federal claims, it declines to
exercise supplemental jurisdiction over his state-law claim for intrusion upon
seclusion. See RWJ Management Co., Inc. v. BP Products North America, Inc., 672
F.3d 476, 479 (7th Cir. 2012) (there is a “presumption” that the district court will
decline to exercise supplemental jurisdiction if it has dismissed all federal claims
before trial); see also 28 U.S.C. § 1367(c)(3).
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motions to dismiss,
R. 17 and 23. The Court dismisses Counts I, II, III, and IV of plaintiff’s FAC with
prejudice. The Court declines to exercise supplemental jurisdiction over plaintiff’s
intrusion-upon-seclusion claim (Count V) and dismisses it without prejudice.
ENTERED:
Dated: April 20, 2015
Honorable Thomas M. Durkin
United States District Judge
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