Levin v. ImpactOffice LLC et al

Filing 22

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/10/2017. (aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

ANDREW P. LEVIN,
JAMES HARD,
MELISSA EDWARDS,
DANIEL J. CHAMBERLIN and
ANGELA DUNHAM,
Plaintiffs,
Civil Action No. TDC-16-2790

v.
IMP ACTOFFICE LLC and
OFFICE ESSENTIALS, INC.,
Defendants.

MEMORANDUM

OPINION

Plaintiffs Andrew P. Levin, James Hard, Melissa Edwards, Daniel J. Chamberlin, and
Angela Dunham have filed this action against ImpactOffice LLC and its subsidiary, Office
Essentials, Inc. (collectively,

"Impact"),

seeking a declaratory judgment

that the restrictive

covenants in any employment agreements they have with Impact are unenforceable.

In Count III

of the First Amended Complaint, Edwards also alleges a violation of the Stored Communications
Act ("SCA"), 18 U .S.C.

S 2701

(2012). Pending before the Court is Impact's Motion to Dismiss

Count III pursuant to Federal Rule of Civil Procedure 12(b)( 6). For the reasons set forth below,
the Motion is denied.
BACKGROUND
Impact is a supplier of office products and services, including office supplies, furniture,
printing services, and related goods and services.

Edwards was employed as a marketing

representative for an affiliate of Impact, George W. Allen, LLC, between 2012 and 2016. She
resigned on May 6,2016 in order to accept ajob with W.B. Mason, a competitor ofImpact.
While Edwards was employed by Impact, she purchased a personal cell phone through
Impact, paying the entire cost of the phone through deductions from her paychecks.
resigned, Edwards received a letter from Impact's

After she

counsel stating that her cell phone was

Impact's property and demanding its return. Edwards deleted all emails that she had stored on
the cell phone, including all emails that she had received on the cell phone from her personal
Google Gmail email account, and returned the cell phone to Impact on May 23, 2016.

After

Impact received the cell phone, an unidentified Impact agent used the cell phone to access
personal emails in Edwards' Gmail account, which were stored on Google's servers, on at least
40 occasions. Using the cell phone, the Impact agent arranged to forward Edwards' emails from
Google's servers to Impact's counsel, including emails "that were sent and received by Ms.
Edwards after she had resigned from Impact and emails exchanged between Ms. Edwards and
her counsel,

which were clearly marked"

communications

and work product.

as privileged

and confidential

Am. CompI. ~ 93, ECF NO.3.

attorney-client

Impact also used the cell

phone to delete the emails on Google's servers that would reveal the forwarding of Edwards'
emails to Impact.
On May 26,2016, Impact filed a lawsuit in the Circuit Court for Prince George's County,
Maryland against Edwards and Hard, which was then removed to this Court, alleging that the
former employees

breached

the non-competition

and non-solicitation

provisions

of their

employment agreements with Impact. See ImpactOfjice LLC et ai. v. Hard, et al., No. DKC-161675 (D. Md.).

Impact voluntarily dismissed the case on August 2.

The following day,

Edwards, Hard, Chamberlin, and Dunham filed a lawsuit against Impact seeking a declaratory

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judgment on the same issues. See Hard et al. v. ImpactOfjice LLC et al., No. TDC-16-2751 (D.
Md. Aug. 3, 2016), ECF No.1.

Levin filed this lawsuit on August 8, seeking a declaratory

judgment and alleging fraud in the inducement. On August 10, Edwards, Hard, Chamberlin, and
Dunham voluntarily dismissed their suit and joined this litigation, filing the First Amended
Complaint.
Count III of the First Amended Complaint alleges that Impact intentionally accessed
Edwards'
U.S.C.

emails without authorization, in violation of the Stored Communications

S 2701.

Act, 18

According to Edwards, at the time of the alleged unauthorized access, the emails

were "stored on a facility through which electronic communication service is provided," within
the meaning of the SCA. Am. Compl. ~ 98. Edwards alleges that as a result of this activity, she
is entitled to monetary damages and preliminary, equitable, and declaratory relief. Impact filed a
partial Answer and the pending Motion to Dismiss Count III.
DISCUSSION
Impact seeks dismissal of Count III pursuant to Federal Rule of Civil Procedure 12(b)(6).
It argues that Edwards has failed to state a plausible claim for relief under the SCA because she
does not sufficiently allege that the emails were in electronic storage as defined by the SCA.
Specifically, Impact contends that Edwards must allege that her emails had not been opened at
the time of Impact's alleged access in order to state a claim under the SCA.

I.

Legal Standard
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the
reasonable

inference that the defendant is liable for the misconduct alleged."

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Id.

Legal

conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
(1994); Lambeth v. Bd. ofComm'rs
II.

Albright v. Oliver, 510 U.S. 266, 268

of Davidson Cty., 407 F.3d 266,268 (4th Cir. 2005).

SeA
Edwards alleges that Impact is subject to civil liability under the SCA for accessing her

personal emails without authorization.

See 18 U.S.C. S 2707(a) (providing for a private, civil

cause of action for knowing or intentional violations of the SCA). The SCA is violated when a
person "intentionally

accesses without authorization

a facility through which an electronic

communication service is provided" and "thereby obtains, alters, or prevents authorized access to
a wire or electronic communication

S 2701(a).

while it is in electronic storage in such system(.]"

Id.

"Electronic storage" is defined as: "(A) any temporary, intermediate storage ofa wire

or electronic communication

incidental to the electronic transmission

thereof; and (B) any

storage of such communication by an electronic communication service for purposes of backup
protection of such communication(.]"

Id. ~ 2510(17); see also id. ~ 2711(1) (incorporating the

definitions in 18 U.S.C. ~ 2510 for purposes of the SCA).
Impact argues that Edwards has not sufficiently

alleged that the emails were in

"electronic storage" as defined by the SCA because she did not allege that the emails were
unopened at the time that Impact accessed them. Impact contends that opened emails cannot be
in "electronic storage" under either definition of electronic storage. Edwards argues that she is
not required to allege that the emails were unopened in order to state a claim under the SCA and,
in the alternative, requests leave to amend her claim to set forth additional allegations.

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Upon

consideration of both definitions of "electronic storage," the Court concludes that Edwards did
not need specifically to allege that the emails were unopened in order to state an SCA claim.
A.

"Temporary, Intermediate Storage"

Impact initially argues that emails that have already been opened cannot be in "electronic
storage" pursuant to the first definition of that term, "any temporary, intermediate storage of a
wire or electronic communication incidental to the electronic transmission thereof." 18 U.S.C.
~ 251 0(17)(A).

This definition is generally understood to cover email messages that are stored

on a server before they have been delivered to, or retrieved by, the recipient.

See, e.g., United

States v. Councilman, 418 F.3d 67, 81 (1st Cir. 2005) (en banc) ("The first category ... refers to
temporary storage, such as when a message sits in an e-mail user's mailbox after transmission
but before the user has retrieved the message from the mail server."); Theofel v. Farey-Jones,
359 F.3d 1066, 1075 (9th Cir. 2004) (collecting cases holding that emails are in "temporary,
intermediate storage" when they are stored on an internet service provider's server and are "not
yet delivered" to the recipient); Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir.
2003) (finding that an email which had been successfully

sent and received was not in

temporary, intermediate storage). In another context, the United States Court of Appeals for the
Fourth Circuit has indicated, without formally holding, that delivery of an email, and thus
removal from temporary storage, occurs when the recipient opens the email. See United States v.
Cioni, 649 F.3d 276, 286 (4th Cir. 2011) (noting in dicta in a criminal case that "access to
unopened e-mails is a requirement for proving a violation of 18 U.S.C. ~ 2701(a)"); see also
Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft
Corp., 829 F.3d 197,227 n.4 (2d Cir. 2016) (Lynch, J., concurring) ("(T]he majority view is that,
once the user of an entirely web-based email service (such as Microsoft's) opens an email he has

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received,
service.").

that email is no longer 'in electronic storage'

on an electronic communication

With this guidance, several district courts have concluded that opened emails are no

longer in "temporary, intermediate storage." See, e.g., Murphy v. Spring, 58 F. Supp. 3d 1241,
1270 (N.D. Okla. 2014); Lazette v. Kulmatycki, 949 F. Supp. 2d 748, 758 (N.D. Ohio 2013);
United States v. Weaver, 636 F. Supp. 2d 769, 771 (C.D. Ill. 2009). But see Hoofnagle v. SmythWythe Airport Comm 'n, No. 1:15CV00008, 2016 WL 3014702, at *10 (W.D. Va. May 24, 2016)
("[F]or the purposes of establishing a claim under the SCA, I do not think it makes any
difference whether an email stored on an internet service provider's server has been opened or
not.").
Although Edwards claims that "electronic storage" should cover "all stored electronic
communications regardless of whether the communications were opened or unopened at the time
a defendant accessed them," Opp'n at 6, ECF No. 13, the Court cannot accept that view because
the term "temporary, intermediate storage" necessarily places some limit on the range of emails
covered.

The Court therefore

intermediate" storage status under

follows the weight of authority that deems "temporary,

S 251O(l7)(A)

to end when the emails have been delivered

and opened by the recipient. To extend it any further would run afoul ofthe plain meaning of the
terms "temporary" and "intermediate."
It does not follow, however, that a plaintiff must specifically allege that the emails at
issue were unopened at the time of the unauthorized access in order to state a claim under the
SCA.

As Edwards argues, this is a fact-intensive question.

Although Impact asserts that the

emails it allegedly accessed had been previously opened or accessed by Edwards, there is no
evidence before the Court to support that contention.

Edwards alleged that Impact accessed her

email without authorization shortly after her resignation, including emails that had been "sent

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and received" after she resigned.

The First Amended Complaint does not specifically state

whether any of those emails had previously been opened, and there is no basis upon which to
presume that Edwards must have already opened all of the accessed emails prior to Impact's
intrusion.

Viewing the allegations in the light most favorable to Edwards, as is required on a

motion to dismiss, the Court can reasonably infer that at least some of the emails were unopened
at the time of the alleged access and were therefore in temporary, intermediate storage as defined
by the SCA. See, e.g., Pascal Pour Elle, Ltd. v. Jin, 75 F. Supp. 3d 782, 788-89 (N.D. Ill. 2014)
(collecting cases and noting that "somewhat vague allegations regarding electronic storage" have
generally been held to be sufficient on a motion to dismiss an SCA claim); Rene v. G.P. Fishers,
Inc., 817 F. Supp. 2d 1090, 1097 (S.D. Ind. 2011) ("[Plaintiff s] complaint does not state
whether the email messages accessed by the Defendants had already been opened by her, but
[plaintiff] is not required to allege such details at this stage. By alleging that the Defendants
made unauthorized access to her email, [plaintiff] has satisfied her burden of asserting a violation
of the SCA.").

Edwards was not required specifically to state in the complaint that Impact

accessed the email communications before they were opened in order to allege that the accessed
communications were in "electronic storage," as necessary to state a claim under the SCA.

B.

"Storage ... for Purposes of Backup Protection"

Even if it were necessary to assert in the complaint that all of the accessed emails were
unopened in order to allege "electronic storage" under

S 2510(l7)(A),

the Court concludes that

Edwards nevertheless has properly alleged that the emails were in "electronic storage" under the
second definition, in that they were in "storage . . . for purposes of backup protection of such
communication[.]"

18 U.S.C.

S 2510(l7)(B).

Although the Fourth Circuit has not interpreted

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this provision, the United States Court of Appeals for the Ninth Circuit has described the type of '
emails deemed to be stored for purposes of backup protection:
An obvious purpose for storing a message on an [Internet service provider]'s
server after delivery is to provide a second copy of the message in the event that
the user needs to download it again-if, for example, the message is accidentally
erased from the user's own computer. The ISP copy of the message functions as a
"backup" for the user. Notably, nothing in the Act requires that the backup
protection be for the benefit of the ISP rather than the user. Storage under these
circumstances thus literally falls within the statutory definition.
Theofel, 359 F.3d at 1075. In Theofel, the court held that certain emails "remaining" on the
server of an internet service provider ("ISP") "after delivery" were "in electronic storage" for
purposes of backup protection within the meaning of ~ 2510(l7)(B).

Id. In so ruling, the court

drew a distinction between an email system under which an email is downloaded to an electronic
device, such that the retained copy on the ISP's server can be deemed to be a "backup" copy, and
an email system under which an ISP's server is "the only place a user stores his messages," in
which case the emails would not have been "stored for backup purposes."

Id.atl076-77

(stating

that "the mere fact that a copy could serve as a backup does not mean it is stored for that
purpose").

Thus, whether an email on an ISP's server is in "electronic

storage" under

~ 251 0(l7)(B) may depend on whether the email acts as a backup to an identical version on a
user's own electronic device.
Although applying the definitions of "electronic storage" is a difficult endeavor because
the technology relating to emails and other electronic communications has changed since the
enactment of the SCA and the issuance of many of the judicial opinions interpreting the law,
Edwards' allegations, viewed in the light most favorable to her, support the inference that the
emails improperly accessed from the Google server were stored for "backup protection."
U.S.C. ~ 2510(l7)(B).

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Edwards alleged that she physically deleted emails from her Gmail

8

account from her cell phone before surrendering it to Impact, thus indicating that actual copies of
her email messages were typically downloaded to her cell phone. The versions contained on the
Gmail server therefore could fairly be described as retained to "provide a second copy of the
message in the event that the user needs to download it again."

Theofel, 359 F.3d at 1075.

Accordingly, within the terminology of the SCA, Edwards' Gmail emails could be deemed to be
stored on the server "for purposes of backup protection."
As with

S 2510(17)(A),

"electronic storage" under

S

18 U.S.C.

S 251 0(17)(B).

Impact argues that only unopened emails can be deemed to be in

2510(17)(B).

But there is nothing in that provision that requires

emails to be unopened in order to qualify as in storage "for purposes of backup protection."

In

finding that "prior access is irrelevant to whether the messages at issue were in electronic
storage," the Theofel court noted that "[i]n contrast to subsection (A), subsection (B) does not
distinguish between intermediate and post-transmission

storage."

359 F.3d at 1075, 1077.

Rather, "[b]y its plain terms, subsection (B) applies to backup storage regardless of whether it is
intermediate or post-transmission."

Id at 1076. To conclude that only unopened emails could

be deemed to be stored for backup purposes would render

S 251 0(17)(B)

"superfluous," because

such "temporary, intermediate" emails would already be deemed to be in "electronic storage"
under

S 2510(17)(A).

Id at 1075-76.

The Court finds the reasoning of Theofel persuasive.
circuits have not adopted the opposite conclusion.

Contrary to Impact's claim, other

Without deciding the issue explicitly, the

United States Court of Appeals for the Third Circuit has cast doubt on the position that delivered,
opened emails could not be deemed to be stored for backup protection. Fraser, 352 F.3d at 114
(concluding that the district court's holding that "post-transmission"

emails were not in backup

storage under the SCA was "questionable" and "assuming without deciding that the e-mail in

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question was in backup storage").

Although the United States Court of Appeals for the Eighth

Circuit criticized Theofel in Anzaldua v. Northeast Ambulance & Fire Protection District, 793
F.3d 822 (8th Cir. 2015), that court explicitly concluded that it "need not decide" whether
Theofel was correct because the email in question, which was saved on the server as a "sent"
email in the sender's email account, could not be deemed to be saved for purposes of backing up
a copy received and downloaded by the recipient. ld at 840-42.
Notably, several district courts have concluded that, where a user downloads emails from
a web-based email service to an electronic device, opened emails retained on the ISP's server
may still be in "electronic storage" under
purposes of backup protection."

S 251 0(l7)(B)

because they are in "storage ...

See, e.g., Cheng v. Romo, No. 11-10007-DJC,

for

2013 WL

6814691, at *4 (D. Mass. Dec. 20, 2013) (noting that "[t]he web based access mechanism is
simply the modem day equivalent of how email was accessed in 1986, when the SCA was
passed"); Strategic Wealth Grp., LLC v. Canno, No. 10-0321,2011

WL 346592, at *4 (E.D. Pa.

Feb. 4, 2011); Bailey v. Bailey, No. 07-11672, 2008 WL 324156, at *6 (E.D. Mich. Feb. 6,
2008).

Other cases in which the court found that opened emails were not stored for "backup

protection" under

S

2510(l7)(B)

are readily distinguishable because they involved web-based

email systems in which no copy of the email is downloaded to the user's electronic device, such
that there is no second copy to which the email on the server could be a "backup."

See, e.g.,

Weaver, 636 F. Supp. 2d at 772 (distinguishing Theofel on the basis that users of the Hotmail
service at issue generally "default to saving their messages only on the remote system");
Jennings v. Jennings, 736 S.E.2d 242, 245 (S.C. 2012) (holding that where the email user "left
the single copies of his e-mails on the Yahoo! server and apparently did not download them or
save another copy of them in any other location," retaining an opened email did not constitute

10

"storing it for backup protection under the Act"); see also Anzaldua,
(discussing cases distinguishing

793 F.3d at 841-42

Theofel on the basis that the email service at issue did not

involve saving a copy of the message to the user's electronic device); ef Theofel, 359 F.3d at
1077 ("A remote computing service might be the only place a user stores his messages; in that
case, the messages are not stored for backup purposes.").
Accordingly, the Court concludes that it was not necessary for Edwards to allege that the
emails were unopened in order to state a claim under the SCA. Where Edwards' assertions in the
First Amended Complaint suggest that Edwards stored copies of the emails from her personal
Gmail account on her cell phone while also maintaining copies on Google's servers, she has
adequately alleged that the emails were in "electronic storage" because they were stored for
backup purposes, regardless of whether they were unopened.

See 18 U.S.C. ~ 251O(17)(B).

Whether her email system was such that she, in fact, downloaded such copies is a factual
question that need not be resolved at this time.
In order to prevail on her claim, Edwards will be required to prove that the allegedly
accessed emails were either unopened and in temporary storage under ~ 2510(17)(A) or were
stored for the purposes of backup protection under ~ 251 0(17)(B).

At the motion to dismiss

stage, however, her allegations are sufficient to state a plausible claim under the SCA and to put
Impact on notice of the nature of that claim. The Motion to Dismiss is therefore denied.

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CONCLUSION
For the foregoing reasons, the Motion to Dismiss is DENIED.

A separate Order shall

issue.

Date: July 10,2017

~r~

THE~A-~
United States District Judge

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