Conlan Abu et al v. Dickson et al

Filing 39

OPINION and ORDER DENYING DEFENDANT'S 16 MOTION FOR RECONSIDERATION Signed by District Judge Linda V. Parker. (AFla)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONLAN ABU and
RYAN MOORE,
Plaintiffs,
Civil Case No. 20-10747
Honorable Linda V. Parker

v.
STANLEY B. DICKSON and
DICKSON & ASSOCIATES, PC,
Defendants.
_____________________________/

OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR
RECONSIDERATION
Defendants Stanley B. Dickson and Dickson & Associates filed a motion to
dismiss or for summary judgment (ECF No. 9), which this Court granted in part
and denied in part on March 22, 2021 (ECF No. 14). The matter is now before the
Court on Defendants’ motion for reconsideration with respect to the Court’s denial
of summary judgment as to Plaintiffs’ Computer Fraud and Abuse Act and Stored
Communications Act claims. (ECF No. 16). Plaintiffs filed a response to the
motion. (ECF No. 18.) For the reasons that follow, the Court is denying the
motion.

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When Defendants filed their motion for reconsideration on April 5, 2021, the
Local Rules for the Eastern District of Michigan provided the following standard
for such motions:1
Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or reconsideration
that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by which the court
and the parties and other persons entitled to be heard on the
motion have been misled but also show that correcting the
defect will result in a different disposition of the case.
E.D. Mich. LR 7.1(h)(3). Palpable defects are those which are “obvious, clear,
unmistakable, manifest or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F.
Supp. 2d 731, 734 (E.D. Mich. 2002).
In their motion, Defendants claim that the Court mistakenly distinguished “a
company’s authority to access the emails stored on company-owned servers and its
authority to access the emails stored on third-party servers via company-owned
licenses.” (ECF No. 16 at Pg ID 720). Defendants misread the Court’s previous
opinion and order, however. As an initial matter, the Court did not state that
Defendants “would have been authorized” to access the emails at issue if “[t]he
Account had been ‘stored on Defendants’ server.’” (Id. at Pg ID 719-20 (citing
ECF No. 14 at Pg ID 697-98).) Instead, the Court said “may”, which is consistent

1

Local Rule 7.1 was amended, effective December 1, 2021.
2

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with the Sargeant court’s position that ownership of the server “is not dispositive.”
Sargeant v. Maroil Trading Inc., No. 17-81070, 2018 WL 3031841, at *6 (S.D.
Fla. May 30, 2018). It is merely one factor in determining authorization, which
was the issue for which this Court found genuine issues of material fact precluding
summary judgment. Even if the Court did err in its decision distinguishing the
ownership of the server, it is not a palpable defect because it does not change the
fact that there is a genuine issue of material fact as to authorization.
Defendants may have possessed some authorization to access the email
accounts in question. (ECF No. 14 at Pg ID 697). However, a genuine issue of
material fact remains as to whether or not Defendants exceeded their authorization.
Having “the ability to access the individual email accounts and change their
passwords . . . does not mean that the defendants were authorized to do so.”
NovelPoster v. Javitch Canfield Grp., 140 F. Supp. 3d 938, 946 (N.D. Cal. 2014).
Defendants could still exceed authorization when they have authority to access
emails. Brown Jordan Int’l v. Carmicle, No. 0:14-cv-61415, 2016 WL 815827, at
*40-41 (S.D. Fla. Mar. 2, 2016) (holding there was CFAA liability for exceeding
authorization when a member of management accessed employee emails though
the company’s policy allowed the company “to monitor and review Internet use
and e-mail communications.”). Defendants cite Joseph v. Carnes, 108 F. Supp. 3d

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613 (N.D. Ill. 2015); however, that court did not find “that email administrators
have the inherent authority to access the [email] archives” in question. Id. at 617.
This Court found a genuine issue of material fact regarding the extent of
Defendants’ authorization with respect to Mr. Moore’s emails. (ECF No. 14 at Pg
ID. 697). As the Supreme Court recently stated: “[A]n individual ‘exceeds
authorized access’ when he accesses a computer with authorization but then
obtains information located in particular areas of the computer—such as files,
folders, or databases—that are off limits to him.” Van Buren v. United States, 141
S. Ct. 1648, 1662 (2021). The record is not clear on whether Defendants were
authorized to access the contents of Mr. Moore’s email account. (ECF No. 14 at
Pg ID. 697). Indeed, Mr. Moore says “that he never consented or gave Mr. Massey
permission to view, print, or copy his personal emails.” (Id. at Pg 698).
Authorization is the material fact of which there is a genuine issue. The ownership
of the servers is not dispositive. Therefore, no palpable defect exists in the Court’s
opinion and order.
For these reasons, the Court is DENYING Defendants’ motion for

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reconsideration (ECF No. 16).
IT IS SO ORDERED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 7, 2022

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