Domoney v. Class Ltd
Filing
29
MEMORANDUM AND ORDER: 11 Motion to Dismiss defendant's counterclaim is denied. 7 Motion to Dismiss is denied as moot. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 9/18/2013. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAIGE S. DOMONEY,
Plaintiff,
v.
Case No. 13-2215-SAC
CLASS LTD,
Defendant.
MEMORANDUM AND ORDER
This case comes before the Court on Plaintiff’s motion to dismiss the
Amended Counterclaim filed by the Defendant.
Uncontested Facts
The Court finds the following facts to be uncontested for purposes of
this motion.
Plaintiff was hired by Defendant in October of 2011. Plaintiff signed
Defendant’s "Confidentiality Agreement," which defines "Confidential
Information" to include personnel information such as “performance reviews
and disciplinary actions.” That agreement prohibits disclosure of
“Confidential Information” for any reason other than the performance of job
duties, and states that any prohibited disclosure constitutes misuse which
could result in legal action against the employee.
In January of 2013, Plaintiff notified Defendant of her medical
condition and of her need for FMLA leave. Within a week thereafter,
Defendant’s CEO and Defendant’s Vice President for Administration
conducted a confidential personnel meeting in an attempt to resolve ongoing
workplace disputes between Plaintiff and a co-employee. Plaintiff attended
the meeting and surreptitiously recorded the conversation by use of her cell
phone. She then sent a copy of the recording to her mother, using her work
email to do so. Dk. 19, p. 5-6. That same day, Defendant terminated
Plaintiff for the stated reason of “department restructuring.”
Thereafter, Plaintiff sued Defendant for allegedly hacking into her
personal email and Facebook accounts without her permission in violation of
the Stored Communications Act, 18 U.S.C. §§ 2701 et seq., for invading her
privacy, and for violating the FMLA. A proposed amendment seeks to add an
ADA claim. Defendant answered and counterclaimed. Defendant’s amended
counterclaim generally asserts that Plaintiff violated the Federal Wiretap Act
by surreptitiously recording the February 5th meeting and by sending a copy
of that recording to a third party. The motion to dismiss is directed to that
counterclaim.
Motion to Dismiss Standards
“The court's function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess
whether the plaintiff's ... complaint alone is legally sufficient to state a claim
for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th
Cir. 1991). The court accepts all well-pled factual allegations as true and
2
views these allegations in the light most favorable to the nonmoving party.
United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied,
130 S.Ct. 1142 (2010). The court, however, is not under a duty to accept
legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868, 884 (2009). “Thus, mere ‘labels and conclusions'
and ‘formulaic recitation of the elements of a cause of action’ will not
suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 2012 WL 364058, at *2
(10th Cir. Feb. 6, 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
The Supreme Court recently clarified the requirement of facial
plausibility:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim for relief that is
plausible on its face.” Id. [ Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)) 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. Id. at
556. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
Defendant has acted unlawfully. Id. Where a complaint pleads facts
that are “merely consistent with” a Defendant's liability, it “stops short
of the line between possibility and plausibility of ‘entitlement to relief.’
” Id. at 557.
Iqbal, 129 S.Ct. at 1949. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
“[C]ourts should look to the specific allegations in the complaint to
determine whether they plausibly support a legal claim for relief .” Alvarado
v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007). “While the
3
12(b)(6) standard does not require that Plaintiff establish a prima facie case
in her complaint, the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible claim.” Khalik, 2012 WL
364058, at *3 (citations omitted).
Matters Outside the Pleading
In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to
assessing the legal sufficiency of the allegations contained within the four
corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th
Cir. 2008). In considering the complaint in its entirety, the Court also
examines documents “incorporated into the complaint by reference,” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and
documents attached to the complaint, Rosenfield v. HSBC Bank, USA, 681
F.3d 1172, 1189 (10th Cir. 2012) (quotations and citations omitted). On a
motion to dismiss, “[w]here a party has moved to dismiss under Rule
12(b)(6) for failure to state a claim … and matters outside of the pleadings
have been presented to the court for consideration, the court must either
exclude the material or treat the motion as one for summary judgment.” Id,
681 F.3d at 1189 (quotations and citations omitted).
Attached to Plaintiff’s motion to dismiss is Plaintiff’s declaration under
penalty of perjury stating that she was, at all times, a party to the February
5th conversation she recorded, and that she “sent a copy of the recording by
email to [her] mother’s email account, so that [Plaintiff] would have a
4
backup copy for her protection.” Dk. 11, Exh. 1. This declaration goes to the
determinative issue in this motion – what Plaintiff’s intent was at the time
she recorded the conversation. The parties do not dispute that Plaintiff was a
party to the conversation, but the parties hotly dispute what Plaintiff’s intent
was at the time. It would be premature and likely an abuse of discretion to
convert the motion to a summary judgment motion on the issue of intent,
since to the Court’s knowledge no discovery has yet been done on that
controlling issue. Accordingly, the Court shall not consider the Plaintiff’s
declaration in deciding the motion to dismiss, and shall rely solely on those
facts asserted in the counterclaim or uncontested by the parties in their
motions and memoranda.
Allegations of Counterclaim
Defendant claims that Plaintiff violated the Act by: 1) intentionally
intercepting Defendant’s confidential communications during the Meeting; 2)
intentionally disclosing and misusing the contents of the recording of the
Confidential Personnel Meeting; 3) misusing and/or endeavoring to misuse
the contents of the recording, including, but not limited to, during this
litigation; and 4) intentionally intercepting Defendant’s confidential
communications for the purpose of committing a tortious act in violation of
the laws of the United States and of the State of Kansas. Dk. 8, p. 11-12.
Defendant seeks actual and punitive damages, and attorney’s fees under the
Act.
5
Analysis
The Federal Wiretap Act prohibits, with specified exceptions: (1) the
intentional interception of “any wire, oral, or electronic communication,” 18
U.S.C. § 2511(1)(a); and (2) the intentional disclosure or use of the
contents of any such illegally intercepted communication if the persons who
disclose or use it did so “knowing, or having reason to know,” the
communication was intercepted in violation of the Federal Wiretap Act, 18
U.S.C. § 2511(1)(c) and (d).
One of the specified exceptions to the Act's prohibition against
interception of communications is “one-party consent.”
(d) It shall not be unlawful under this chapter for a person not acting
under color of law to intercept a wire, oral, or electronic
communication where such person is a party to the communication …
unless such communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the Constitution
or laws of the United States or of any State.
18 U.S.C. § 2511(2)(d). This exception reflects the underlying policy of
Kansas law, as well as of federal law, that “[w]hen one purports to engage in
a private conversation the burden is upon him to make certain he has not
misplaced his confidence in the person with whom he is communicating.”
State v. Roudybush, 235 Kan. 834, 843-44 (1984). See Hoffa v. United
States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966) (the
Fourth Amendment affords no protection to “a wrongdoer's misplaced belief
that a person to whom he voluntarily confides his wrongdoing will not reveal
6
it.”) Thus under Kansas law, as under federal law, it is generally not illegal to
record a conversation to which one is a party.
For purposes of this motion, the Court assumes, without deciding, that
the parties’ conversation on Feb. 5th was “oral communication” that was
“intercepted” when Plaintiff recorded it via her cell phone. The parties agree
that the Plaintiff was a party to the conversation she recorded. See 18 USC §
2510(2), (4), (5). The sole dispute is whether Plaintiff recorded the
conversation “for the purpose of committing” a tortious act. See Dks. 11, 19,
25.
The Amended Counterclaim specifies the following “tortious acts”
which Plaintiff allegedly intended to commit: breach of duty of loyalty;
breach of fiduciary duty; breach of duty of confidentiality, invading the
privacy of the Defendant’s employees whose communications she
intercepted; and, violation of 18 U.S.C. § 1030 by exceeding authorized
access to a computer provided by Defendant, and obtaining information from
a protected computer by using the Defendant’s email and computer systems
to wrongfully disclose confidential information. Dk. 8, p. 12.
Plaintiff contends this pleading is too conclusory, as was the one
dismissed in Phillips v. Bell, 365 Fed.Appx. 133, 136-137, 2010 WL 517629,
2 (10th Cir. 2010). In Phillips, the pleading alleged one party recorded
telephone conversations without the other party’s knowledge and consent
for the purpose of committing a criminal or tortious act, including “invasion
7
of privacy, extreme and outrageous conduct, intentional infliction of
emotional distress, defamation of character, and/or improper recording of
private communications for improper use and disclosure.” 365 Fed.Appx. at
136. The Tenth Circuit noted the formulaic recitation of the elements of a
claim, and found the allegations to be conclusory and not entitled to be
assumed true, as in Iqbal. But that finding was supported by the Court’s
underlying finding that the claims were not plausible:
However, even if we view the facts in Ms. Phillips's complaint as
true and, thus, in a light most favorable to her, the complaint also fails
to meet the plausibility requirement. Ms. Phillips's recitation of the
statutory elements and string of possible reasons for Mr. Young's
recording of their conversations is “so general that [it] encompass[es]
a wide swath of conduct,” Robbins, 519 F.3d at 1247, and lacks the
necessary factual enhancements to get it from the “possibility” of
misconduct to a “plausibility” of such misconduct required for relief.
Twombly, 550 U.S. at 557, 127 S.Ct. 1955. This is because disclosure
of the recordings' contents for the purposes Ms. Phillips claims, while
possible, would have clearly inculpated Mr. Young in the crime of
murdering her ex-husband. As a result, it is fairly implausible he would
use such self-damning information for the purposes she contends,
including invading her privacy, intentionally inflicting emotional
distress, or defaming her character.
Phillips, 365 Fed.Appx. at 141 (emphasis added).
Here, unlike in Phillips, nothing suggests it implausible that Plaintiff
would use the information on the recording for the tortious purposes alleged
by Defendant. Plaintiff argues that her assertion of a proper purpose renders
Defendant’s assertion of a tortious purpose implausible, but to reach that
conclusion would require the Court to make a credibility call– something it
cannot do based on the face of the pleading. Moreover, the only evidence of
8
Plaintiff’s purpose or intent at the time she recorded the conversations is her
declaration which, as noted above, the Court cannot consider in this motion
to dismiss.
The Court believes it the better course to determine one’s intent based
upon evidence of intent, rather than to conclude at this early stage of
litigation that no plausible claim has been made. See e.g., By-Prod Corp. v.
Armen-Berry Co., 668 F.2d 956, 959 (7th Cir. 1982) (granting summary
judgment because “a desire to make an accurate record of a conversation to
which you are a party is a lawful purpose under the statute even if you want
to use the recording in evidence.”); Moore v. Telfon Communications Corp.,
589 F.2d 959, 965–66 (9th Cir. 1978) (affirming jury verdict, finding
Congress did not intend to prohibit recording a conversation when its
purpose was to preserve evidence of extortion directed against the
recorder); Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir. 1971) (affirming
judgment following a jury verdict; finding that recording a conversation for
possible later use as impeachment does not violate the Act); Consumer
Electronic Products, Inc. v. Sanyo Elec., Inc., 568 F.Supp. 1194, 119798 (D. Colo. 1983) (granting summary judgment because recording of
telephone conversation to acquire evidence of possible wrongdoing in
connection with contemplated litigation was not criminal or tortious act
giving rise to claim for damages).
9
Although the Tenth Circuit has not so held, the Court believes that one
must allege sufficient facts to support an inference that the offender
intercepted the communication for the purpose of committing a tortious or
criminal act that is independent of the act of recording. See Caro v.
Weintraub, 618 F.3d 94, 101-02 (2d Cir. 2010); Smith v. NWM-Oklahoma,
LLC, Inc., 2008 WL 2705047, 3 -5 (W.D.Okla. 2008) (finding the pleader
must show that the purpose of the interception was “to facilitate further
impropriety.”). That impropriety must be tortious or criminal in nature. It is
questionable whether this requirement is met here, but the Court liberally
construes Defendant’s allegation that Plaintiff intercepted the
communications “for the purpose of committing” the enumerated tortious
acts, to assert torts independent of the act of recording. “[B]ecause
dismissal under Rule 12(b)(6) ‘is a harsh remedy, ... a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’ ”
Tyler v. Tsurumi (America), Inc., 425 Fed. Appx. 702, 704 (10th Cir. 2011)
(quoting Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009) (citations and quotations omitted). Such is the case here.
IT IS THEREFORE ORDERED that the Plaintiff’s motion to dismiss
Defendant’s counterclaim (Dk. 11) is denied.
IT IS FURTHER ORDERED that Plaintiff’s prior motion to dismiss (Dk.
7) is denied as moot.
10
Dated this 18th day of September, 2013, at Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?