Galey et al v. Walters et al
Filing
10
Opinion and Order dismissing without prejudice Plaintiffs' claims against the Defendant for violations of the Stored Communications Act under Title 18 U.S.C. Section 2701(a). Plaintiffs are granted leave to file an amended complaint without fourteen (14) days of the entry of this Order. Signed by District Judge Keith Starrett on January 20, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RYAN GALEY and REGINA GALEY
V.
PLAINTIFFS
CIVIL ACTION NO. 2:14cv153-KS-MTP
JASON WALTERS and
DOES 1 through 10
DEFENDANTS
OPINION AND ORDER
This matter is before the Court upon its consideration of the Plaintiffs’ Response
to Order to Show Cause [9]. On December 22, 2014, the Court entered its Opinion and
Order [8] on the Defendant Jason Walters’ Motion to Dismiss [4]. The Court found the
grounds for dismissal urged by Walters not well taken and denied the motion. The
Court also questioned the viability of the Plaintiffs’ sole federal cause of action pursuant
to its sua sponte review of the claim and the Fifth Circuit’s decision in Garcia v. City of
Laredo, Texas, 702 F.3d 788 (5th Cir. 2012). The Court thus ordered the Plaintiffs to
show cause as to why Garcia does not mandate the dismissal of their allegations that
Walters violated the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712.
Having considered the Plaintiffs’ Response [9], the allegations of the Complaint [1], and
the controlling law, the Court finds that the Plaintiffs’ SCA cause of action should be
dismissed without prejudice and with leave to amend.
The SCA states in pertinent part:
Except as provided in subsection (c) of this section whoever-(1) intentionally accesses without authorization a facility through which
an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such system shall
be punished as provided in subsection (b) of this section.
18 U.S.C. § 2701(a).1 The SCA authorizes criminal punishment and provides for private
civil actions for damages. See 18 U.S.C. § 2707. Plaintiffs allege violations of §
2701(a) based on Walters intentionally obtaining private “communications and
photographs that were electronically stored on Regina[ Galey’s] cellular telephone, SIM
[subscriber identity module] card and elsewhere” without her authorization. (Compl. [1]
at ¶ 10.)
The Fifth Circuit considered a similar claim in Garcia. Fannie Garcia alleged that
the defendants violated the SCA by accessing without permission text messages and
photographs stored on her cell phone. See Garcia, 702 F.3d at 790. The Fifth Circuit
affirmed the dismissal of Garcia’s claim because “the Stored Communications Act . . .
does not apply to data stored in a personal cell phone.” Id. As an initial matter, the Fifth
Circuit referenced several authorities militating against Garcia’s contention that a
computer or mobile device, such as her cell phone, fell within the scope of a statutory
“facility”:
The court [Eleventh Circuit] found that the SCA clearly applies . . . to
1
The term “facility” is not defined under the SCA. See Garcia, 702 F.3d at 792.
However, the statute defines an “electronic communication service” as “any service
which provides to users thereof the ability to send or receive wire or electronic
communications.” 18 U.S.C. § 2510(15). The definitions listed in § 2510 are
incorporated by reference into the SCA via 18 U.S.C. § 2711(1). “‘Electronic storage’ is
defined as ‘(A) any temporary, intermediate storage of a 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.’” Garcia, 702 F.3d at 792 (quoting 18 U.S.C. §
2510(17)).
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information stored with a phone company, Internet Service Provider (ISP), or
electronic bulletin board system, but does not, however, appear to apply to
the source's hacking into Steiger's computer to download images and
identifying information stored on his hard-drive. . . .
A number of district courts that have considered this question have also
concluded that the relevant facilities that the SCA is designed to protect are
not computers that enable the use of an electronic communication service,
but instead are facilities that are operated by electronic communication
service providers and used to store and maintain electronic storage.
Recently, the Northern District of California held that a class of iPhone
plaintiffs had no claim under the SCA because their iPhones did not
constitute facilit[ies] through which an electronic communication service is
provided.
Thus these courts agree that a home computer of an end user is not
protected by the SCA. . . .
[The SCA] deals only with facilities operated by electronic communications
services such as electronic bulletin boards and computer mail facilit[ies], and
the risk that communications temporarily stored in these facilities could be
accessed by hackers. It makes no mention of individual users' computers.
Id. at 792-93 (citations and internal quotation marks omitted). Even assuming that
Garcia’s phone could somehow be considered a “facility” under the SCA, she could not
meet the “electronic storage” and “electronic communication service” elements of the
statute. Id. at 793. Information temporarily stored with a telephone company pending
delivery or stored with such a company for backup protection services is statutorily
protected, “[b]ut information that an individual stores to his hard drive or cell phone is
not in electronic storage under the statute.” Id. (citations omitted). A “cell phone does
not provide an electronic communication service just because the device enables use of
electronic communications services . . . .” Id. Garcia’s failure to present evidence of
any defendant obtaining information from a cellular company or network, as opposed to
her phone, was fatal to her SCA claim. Id.
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The Court’s sua sponte consideration of the sufficiency of the Plaintiffs’ SCA
cause of action under Federal Rule of Civil Procedure 12(b)(6) focuses on the factual
averments of the Complaint [1]. See Whatley v. Coffin, 496 Fed. Appx. 414, 416 (5th
Cir. 2012). Viewed through the prism of Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). “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.; see also In re Great Lakes Dredge & Dock Co.,
624 F.3d 201, 210 (5th Cir. 2010) (“To be plausible, the complaint’s ‘[f]actual allegations
must be enough to raise a right to relief above the speculative level.’”) (quoting
Twombly, 550 U.S. at 555). A complaint containing mere “labels and conclusions, or a
formulaic recitation of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss.,
681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted).
Although courts are to accept all well-pleaded facts as true and view those facts in the
light most favorable to the nonmoving party, courts are not required “to accept as true a
legal conclusion couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v.
Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (citations omitted).
The factual allegations of the Plaintiffs’ Complaint fail to state a plausible violation
of the SCA. Plaintiffs’ central allegation that Walters intentionally, and without
authorization, seized communications and photographs that were stored on Regina
Galey’s “cellular telephone” is legally insufficient under controlling Fifth Circuit case law.
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(Compl. [1] at ¶¶ 8, 9, 10.) “[T]he Stored Communications Act . . . does not apply to
data stored in a personal cell phone.” Garcia, 702 F.3d at 790. The Complaint’s
reference to a SIM card also fails to implicate the protections of the SCA. Generally, a
SIM card is a removable component of a cellular telephone that stores information such
as a subscriber’s telephone number. See Celltrace LLC v. AT & T Inc., No. 6:09cv294,
2011 WL 738927, at *19-20 (E.D. Tex. Feb. 23, 2011). The Court discerns no legally
significant distinction between a SIM card and other personal devices—a “cell phone,” a
“hard-drive,” and a “home computer”—that have been found unprotected by the SCA.
Garcia, 702 F.3d at 792, 793.2 Further, “information that an individual stores to his hard
drive or cell phone is not in electronic storage under the statute.” Id. at 793. Plaintiffs’
vague and conclusory assertion that Walters improperly obtained protected information
electronically stored “elsewhere”3 hardly raises their right to relief “above the speculative
level.” Wilson v. Birnberg, 569 Fed. Appx. 343, 348 (5th Cir. 2014).
Plaintiffs’ aforementioned Response [9] posits that Walters violated the SCA by
not simply obtaining information stored on Regina Galey’s cellular telephone, but by
“using the information he thereby obtained to access, obtain and disseminate the
Galeys’ private information stored with the phone company and/or Internet Service
Provider.” (Resp. [9] at p. 4.) Fifth Circuit precedent would appear to support the
viability of this SCA claim. See Garcia, 702 F.3d at 792 (“Courts have interpreted the
2
See also In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F.
Supp. 2d 434, 446 (D. Del. 2013) (“An individual’s personal computing device is not ‘a
facility through which an electronic communication service is provided,’ as required
under the SCA.”).
3
(Compl. [1] at ¶¶ 9, 10.)
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statute to apply to providers of a communication service such as telephone companies,
Internet or e-mail service providers, and bulletin board services.”). Nonetheless, the
Response [9] is not the operative pleading and the Court finds no references to any
telephone company or internet service provider on the face of the Plaintiffs’ Complaint
[1]. Cf. Leal v. McHugh, 731 F.3d 405, 407-08 n.2 (5th Cir. 2013) (declining to consider
additional facts asserted in an appellate brief but not the complaint in reviewing
dismissal under Rule 12(b)(6)). Therefore, the Plaintiffs’ cause of action against
Walters under the SCA will be dismissed for failure to state a claim. The dismissal will
be without prejudice and the Plaintiffs will be afforded an opportunity to file an amended
pleading curing the aforementioned deficiencies in their federal claim. See Hart v.
Bayer Corp., 199 F.3d 239, 248 n.6 (5th Cir. 2000).
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiffs’ claims
against the Defendant for violations of the Stored Communications Act under Title 18
U.S.C. § 2701(a) are dismissed without prejudice; and, the Plaintiffs are granted leave
to file an amended complaint within fourteen (14) days of the entry of this Order.
SO ORDERED AND ADJUDGED this the 20th day of January, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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