The Children's Hospital Corporation v. Cakir

Filing 26

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Children's Hospital's motion for judgment on the pleadings on its conversion and replevin claims. D. 12. The Court ALLOWS Children's Hospital's motion to dismiss Cakir's counterclaim. D. 12.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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THE CHILDREN’S HOSPITAL
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CORPORATION D/B/A BOSTON
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CHILDREN’S HOSPITAL,
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Plaintiff,
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Civil Action No.: 15-cv-13281
v.
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ISIN CAKIR,
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Defendant.
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)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

April 25, 2016

Introduction
Plaintiff Children’s Hospital Corporation (“Children’s Hospital”) has filed this action

against defendant Isin Cakir (“Cakir”) alleging that Cakir is in wrongful possession of the images
and data on the laptop computer Cakir used during the course of his employment with Children’s
Hospital. D. 1. Children’s Hospital asserts claims for replevin and conversion. Id. In his
answer, Cakir raises a counterclaim for abuse of process. D. 9. Children’s Hospital has moved
for judgment on the pleadings on both of its claims. D. 12. Children’s Hospital also moves to
dismiss Cakir’s abuse of process counterclaim. Id. For the reasons stated below, the Court
DENIES the motion for judgment on the pleadings on Children’s Hospital’s claims and
ALLOWS the motion to dismiss Cakir’s counterclaim.

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II.

Standard of Review
A. Motion to Dismiss
On a motion to dismiss for failure to state a claim upon which relief can be granted

pursuant to Fed. R. Civ. P. 12(b)(6), the Court conducts a two-step process, García-Catalán v.
United States, 734 F.3d 100, 103 (1st Cir. 2013), to determine if the facts alleged “plausibly
narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
Cir. 2012) (internal citation omitted). Reading the complaint as a whole, the Court identifies and
disregards the conclusory legal allegations. García-Catalán, 734 F.3d at 103. The Court accepts
factual allegations as true. Id. The Court then determines whether the factual allegations, taken
together, present a reasonable inference of liability for the defendant’s allegedly wrongful
conduct. See Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
The Court will dismiss a pleading that fails to include “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To
avoid dismissal, a complaint must provide ‘a short and plain statement of the claim showing that
the pleader is entitled to relief.’” García-Catalán, 734 F.3d at 102 (internal citation omitted). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557).
B. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is “ordinarily
accorded much the same treatment” as a Rule 12(b)(6) motion. Aponte-Torres v. Univ. Of
Puerto Rico, 445 F.3d 50, 54 (1st Cir. 2006). A motion for judgment on the pleadings “calls for
an assessment of the merits of the case at an embryonic stage.” Pérez-Acevedo v. Rivero2

Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (internal citation and quotation marks omitted). As a
result, the Court “view[s] the facts contained in the pleadings in the light most favorable to the
nonmovant and draw[s] all reasonable inferences therefrom” in its favor. Id. (internal citation
and quotation mark omitted).

On a Rule 12(c) motion, however, the Court considers the

pleadings as a whole, including the answer. See Aponte-Torres, 445 F.3d at 54–55. Those
assertions in the answer that have not been denied and do not conflict with the assertions in the
complaint are taken as true. See Santiago v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010).
The Court is also permitted to consider documents fairly incorporated into the pleadings and
facts susceptible to judicial notice as it may do with a Rule 12(b)(6) motion. See R.G. Fin. Corp.
v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006). The Court may not, however, resolve
contested facts. See id. (internal citation omitted). Only if those properly considered facts
“conclusively establish the movant’s point” is the motion for judgment on the pleadings granted.
Id. (internal citation omitted). Where material facts are disputed, the Court must deny the
motion. Id.
C. Procedural History
This civil action is related to Cabi et al. v. Boston Children’s Hospital (“Cabi”), an
ongoing suit in which Cakir, along with two other plaintiffs, asserts employment discrimination,
wrongful termination and retaliation claims against Children’s Hospital. Cabi et al. v. Boston
Children’s Hosp., No. 15-cv-12306-DJC, 2016 WL 593495, at *1 (D. Mass. Feb. 12, 2016). The
plaintiffs in Cabi filed their complaint on June 11, 2015. Id. at *3. Less than three months later,
on September 3, 2015, Children’s Hospital instituted this action against Cakir. D. 1. Cakir
raised a counterclaim for abuse of process in his answer. D. 9. Children’s Hospital moves for
judgment on the pleadings on its conversion and replevin claims. D. 12. Children’s Hospital

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moves to dismiss Cakir’s counterclaim for abuse of process. Id. The Court heard the parties on
the pending motion and took the matter under advisement. D. 20.
D. Factual Summary
From October 2010 to February or April 2015, Cakir was employed as a post-doctoral
fellow at Children’s Hospital. D. 1 ¶ 8; D. 9 at 5. Throughout his employment, Cakir used a
laptop to conduct his work (“the Laptop”). D. 1 ¶ 1; D. 9 at 1. As an employee, Cakir was
subject to three Children’s Hospital policies related to network resources, data storage and data
ownership rights. D. 1 ¶¶ 15-17; D. 9 at 2-3; D. 13 at 7-8. At some point after his employment
ended, Cakir delivered the Laptop to TechFusion, a third-party computer forensics company. D.
1 ¶¶ 3, 13, 20; D. 9 at 2. TechFusion created a forensic image of the Laptop, capturing all of the
data contained on the Laptop. D. 1 ¶¶ 3, 13, 20; D. 9 at 2. Children’s Hospital alleges that its
employment policies grant Children’s Hospital ownership of all of the images on the Laptop
including all files, deleted files, hard drives, data and metadata as well as an exact forensic copy
of the Laptop (“Laptop Data”). D. 1 ¶ 1. According to Children’s Hospital, Cakir instructed
TechFusion not to release the Laptop Data to Children’s Hospital, D. 1 ¶¶ 3, 24, and continues to
refuse to produce the Laptop Data, as imaged by and in the possession of TechFusion. D. 1 ¶ 26.
E. Analysis
A. Children’s Hospital is Not Entitled to Judgment on its Conversion Claim (Count
I)
Conversion involves “the exercise of dominion or control over the personal property of
another.” Third Nat. Bank of Hampden Cty. v. Cont’l Ins. Co., 388 Mass. 240, 244 (1983). A
plaintiff must show that (1) the defendant intentionally and wrongfully exercised control over
property owned or possessed by the defendant, (2) the plaintiff was damaged and (3) if the
defendant legitimately gained possession under a good-faith claim of right, the plaintiff’s
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demand for the return of the property was refused.

See Evergreen Marine Corp. v. Six

Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993) (citing Magaw v. Beals, 272
Mass. 334 (1930)). Children’s Hospital contends that, pursuant to internal policies, Children’s
Hospital is the sole owner of the Laptop Data, D. 1 ¶ 29, Children’s Hospital is entitled to
immediate, exclusive and unqualified possession of the Laptop Data, id., and Cakir has
wrongfully converted the Laptop Data by refusing to deliver it to Children’s Hospital. D. 1 ¶¶
28-31; D. 13 at 6-9.
Children’s Hospital relies upon three policies to establish its ownership of the Laptop
Data: Acceptable Use of Computer and Network Resources (“Acceptable Use Policy”), D. 13-2,
Participation Agreement for Persons Using the Funds or Facilities of Children’s Hospital Boston
(“Participation Agreement”), D. 13-1, and Children’s Hospital Policy on Inventions and
Intellectual Property (“Intellectual Property Policy”).

D. 9-1.

The parties agree that the

Acceptable Use Policy, Participation Agreement and Intellectual Property Policy apply to Cakir.
D. 1 ¶ 1; D. 9 at 1-3; D. 13 at 7; D. 14 at 3 & n.1. Cakir concedes that Children’s Hospital’s
“policies govern what [Children’s Hospital] owns” and that “items falling within definitions
provided by those policies are owned by [Children’s Hospital].” D. 14 at 5. The parties,
however, contest the limits of Children’s Hospital’s ownership under these policies. According
to Children’s Hospital, pursuant to the Participation Agreement and Acceptable Use Policy,
Children’s Hospital “owns all the data on the Laptop, as well as the exact forensic copy of the
Laptop made at . . . Cakir’s instruction.” D. 13 at 2. Conversely, Cakir contends that the Laptop
Data contains, in part, personal and privileged communications that are not covered by the
policies and Children’s Hospital is not entitled to such data. D. 14 at 3-4. The Court reviews the
relevant provisions of the policies. The Acceptable Use Policy provides:

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CHB provides Computer and Network Resources, including email and use
of the Internet, for legitimate business use in the course of your assigned
duties. Use of these resources and access to the information on them is a
privilege granted to you at the sole discretion of CHB. . . . Information
stored on or transmitted over CHB’s Computer and Network Resources
(including email) is the sole and exclusive property of CHB, and remains so
even when stored on non-CHB equipment and media (such as your personal
laptop and/or mobile device). . . . When a User ends employment or
association with CHB, all CHB provided equipment must be returned. This
includes laptops, PDAs . . . and any other equipment assigned to the User
by CHB.
D. 13-2 at 2, 4. The plain language of the Acceptable Use Policy provides that all electronic
information Cakir stored on or transmitted over Children’s Hospital’s computer and network
resources is the sole and exclusive property of Children’s Hospital. Notably, ownership pursuant
to the Acceptable Use Policy does not turn upon the subject matter of the data. Instead, the
language is sufficiently broad to encompass any data that is transmitted over or stored on
Children’s Hospital’s computer or network resources.
In relevant part, the Participation Agreement provides:
I understand that during the pursuit of activities within the scope of my
employment by Children’s Hospital Boston (“Hospital”), or during the
performance of sponsored research made available to me by the Hospital . .
. I may (individually or jointly with others) conceive or first reduce to
practice inventions or discoveries, or copyrightable materials, or develop
tangible or intangible research results and intellectual property (including,
but not limited to, research notebooks, data, data bases, photographs,
original drawings and diagrams, computer programs, and chemical and
biological materials . . . ). In consideration of my employment, or my
opportunity to perform sponsored research, or my use of Hospital funds,
resources, or facilities, I agree: (1) that all such research results, intellectual
property, inventions, discoveries and copyrightable materials will be owned
by the Hospital . . . [and] to refrain from removing research materials,
copyrightable materials, and other intellectual property from the Hospital
premises.”
D. 13-1 at 2. Pursuant to its plain language, the Participation Agreement grants Children’s
Hospital ownership over the research results and intellectual property Cakir developed within the

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scope of his employment with Children’s Hospital.

The Participation Agreement is

supplemented by the Intellectual Property Policy. In relevant part, the Intellectual Property
Policy provides:
The Hospital owns all research results and intellectual property, whether
tangible or intangible, developed by any person on the premises of the
Hospital, or through substantial use of the Hospital’s resources or facilities,
or that relates to the research conducted by such person for the Hospital, or
by a person within the scope of his or her employment by the Hospital . . .
For purposes of clarity, such intellectual property includes, but is not
limited to, research notebooks, data, databases, photographs, original
drawings and diagrams, computer programs, as well as chemical and
biological materials . . . Such intellectual property shall be removed from
the Hospital’s premises or transferred to other parties only for noncommercial research purposes . . . . Every invention based on the Hospital’s
intellectual property, as defined above, shall be the property of the Hospital.
D. 9-1 at 2-3. The Intellectual Property Policy is broader than the Participation Agreement:
where the Participation Agreement limits ownership to research conducted within the scope of
employment, the Intellectual Property Policy establishes that Children’s Hospital’s ownership
extends to (1) research Cakir produced through the substantial use of Children’s Hospital
resources, (2) content that relates to research Cakir conducted for Children’s Hospital and (3)
research Cakir developed on Children’s Hospital’s premises. Taking all of the policies together,
then, Children’s Hospital owns (1) any data within the Laptop Data that was transmitted over or
stored on Children’s Hospital computers and networks; (2) any data containing research that fell
within the scope of Cakir’s employment with Children’s Hospital; (3) any data that relates to
research conducted for Children’s Hospital; (4) any data containing research that was produced
through substantial use of Children’s Hospital resources; and (5) any data containing research
that was conducted on Children’s Hospital’s premises. D. 9-1; D. 13-1; D. 13-2.
Cakir asserts that the Laptop Data contains, inter alia, personal data and privileged
communications that fall outside of the applicable policies. D. 9 at 1-2. In response, without
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denying that the Laptop Data contains Cakir’s personal data, Children’s Hospital points to the
Acceptable Use Policy for coverage. D. 13 at 8. Children’s Hospital stresses that rights of
privacy do not extend to Children’s Hospital’s network resources and the “Acceptable Use
Policy does not carve out an exception to the Hospital’s ownership of the Laptop Data” for
“personal information.” Id. The Acceptable Use Policy, however, applies only to data that was
transmitted over Children’s Hospital’s network and resources.

D. 13-2 at 2.

Thus, the

Acceptable Use Policy does not grant Children’s Hospital ownership of Cakir’s personal
communications to the extent those communications never interacted with Children’s Hospital’s
network and resources. Children’s Hospital has presented no basis for its ownership over any of
Cakir’s data that was (1) never transmitted or stored over Children’s Hospital’s network and (2)
was not created with the use of Children’s Hospital resources, within the scope of Cakir’s
employment with Children’s Hospital, on Children’s Hospital’s premises or in relation to
research conducted for Children’s Hospital.1
The remaining factual dispute concerns whether the Laptop Data contains personal and
privileged data that falls outside of the policies is fatal to Children’s Hospital’s motion. Cakir
“cannot convert what [Children’s Hospital] does not own.” Jayson Assocs., Inc. v. United Parcel
Serv. Co., No. 04-cv-10771-RWZ, 2004 WL 1576725, at *2 (D. Mass. July 15, 2004) (citing
Nadal-Ginard v. Children’s Hosp. Corp., No. 94-cv-3782-TSB, 1995 WL 1146118, at *8 (Mass.
Super. Dec. 1, 1999)) (dismissing conversion claim where ownership was not alleged). That is,
“only a defendant that wrongfully exercises acts of ownership has committed conversion.” See
Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir.

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Moreover, Children’s Hospital’s argument that its ownership extends to metadata and
information showing chain of custody, D. 13 at 8, even if true, would only mean that Children’s
Hospital owns metadata that otherwise falls within the Acceptable Use Policy, Participation
Agreement and Intellectual Property Policy.
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2005) (internal citation and quotation marks omitted). Because Children’s Hospital’s conversion
claim pertains to “all the data on the Laptop, as well as the exact forensic copy of the Laptop,” D.
13 at 2, Children’s Hospital has failed to establish its ownership over all of the property that is
the subject of its conversion claim. In light of this factual dispute, Children’s Hospital is not
entitled to judgment on the pleadings. See, e.g., Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d
398, 403 (D. Mass. 2011) (denying motion for judgment on the pleadings even though the
moving party “[might have] eventually [been] entitled to judgment” because factual questions
remained at that juncture); Sarvis v. Polyvore, Inc., No. 12-cv-12233-MBB, 2015 WL 5934759,
at *3, *9 (D. Mass. Aug. 24, 2015), report and recommendation adopted, No. 12-cv-12233-LTS,
2015 WL 6182226 (D. Mass. Sept. 14, 2015) (denying motion for judgment on the pleadings
where defendant’s answer gave rise to factual disputes). Accordingly, the motion is denied.
B. Children’s Hospital is Not Entitled to Judgment on its Replevin Claim (Count
II)
To prevail on a replevin claim, a plaintiff must show that (1) the goods in question were
unlawfully taken from their owner’s possession or have been unlawfully detained (2) the owner
has a right to possession and (3) the value of the goods exceeds $20. See Wilson v. Estate of
Arcese, No. 07-cv-01461-MAH, 2007 WL 2429607, at *3 (Mass. Super. Aug. 9, 2007). “[N]ot
only must the plaintiff have the right to possession generally, but he must have the right to
immediate, exclusive and unqualified possession of the property as against each defendant.” Id.
(alteration in original) (internal quotation marks and citation omitted). For all of the reasons
discussed above, Children’s Hospital has failed to establish ownership of the Laptop Data in its
entirety – an essential element of the replevin claim. See, e.g., Davis v. Smith-Springfield Body
Corp., 250 Mass. 278, 284 (1924) (explaining that “[a] plaintiff in replevin must maintain his
case on the strength of his own title or claim”); Wilson, 2007 WL 2429607, at *3 (dismissing
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replevin claim where “[m]issing from these facts [was] any specificity [as] to ownership of
property . . . [and] any allegation that the defendants are unlawfully detaining the property”).
Accordingly, Children’s Hospital is not entitled to judgment on the pleadings on its replevin
claim.
Although Children’s Hospital is not entitled to judgment on its replevin and conversion
claims, it remains undisputed that Children’s Hospital owns those portions of the Laptop Data
that fall under the Acceptable Use Policy, Participation Agreement and Intellectual Property
Policy. 2 Accordingly, the parties shall abide by the terms of the order entered by the Superior
Court, D. 24, and the authorization entered by Cakir, D. 25.
C. Cakir Has Not Adequately Stated a Claim for Abuse of Process
Finally, Children’s Hospital moves to dismiss Cakir’s abuse of process counterclaim. To
state a claim for abuse of process, Cakir must allege that (1) process was used (2) the use was
motivated by an ulterior purpose and (3) the plaintiff suffered damage. See MHA Fin. Corp. v.
Varenko Invs. Ltd., 583 F. Supp. 2d 173, 178 (D. Mass. 2008) (citing Jones v. Brockton Pub.
Mkts., Inc., 369 Mass. 387, 389 (1975)). Process means “causing papers to issue by a court to
bring a party or property within its jurisdiction.” Silvia v. Building Inspector of W. Bridgewater,
35 Mass. App. Ct. 451, 453 n.4 (1993) (quoting Jones, 369 Mass. at 390) (internal quotation
marks omitted). Abuse of process involves the “malicious use of legal process to accomplish
some ulterior purpose for which it was not designed or intended, or which was not the legitimate
purpose of the particular process employed.” LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 142 (D.

2

This Court is aware of the order entered in the related state court proceeding, D. 24, and
Cakir’s letter regarding his authorization to release of forensic copy of the Laptop to Children’s
Hospital. D. 25. Having reviewed the order and Cakir’s authorization and having received no
notice from the parties that either moots the instant motion (which neither action, on its face,
appears to do), the Court has proceeded to consider the motion on its merits.
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Mass. 2007) (granting summary judgment for defendant where there was “no evidence of any
kind” to indicate that officers acted with ulterior or illegitimate purpose) (quoting Carroll v.
Gillespie, 14 Mass. App. Ct. 12, 26 (1982)) (internal quotation mark omitted).
Ulterior purpose exists where a party “institut[es] a civil action to achieve a collateral
purpose other than winning the lawsuit.” Am. Mgmt. Servs., Inc. v. George S. May Intern. Co.,
933 F. Supp. 64, 69 (D. Mass. 1996) (citing Silvia, 35 Mass. App. Ct. at 453–54). The ulterior
motive, however, must be “more than the intent to harass; there must be intention to use process
for coercion or harassment to obtain something not properly part of the suit.” Broadway Mgmt.
Servs. Ltd. v. Cullinet Software, Inc., 652 F. Supp. 1501, 1503 (D. Mass. 1987). Courts have,
for example, found an ulterior purpose where a party uses process to improperly influence the
outcome in a separate, ongoing lawsuit. See, e.g., Am. Velodur Metal, Inc. v. Schinabeck, 20
Mass. App. Ct. 460, 470 (1985) (concluding that initiating a separate litigation for the sake of
coercing wife to accept terms unfavorable to her in divorce settlement constituted an ulterior
purpose).
Children’s Hospital initiated this lawsuit against Cakir, D. 1, thereby satisfying process.
Cakir alleges that Children’s Hospital instituted this lawsuit in an effort to influence the ongoing
Cabi litigation. D. 9 at 7. Cakir alleges that Children’s Hospital could have raised its concerns
regarding the Laptop Data by filing a counterclaim in Cabi and, instead, Children’s Hospital
needlessly instituted not only this lawsuit but also a state court action against another plaintiff
from Cabi. Id. According to Cakir, Children’s Hospital raises the same conversion and replevin
claims in both new lawsuits. Id. In addition, Cakir alleges that Children’s Hospital already has
access to the data it seeks including, but not only, through the laptops of the other plaintiffs from
Cabi, as Children’s Hospital has possession of those laptops. Id. Cakir alleges that he has

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offered Children’s Hospital access to certain categories of data. Id. at 3; D. 25. Moreover, it is
undisputed that Children’s Hospital is in possession of the Laptop, D. 1 ¶ 4; D. 9 at 2, although it
is disputed that the Laptop still contains all of the Laptop Data.

Even accepting Cakir’s

allegations as true, it cannot be said, even at this juncture, that they amount to an abuse of
process which necessarily requires “use of process as a threat or a club to coerce or extort some
collateral advantage not properly involved in the proceeding.” Broadway Mgmt. Servs. Ltd., 652
F. Supp. at 1503. First, as discussed above, even as the Court declines to grant judgment on the
pleadings to Children’s Hospital on its claims, those claims are not without merit. Second, to the
extent that Cakir contends that the filing of this separate lawsuit amounts to abuse of process as
Children’s Hospital could have asserted such claims in Cabi, that Cakir may be “burdened with
the ordinary costs of defending such a lawsuit,” id., or the fact that Children’s Hospital chose to
assert its claims in a separate lawsuit is insufficient to state an abuse of process claim. Third,
that the claims Children’s Hospital’s brought in this case are related to claims that Cakir and
others have brought against the hospital in another case does not make the filing of this lawsuit
an abuse of process. Even taken together and accepted as true at least at this juncture, Cakir has
not adequately alleged that, in bringing this lawsuit, Children’s Hospital “aim[ed] to further a
purpose other than winning the lawsuit.” Cf. Scholz v. Goudreau, No. 13-cv-10951-DJC, 2013
WL 6909433, at *7 (D. Mass. Dec. 26, 2013) (denying motion to dismiss abuse of process claim
where nonmoving party allegedly instituted three baseless lawsuits to drive a competitor out of
business). Moreover, Cakir alleges in conclusory fashion that he suffered “damage” as a result
of Children’s Hospital’s alleged abuse of process, D. 9 at 8, but the nature of that damage,
separate and apart from defending a non-frivolous claim, has not been alleged. For all of these
reasons, Cakir has not adequately stated a claim for abuse of process.

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F. Conclusion
For these reasons, the Court DENIES Children’s Hospital’s motion for judgment on the
pleadings on its conversion and replevin claims. D. 12. The Court ALLOWS Children’s
Hospital’s motion to dismiss Cakir’s counterclaim. D. 12.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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