Demo v. Kirksey et al

Filing 35

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 11/15/2018. (km4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DEMO,

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Plaintiff
v.

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KIRKSEY, et al.,
Defendants

Civil Action No. 8:18-cv-00716-PX

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MEMORANDUM OPINION

Plaintiff Luke Demo brings suit against Defendants for allegedly placing Global
Positioning System (“GPS”) tracking devices on Plaintiff’s vehicle and in the diaper bag used for
Demo and Defendant Katherine Kirksey’s child in common. Now pending before the Court are
Defendants’ Motions to Dismiss (ECF Nos. 5, 25, 27, 29) and Defendants Donna Rismiller and
Rismiller Law Group, LLC (collectively, the “Rismiller Defendants”)’s Motion for Leave to File
a Reply. ECF No. 34. The motions are fully briefed and no hearing is necessary. See Loc. R.
105.6. For the reasons that follow, the Court grants in part and denies in part Defendants’
Motions to Dismiss and denies the Rismiller Defendants’ Motion for Leave to File a Reply.
I.

Background

Demo and Kirksey are involved in protracted state litigation over the custody and
visitation of their minor child. ECF No. 20 ¶ 6. Included in the custody battle are three related
domestic violence cases. ECF No. 5-4 at 2, 8. Shortly after the litigation began, Kirksey hired
Jared Stern and Stern Strategies International, LLC, (collectively, the “Stern Defendants”) to
surveil Demo. ECF No. 20 ¶¶ 7, 15. The Rismiller Defendants, who represent Kirksey in the
custody suit, “recommended” the ongoing surveillance of Demo. Id. ¶ 10.
The Stern Defendants placed a GPS tracking device onto Demo’s car and provided

monitoring software to Kirksey, which allowed her to track Demo’s vehicle. Id. ¶ 8. Kirksey
monitored the location of Demo’s vehicle from approximately January 2017 through July 2017.
Id. ¶ 12. Kirksey was able to track Demo’s vehicle as he traveled between his home in
Pennsylvania and Maryland, where he would pick up the child for permitted visitation. Id. ¶ 11.
Defendants also placed a GPS tracking device in the diaper bag that traveled with the child (who
was young enough to need a diaper bag). When the child was with Demo, which occurred at
regular intervals consistent with the parents’ custody arrangement, Demo’s every move, while he
had possession of the diaper bag, was shared with Kirksey. Id. ¶ 9. The tracking software for
both the diaper bag and vehicle allowed monitoring 24 hours a day, seven days a week for six
continuous months.
In July 2017, Demo discovered the device in the diaper bag and advised Kirksey to stop
surveilling him. Id. ¶ 12. On March 9, 2018, Demo filed this action, alleging invasion of a
protected privacy interest by intrusion upon seclusion, harassment under the Maryland criminal
code, and a violation of the Pennsylvania Wiretap Act. ECF No. 1.
II.

Standard of Review

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the well-pleaded allegations are accepted as true and viewed most favorably to
the party pursuing the allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Factual allegations must be enough to raise a right to relief above a speculative level.” Id.
“‘[N]aked assertions’ of wrongdoing necessitate some ‘factual enhancement’ within the
complaint to cross ‘the line between possibility and plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
“[C]onclusory statements or ‘a formulaic recitation of the elements of a cause of action will not

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[suffice].’” EEOC v. Performance Food Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014)
(quoting Twombly, 550 U.S. at 555).
When a motion to dismiss is styled in the alternative as a motion for summary judgment,
the court may exercise its discretion under Rule 12(d) of the Federal Rules of Civil Procedure to
convert the Rule 12(b)(6) motion to one brought pursuant to Rule 56. See Bosiger v. U.S.
Airways, 510 F.3d 442, 450 (4th Cir. 2007); Kensington Vol. Fire Dept., Inc. v. Montgomery
Cty., 788 F. Supp. 2d 431, 436–37 (D. Md. 2011). In this case, the Court declines to consider the
Rismiller Defendants’ motion (ECF No. 5) as one for summary judgment and instead will treat it
as a motion to dismiss under Rule 12(b)(6).
III.

Analysis
A. Motions to Dismiss

As a preliminary matter, the Court must determine which of Defendants’ four motions to
dismiss are properly before the Court. ECF Nos. 5, 25, 27, 29. Plaintiff argues that the Rismiller
Defendants’ first Motion to Dismiss (ECF No. 5) was mooted by Plaintiff’s Amended
Complaint. ECF No. 30-1 at 3. Generally, an amended complaint moots a motion to dismiss the
original complaint. Johnson v. Asset Acceptance, LLC, No. GLR-15-538, 2015 WL 8760737, at
*1 (D. Md. Dec. 15, 2015). However, where the amended complaint does not resolve the
deficiencies alleged in the motion to dismiss, “the Court may consider the motion as addressing
the second amended complaint.” Id. Here, the Amended Complaint primarily modifies only one
paragraph. ECF No. 20-1 ¶ 10. The vast majority of the Rismiller Defendants’ arguments are
unaffected by the amendments. The Motion to Dismiss (ECF No. 5), therefore, is not moot.
Plaintiff also argues that the Rismiller Defendants’ second Motion to Dismiss (ECF
No. 29) is untimely, as it was filed two days after the deadline established by Federal Rule of

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Civil Procedure 15(a)(3). The Court agrees. A motion to dismiss an amended complaint must be
made “within the time remaining to respond to the original pleading or within 14 days after
service of the amended pleading.” Fed. R. Civ. P. 15(a)(3). The court may extend the time to
respond “on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Here, the Rismiller Defendants moved to adopt
the other Defendants’ Motions to Dismiss (ECF Nos. 25, 27) sixteen days after service of the
amended pleading. But the Rismiller Defendants did not move to file after the deadline passed
and did not give any reason for the untimely filing. The Court cannot extend the deadline. See
Hanlin-Cooney v. Frederick Cty., Md., No. WDQ-13-1731, 2014 WL 576373, at *10 n.31 (D.
Md. Feb. 11, 2014). That said, the Court notes that the issues presented in the Rismiller
Defendants’ second Motion to Dismiss have been fully covered by other motions (ECF Nos. 5,
25, 27); accordingly, striking the untimely pleading visits no prejudice on the Rismiller
Defendants. ECF No. 29. 1
The Court now turns to the sufficiency of the claims for intrusion upon seclusion,
harassment, and violation of the Pennsylvania Wiretap Act.
i.

Intrusion Upon Seclusion (Count I)

Plaintiff alleges that Defendants unreasonably intruded upon his seclusion by tracking his
location through the use of GPS devices. None of the parties have clearly determined which law
governs this tort. When a federal court sits in diversity, as it does here, the court “must apply the
conflict of laws rules of the forum state—here, Maryland.” Sokolowski v. Flanzer, 769 F.2d 975,
977 (4th Cir. 1985). Maryland applies the doctrine of lex loci delicti, such that when “the events
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Likewise, the Court denies the Rismiller Defendants’ Motion for Leave to File a Reply. ECF No. 34.
The reply was due fourteen days after service of Demo’s consolidated response to the motions to dismiss. See Loc.
R. 105.2.a. The Rismiller Defendants filed their response eleven days late and did not provide any reasons for the
delay. ECF Nos. 33, 34. Thus, the Court cannot extend the deadline and so strikes the Rismiller Defendants’ reply.
ECF No. 33.

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giving rise to a tort action occur in more than one State,” the court must apply the law of the state
where “the last event required to constitute the tort occurred.” Erie Ins. Exch. v. Heffernan, 399
Md. 598, 620 (2007). Because Plaintiff alleges that the surveillance occurred in both
Pennsylvania and Maryland, it is unclear at this stage which state’s law governs. See ECF No.
20 ¶ 11.
However, Maryland and Pennsylvania have adopted the same definition for intrusion
upon seclusion. Intrusion upon seclusion is one of the torts under invasion of privacy.
Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 161 (1986); Harris ex rel. Harris v.
Easton Pub. Co., 335 Pa. Super. 141, 152 (1984). An intrusion upon seclusion occurs where
there is an “intentional intrusion upon the solitude or seclusion of another or his private affairs or
concerns that would be highly offensive to a reasonable person.” Furman v. Sheppard, 130 Md.
App. 67, 73 (2000) (citing Restatement (Second) of Torts § 652B (Am. Law. Inst. 1977)); see
also Harris, 335 Pa. Super. at 153 (quoting Restatement (Second) of Torts § 652B). Generally,
if reasonable surveillance captures only what can be seen by the general public, no intrusion
upon seclusion has occurred. Furman, 130 Md. App. at 73; Tagouma v. Investigative Consultant
Servs., Inc., 2010 Pa. Super. 147, 176–77 (2010). But if the conduct “amounts to a persistent
course of hounding, harassment and unreasonable surveillance, even if conducted in a public or
semi-public place,” it may rise to the level of an intrusion upon seclusion. Wolfson v. Lewis, 924
F. Supp. 1413, 1420 (E.D. Pa. 1996).
To find that conduct is an unwarranted invasion of a plaintiff’s privacy, both Maryland
and Pennsylvania Courts engraft into the common law definition of “privacy” the “reasonable
expectation of privacy” standard animating the Fourth Amendment to the Constitution of the
United States. See Furman, 130 Md. App. at 73 (“[A] trespass becomes relevant only when it

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invades a defendant’s reasonable expectation of privacy.”) (quoting McMillian v. State, 85 Md.
App. 367, 394 (1991), vacated on other grounds, 325 Md. 272 (1992)); Tagouma, 2010 Pa.
Super at 176; see also Restatement (Second) of Torts § 652B cmt. c; Whye v. Concentra Health
Servs., Inc., No. ELH-12-3432, 2013 WL 5375167, at *19 (D. Md. Sept. 24, 2013) (cautioning
against wholesale application of Fourth Amendment search and seizure jurisprudence to an
intrusion upon seclusion claim concerning employer’s breath alcohol tests of employees, but
recognizing such jurisprudence as “helpful” to define individual privacy interest). That is, courts
consider whether the privacy alleged to have been invaded is one protected from similar,
governmental intrusion under the Fourth Amendment.
However, neither Maryland or Pennsylvania have reached the precise question here:
whether GPS tracking of the kind and duration averred in this case amounts to an invasion of a
plaintiff’s reasonable expectation of privacy. Other courts have refused to allow the claim to
proceed based on a defendant’s GPS tracking of a plaintiff’s vehicle, reasoning that a plaintiff
does not enjoy a reasonable expectation of privacy in travel on public streets. Moran v. Lewis,
2018 Ohio 4423 (Oh. Ct. App. 2018) (“The mere act of monitoring another’s public movements
through the attachment of a GPS tracking device is not, in and of itself, sufficient to state an
invasion of privacy claim”); HSG, LLC v. Edge-Works Mfg. Co., No. 15 CVS 309, 2015 WL
5824453, at *8 (N.C. Super. Oct. 5, 2015); Troeckler v. Zeiser, No. 14-CV-40-SMY-PMF, 2015
WL 1042187, at *3 (S.D. Ill. Mar. 5, 2015); Villanova v. Innovative Investigations, Inc., 420 N.J.
Super. 353, 362 (App. Div. 2011); Elgin, 2005 WL 3050633, at *4. But see McBride v. Shipley,
No. CIV-18-205-R, 2018 WL 4101524, at *1 (W.D. Okla. Aug. 28, 2018) (allowing intrusion
upon seclusion claim to proceed, without analysis, noting that “it is plausible that Defendants
tracked their movements on private property”). For the following reasons, this Court takes the

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road less traveled.
Most significantly, the constitutional landscape has changed with respect to an
individual’s reasonable expectation of privacy in electronic data that captures the individual’s
constant movement in public spaces for an extended period of time. Until recently, it was settled
that “[a] person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another.” United States v. Knotts,
460 U.S. 276, 281 (1983). In Knotts, the Supreme Court of the United States held that a
defendant maintained no expectation of privacy in the signals emitted from the governmentinstalled beeper housed in a container and transported in a car driven on public roads by the
defendant. Indeed, several courts have relied in whole or in part on Knotts to reason similarly
that a plaintiff enjoys no reasonable expectation of privacy in signals emitted from a GPS device
attached to a vehicle traveling on public thoroughfares. HSG, 2015 WL 5824453, at *9 (noting
that Jones v. United States, 565 U.S. 400 (2012), did not overrule Knotts); Villanova, 420 N.J.
Super. at 364; Elgin, 2005 WL 3050633, at *3. This is so even though the government
surveillance in Knotts involved a single, discrete “automotive journey,” and expressly left open
whether “different constitutional principles may apply be applicable” if “twenty-four hour
surveillance of any citizen of this country [were] possible.” Id. at 283–85.
In 2012, the Supreme Court in Jones v. United States revisited the question prophesied in
Knotts as to the different constitutional principles animating claims on 24 hour surveillance. In
Jones, the Court determined that installing a GPS device on a criminal defendant’s Jeep to track
his movements for almost four weeks constituted a search. 565 U.S. at 404. Although the
majority opinion reasoned that law enforcement’s trespass onto Jones’ private property 2 to

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While the vehicle was owned by Jones’ wife, the Government did not challenge Jones’ standing to object
under the Fourth Amendment. Id. at 404 n.2.

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install the GPS constituted an unreasonable search, id. at 404–05, a majority of concurring
Justices instead recognized that a Fourth Amendment violation could occur because “individuals
have a reasonable expectation of privacy in the whole of their physical movements.” Carpenter
v. United States, 138 S. Ct. 2206, 2217 (2018) (citing Jones, 565 U.S. at 430 (Alito, J.,
concurring in judgment) and Jones, 565 U.S. at 415 (Sotomayor, J., concurring)). Justice Alito,
joined by Justices Ginsburg, Breyer, and Kagan, disagreed with Justice Scalia’s trespass-based
analysis and determined instead that the issue should be decided under the analysis invoked in
Katz v. United States, 389 U.S. 347, 353 (1967), and its progeny, which collectively rejected that
a trespass was necessary for a Fourth Amendment violation. Jones, 565 U.S. at 419 (Alito, J.,
concurring in judgment). The crucial inquiry for the concurring four Justices remained whether
the government intrusion invaded an individual’s reasonable expectation of privacy regardless of
whether such intrusion included physical trespass. Against this constitutional backdrop, the
Alito concurrence agreed that warrantless GPS tracking of this nature and duration was a search
because it “impinges on expectations of privacy,” id. at 430, and noted that “the majority is hard
pressed to find support in post-Katz cases for a trespass-based theory.” Id. at 424.
Importantly, with respect to Knotts, the Alito concurrence distinguished between the
brief, constitutionally permissible surveillance accomplished in Knotts and the unconstitutional
amassing of persistent GPS monitoring at issue in Jones:
[The] relatively short-term monitoring of a person’s movements on
public streets accords with expectations of privacy that our society
has recognized as reasonable. See Knotts, 460 U.S., at 281–282,
103 S.Ct. 1081. But the use of longer term GPS monitoring in
investigations of most offenses impinges on expectations of
privacy. For such offenses, society’s expectation has been that law
enforcement agents and others would not—and indeed, in the
main, simply could not—secretly monitor and catalogue every
single movement of an individual's car for a very long period. In
this case, for four weeks, law enforcement agents tracked every
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movement that respondent made in the vehicle he was driving. We
need not identify with precision the point at which the tracking of
this vehicle became a search, for the line was surely crossed before
the 4–week mark. Other cases may present more difficult
questions. But where uncertainty exists with respect to whether a
certain period of GPS surveillance is long enough to constitute a
Fourth Amendment search, the police may always seek a warrant.
Id. at 430.
Justice Sotomayor, writing separately, similarly emphasized that “I would take these
attributes of GPS monitoring into account when considering the existence of a reasonable
societal expectation of privacy in the sum of one’s public movements. I would ask whether
people reasonably expect that their movements will be recorded and aggregated in a manner that
enables the Government to ascertain, more or less at will, their political and religious beliefs,
sexual habits and so on.” Id. at 416. In a rapidly changing technological world, the Justice
noted, “it may be necessary to reconsider the premise that an individual has no reasonable
expectation of privacy in information voluntarily disclosed to third parties. . . . I would not
assume that all information voluntarily disclosed to some member of the public for a limited
purpose is, for that reason alone, disentitled to Fourth Amendment protection.” Id. at 417–18.
Taken together, a fair reading of the concurring opinions in Jones expands the zone of an
individual’s reasonable expectation of privacy to include continuous and systematic tracking of
that individual’s every movement through GPS technology in a strikingly similar manner to that
which Demo experienced here. Viewing the Complaint allegations as true, this Court finds no
meaningful distinction between the violation of Jones’ reasonable expectation of privacy and of
Demo’s in this particular action. If anything, the combined GPS tracking for six continuous
months of Demo’s vehicle, and the diaper bag when he had custody of his infant child, is
arguably greater in duration and scope than that of the vehicle in Jones. Thus, following Jones,

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the Court finds that the Complaint has pleaded sufficient facts to infer plausibly that he enjoyed a
reasonable expectation of privacy in the sum of his every movement over the course of six
months. On this basis alone, the claim survives dismissal.
Since Jones, however, the Supreme Court has plainly reaffirmed an individual’s
reasonable expectation of privacy in the continuous gathering of geolocation data. In Carpenter
v. United States, the Court was asked to determine whether the Government may obtain stored
cell site location data of an individual’s cell phone without first obtaining a search warrant. 138
S. Ct. at 2211. There, the Government had gathered, via subpoena to a third-party cell service
provider, the geo-location data for the Defendant’s cell phone. Id. at 2212. This geo-location
data provided the actual physical location of the cell site towers to which the Defendant’s cell
phone would connect whenever the phone made or received a call. Id. The information obtained
by subpoena, therefore, constituted 127 days of geo-location data for each of the cell sites to
which the defendant’s phone had made connection. Id. More simply put, the information
tracked the defendant’s continuous movement by way of his cell phone for just over three
months.
The Supreme Court held that because an individual maintains a reasonable expectation of
privacy “in the whole of his physical movements,” the government must first obtain a search
warrant for such data. Id. at 2219. Admittedly, the Court recognized that cell site data exacts a
greater invasion of privacy than GPS by revealing continuously an individual’s location in public
as well as non-public spaces. Id. at 2218. Relevant to this analysis, however, is Carpenter’s
reaffirmation of that which was first announced in the Jones concurrences: “what [one] seeks to
preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Id. at 2217 (quoting Katz, 389 U.S. at 351–52) (internal quotation marks omitted). This is

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because
a cell phone’s location over the course of 127 days provides an allencompassing record of the holder’s whereabouts. As with GPS
information, the time stamped data provides an intimate window
into a person’s life, revealing not only his particular movements,
but through them his ‘familial, political, professional, religious,
and sexual associations.’
Carpenter, 138 S. Ct. at 2217 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)).
Carpenter, therefore, established that an individual maintains an expectation of privacy in
location data, whether via GPS on a vehicle traveling through public roads, see Jones, 565 U.S.
at 415, or location data from cell site towers connecting to the cell phone in one’s pocket. See
Carpenter, 138 S. Ct. at 2219. 3
In light of Jones and Carpenter, and when viewing the Complaint allegations most
favorably to Plaintiff, the claim of intrusion upon seclusion survives challenge. Six months of
continuous surveillance accomplished through tracking Demo’s vehicle and a diaper bag, which
had to accompany the parent of a child small enough to need a diaper bag, sufficiently
establishes that Defendants intentionally intruded upon Demo’s privacy. This is especially so
when considering that intrusion upon seclusion is a heavily fact-dependent claim, requiring the
trier of fact to consider “all the circumstances including ‘the degree of the intrusion, the context,
conduct and circumstances surrounding the intrusion as well as the intruder’s motives and
objectives, the setting into which he intrudes, and the expectations of those whose privacy is
invaded.’” Wolfson, 924 F. Supp. at 1421 (quoting Hill v. Nat’l Collegiate Athletic Assoc., 26
Cal. Rptr. 2d 834, 850 (1994)). Although discovery may unearth facts which ultimately preclude

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The Carpenter Court also emphasized that Jones had reached “more sophisticated surveillance” than that
at issue Knotts, namely GPS that tracks “‘every movement’ a person makes”; accordingly, the five concurring
Justices in Jones had concluded that GPS monitoring “‘impinges on expectations of privacy’—regardless of whether
those movements were disclosed to the public at large.” Carpenter, 138 S. Ct. at 2215 (quoting Jones, 565 U.S. at
430 (Alito, J., concurring in judgment); Jones, 565 U.S. at 415 (Sotomayor, J., concurring)).

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the claim from reaching trial, at this stage the Court is unwilling to dismiss such a fact-intensive
cause of action where a plausible theory of liability is pleaded. Defendants’ motions to dismiss
Count I is denied.
ii.

Harassment (Count II)

Defendants next argue that Plaintiff fails to state a claim upon which relief can be granted
under the Maryland criminal statute prohibiting harassment. Md. Code, Crim. Law § 3-803. To
determine whether a criminal statute can give rise to a private cause of action, courts primarily
focus on whether the legislature intended to provide the right to bring suit. Baker v. Montgomery
Cty., 201 Md. App. 642, 670 (2011). “[W]here a statute expressly provides a particular remedy
or remedies, a court must be chary of reading others into it.” Fangman v. Genuine Title, LLC,
447 Md. 681, 716 (2016) (quoting Baker v. Montgomery Cty., 427 Md. 691, 713 (2012)).
“Plaintiff concedes that, standing alone, and considering the explicit language of the
statute and its legislative history from its enactment in 1986, the statute does not provide for a
cause of action, and appears solely to be a penal statute.” ECF No. 30-1 at 14. In an attempt to
save the claim, Plaintiff looks instead to the peace order statute and argues that this statute
provides a private right of action to sue for harassment. Id. Because grounds for obtaining a
peace order in Maryland include “[h]arassment under § 3-803 of the Criminal Law Article,” goes
the argument, the Maryland legislature contemplated a civil action for harassment. See Md.
Code, Cts. & Jud. Proc. § 3-1503(a)(vi). The peace order statute works no such expansion.
The peace order statute provides several enumerated and well-defined types of injunctive
relief to be imposed by a court in a manner “minimally necessary to protect the petitioner” and
for no greater duration than up to six months. Md. Code, Cts. & Jud. Proc. § 3-1505(d), (f).
Such relief—injunctive, limited, and enumerated—bears no resemblance to filing a civil

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harassment suit seeking $4 million dollars, plus attorneys’ fees and costs. See ECF No. 20 ¶ 23.
The Court therefore, cannot understand how the peace order statute’s carefully articulated
injunctive relief supports the conclusion that Maryland intended to create a private right of action
for money damages under the criminal statute prohibiting harassment.
Plaintiff nonetheless contends that such inference is plausible because the peace order
statute sets no limitation on the type of relief an aggrieved part may seek: “a petitioner [for a
peace order] is not limited to or precluded from pursuing any other legal remedy.” Md. Code,
Cts. & Jud. Proc. § 3-1502(a). Fairly read, this provision makes plain that pursuing a peace order
does not preclude also pursuing other established avenues of relief. Nothing about this provision
permits the creation of an entirely new cause of action. Cf. Davidson v. Seneca Crossing Section
II Homeowner’s Ass’n, Inc., 187 Md. App. 601, 637 (2009) (holding that peace order statute
does not preclude petitioner from pursuing injunctive relief on parallel common law causes of
action). Plaintiff’s harassment claim must be dismissed.
iii.

Pennsylvania Wiretap Act (Count III)

Defendants likewise move to dismiss Count III, alleging a violation of the Pennsylvania
Wiretap Act specifically applicable to installation of mobile tracking devices, because the statute
does not provide for a private cause of action . 18 Pa. Cons. Stat. § 5761. The Court agrees
with Defendants. The Act prohibits law enforcement installation of a GPS device, unless law
enforcement receives a court order supported by a probable cause that “criminal activity has
been, is or will be in progress and that the use of a mobile tracking device will yield information
relevant to the investigation of the criminal activity.” Id. § 5761(c)(4). Nowhere does the plain
language of the statute expressly allow for an aggrieved party to file a civil suit against another
private individual.

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Under Pennsylvania law, courts consider the following factors in deciding whether a
criminal statute confers a private cause of action:
(1) whether the plaintiff is one of the class for whose especial
benefit the statute was enacted; (2) whether there is any indication
of legislative intent, explicit or implicit, either to create such a
remedy or to deny one; and (3) whether it is consistent with the
underlying purposes of the legislative scheme to imply such a
remedy for the plaintiff.
Schappell v. Motorists Mut. Ins. Co., 594 Pa. 94, 103 (2007).
With respect to the first factor, Plaintiff plainly appears to be within the class for whose
benefit the statute was enacted. Section 5761 prohibits unauthorized GPS installation—precisely
what happened here. As an individual whose interests are to be free from unauthorized and
unwarranted GPS tracking, Plaintiff prevails on the first factor.
As to the second factor regarding legislative intent, the Court is “guided by the Statutory
Construction Act.” Id. at 101. Under the Statutory Construction Act, “[w]hen the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa. Cons. Stat. § 1921. Considering the Wiretap Act as a whole,
this factor is fatal to Plaintiff’s claim. The Wiretap Act prohibits warrantless GPS tracking as
well as unlawful interception of wire, electronic or oral communication, 18 Pa. Const. Stat.
§§ 5703–28, or stored wired and electronic communications and record access. Id. §§ 5741–49.
The wire and electronic or oral communication provisions expressly allow for private causes of
action. §§ 5725, 5747. Accordingly, these provisions demonstrate that when the legislature
wishes to extend civil liability in the wiretap context, it knows how to do so. Reading these
provisions in pari materia with § 5761, which does not expressly provide for a private cause of
action, precludes the Court from finding that the legislature intended to allow a private cause of
action as to GPS devices. Because the Legislature did not so intend, Plaintiff cannot meet the
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second factor.
Plaintiff counters that the Pennsylvania legislature allows for a civil claim, relying
exclusively upon Commonwealth v. Burgos, 64 A.3d 641 (Pa. Super. Ct. 2013) (holding that
wiretap order did not violate the Fourth Amendment). Burgos concerns only law enforcement’s
use of tracking devices in the context of a motion to suppress illegally obtained evidence in a
criminal case. Indeed, Burgos noted that § 5761 was enacted for “the limited purpose of
permitting law enforcement officials, upon a showing of probable cause, to gather evidence
necessary to bring about a criminal prosecution and conviction.” Id. at 654 (quoting Com. v.
Cruttenden, 976 A.2d 1176, 1179 (Pa. Super. Ct. 2009)). Burgos does not, in any way, allow a
private cause of action. Additionally, the Court was unable to find a single case where a litigant
brought a private lawsuit based upon violations of the subchapter on mobile tracking devices.
The Court must dismiss Plaintiff’s claim under the Pennsylvania Wiretap Act.
B.

Leave to Amend

Plaintiff seeks leave to amend his Amended Complaint to include a claim of civil
conspiracy and negligence. ECF No. 30-1 at 15. Courts “should freely give leave when justice
so requires.” Fed. R. Civ. P. 15(a)(2). Leave may be denied, however, when allowing
amendment would “be prejudicial to the opposing party, when the moving party has acted in bad
faith or with a dilatory motive, or when the amendment would be futile.” Arora v. James, 689 F.
App’x 190, 190 (4th Cir. 2017) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006))
(internal quotation marks omitted).
Here, Defendants solely contend that amendment is futile because no underlying tort has
been committed. ECF No. 32 at 4. Defendants are correct that civil conspiracy requires (1) a
confederation of two or more persons by agreement (2) to commit some unlawful or tortious act

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done in furtherance of the conspiracy, which (3) damages the Plaintiff. Lloyd v. Gen. Motors
Corp., 397 Md. 108, 154 (2007); Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super.
Ct. 2004). Because the tortious act of intrusion upon seclusion survives, however, so does the
predicate for civil conspiracy. The amendment is not futile. The Court will grant the request.
IV.

Conclusion

For the foregoing reasons, Defendants’ motions to dismiss (ECF Nos. 5, 25, 27) are
granted in part and denied in part, the Rismiller Defendants’ motion for leave to file a reply (ECF
No. 34) is denied, and the Rismiller Defendants’ second motion to dismiss and reply are stricken.
ECF Nos. 29, 33. A separate order follows.

November 15, 2018_____________
Date

___/S/_______________________
Paula Xinis
United States District Judge

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