Galey et al v. Walters et al
Filing
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OPINION AND ORDER denying 15 Motion to Dismiss. The parties are directed to contact the chambers of U.S. Magistrate Judge Michael T. Parker within 7 days to schedule a case management conference. Signed by District Judge Keith Starrett on 5/8/2015 (scp)
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 on the Defendant Jason Walters’ Motion to
Dismiss [15]. Having considered the submissions of the parties, the record, and the
applicable law, the Court finds that the motion should be denied.
On September 19, 2014, Plaintiffs Ryan Galey and Regina Galey filed this action
against Walters, alleging federal and state law claims relating to Walters purportedly
accessing and then disseminating private communications and photographs from
Regina Galey’s cellular telephone, memory storage card, and/or Subscriber Identity
Module card. (See Compl. [1].) On October 10, 2014, Walters moved for dismissal on
two grounds: (1) improper venue and (2) the failure of the Plaintiffs “to provide any
proof of ownership of the phone from which they base the allegations made in the
Complaint.” (Def.’s Mot. to Dismiss [4] at ¶ 3.) On December 22, 2014, the Court
denied Walters’ dismissal motion, but 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). (See
Opinion & Order [8].) The Court thus ordered the Plaintiffs to show cause as to why
Garcia did not mandate the dismissal of their allegations that Walters violated the
Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712. After considering the
Plaintiffs’ response, the Court dismissed their SCA claim without prejudice and with
leave to file an amended complaint. (See Opinion & Order [10].) On February 4, 2015,
Plaintiffs filed their First Amended Complaint [13]. On February 23, 2015, Walters filed
the subject Motion to Dismiss [15].
Walters first argues that the Plaintiffs’ First Amended Complaint fails to cure the
deficiencies pertaining to their SCA claim identified in the Court’s prior Order [10], and
dismissal is required under Federal Rule of Civil Procedure 12(b)(6). The Court
disagrees. The Fifth Circuit has held that “the Stored Communications Act . . . does not
apply to data stored in a personal cell phone.” Garcia, 702 F.3d at 790. However, the
Fifth Circuit has also recognized court rulings interpreting the SCA “to apply to providers
of a communication service such as telephone companies, Internet or e-mail service
providers, and bulletin board services.” Id. at 792 (citations omitted). In Garcia, the
plaintiff’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. See
id. at 793. The Plaintiffs’ First Amended Complaint alleges, inter alia, that Walters
intentionally and without authorization accessed Regina Galey’s private information and
communications, which were electronically stored with Verizon (her cellular telephone
service provider), Yahoo (her e-mail service provider), and Apple. (See 1st Am. Compl.
[13] at ¶¶ 8-10.) Accepting these allegations “as true,” the Court finds that the Plaintiffs
have presented sufficient factual material “to ‘state a [SCA] claim to relief that is
plausible on its face.’” Richardson v. Axion Logistics, L.L.C., 780 F.3d 304, 306 (5th Cir.
2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009)). Whether the Plaintiffs can actually prove their allegations may be resolved
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after discovery and through the summary judgment process.
Walters alternatively requests that the Court order the Plaintiffs to furnish a more
definite statement pursuant to Federal Rule of Civil Procedure 12(e). Walters asserts
that the only date listed in the Complaint is November 2013, when he was divorced from
Regina Galey, and in the absence of the specific dates the Plaintiffs allege he
committed multiple wrongful acts, the First Amended Complaint is too vague and
ambiguous to enable the preparation of a responsive pleading. Rule 12(e) states in
pertinent part: “A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). The Court possesses
“considerable discretion” in deciding a Rule 12(e) motion. DVI Bus. Credit Corp. v.
Crowder, 193 F. Supp. 2d 1002, 1009 (S.D. Tex. 2002) (citation omitted). The Court
exercises its discretion to deny Walters’ alterative request. In addition to listing the
month and year of Walters and Regina Galey’s divorce, the First Amended Complaint
alleges that Walters committed wrongful acts “[d]uring the pendency of the divorce
action . . . .” (1st Am. Compl. [13] at ¶ 8.) Plaintiffs persuasively argue that Walters, as
a party to the divorce proceeding, should be aware that the action was pending for
approximately seven (7) months. Cf. Wimsatt v. Fountainbleau Mgmt. Servs., LLC, No.
1:10cv169, 2010 WL 4810207, at *4 (N.D. Miss. Nov. 19, 2010) (considering the
defendant’s independent knowledge of information that would enable it to admit or deny
the plaintiffs’ claims in denying a Rule 12(e) motion). Walters’ ability to obtain through
discovery the specific dates within the seven-month period the Plaintiffs allege he
committed tortious acts warrants the denial of his Rule 12(e) motion. “Motions for more
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definite statements are not substitutes for discovery . . . and they should be overruled
where the information sought . . . can be . . . obtained through other procedures.”
Marine Leasing Servs., Inc. v. S. & W. Barge Lines, Inc., 42 F.R.D. 659, 660 (N.D. Miss.
1967) (citations omitted); see also Lewis v. Bellows Falls Congregation of Jehovah’s
Witnesses, No. 1:14cv205, 2015 WL 1393240, at *9 (D. Vt. Mar. 25, 2015) (recognizing
the general weight of authority holding that Rule 12(e) is designed to combat
unintelligibility in a pleading, as opposed to lack of detail, and specific dates can be
sought through discovery) (citations omitted).
IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant’s Motion to
Dismiss [15] is denied. Counsel for the parties are directed to contact the chambers of
the United States Magistrate Judge Michael T. Parker within seven (7) days of the entry
of this Order to schedule a case management conference.
SO ORDERED AND ADJUDGED this the 8th day of May, 2015.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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