Galey et al v. Walters et al

Filing 8

ORDER denying Defendant Jason Walters' 4 Motion to Dismiss. Additionally, the Court directs the Plaintiffs to file a written response with the Court showing cause as to why the Fifth Circuit's decision in Garcia v City of Laredo, Tex., 702 F.3d 788 (5th Cir. 2012) does not require the dismissal of their claims under the Stored Communications Act. Signed by District Judge Keith Starrett on December 22, 2014 (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 on the Defendant Jason Walters’ Motion to
Dismiss [4]. Having considered the submissions of the parties, the record, and the
applicable law, the Court finds that the bases for dismissal urged by the Defendant are
not well taken. Thus, the motion will be denied. However, the Court questions the
viability of the Plaintiffs’ federal cause of action based upon its sua sponte review of the
sufficiency of the claim under controlling Fifth Circuit precedent. The Plaintiffs will
therefore be required to show cause as to why their federal claim against the Defendant
should not be dismissed.
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. (See Compl. [1].) The Complaint asserts four
causes of action: (i) violations of the Stored Communications Act (“SCA”), 18 U.S.C. §§
2701-2712; (ii) invasion of privacy—intrusion upon seclusion; (iii) invasion of privacy—
public disclosure of private facts; and (iv) intentional infliction of emotional distress.
Plaintiffs seek, inter alia, statutory damages under the SCA, punitive damages, and
attorneys’ fees.

On October 10, 2014, Walters filed his Motion to Dismiss [4] pursuant to Rule 12
of the Federal Rules of Civil Procedure. Walters presents two bases for dismissal: (i)
improper venue; and (ii) 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.) According to Walters, questions regarding the phone and
photographs referenced in the Complaint are also at issue in a separate alienation of
affection action brought by Walters against Ryan Galey in the Circuit Court of Forrest
County, Mississippi (the “State Action”). Walters asserts that he filed the State Action
months before the Plaintiffs filed the instant suit. Further, Plaintiffs purportedly filed this
action in lieu of responding to Walters’ repeated requests for proof of ownership of the
subject telephone.
Walters fails to reference any specific section or subsection of Rule 12 in support
of dismissal. Nonetheless, his improper venue defense clearly falls under the scope of
Rule 12(b)(3). “On a Rule 12(b)(3) motion to dismiss for improper venue, the court must
accept as true all allegations in the complaint and resolve all conflicts in favor of the
plaintiff.” Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 Fed. Appx. 612, 615 (5th
Cir. 2007) (citing Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004);
5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1352 (3d
ed. 2004)). The general venue statute, which applies here, states in pertinent part that
an action may be brought in “a judicial district in which any defendant resides . . . .” 28
U.S.C. § 1391(b)(1). The Complaint avers that Walters resides in Forrest County,
Mississippi. (See Compl. [1] at ¶ 3.) Forrest County is located in the Southern District
of Mississippi. See 28 U.S.C. § 104(b)(3). Accordingly, taking the allegations of the
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Complaint as true, venue is proper in this District.
To the extent Walters is contending that venue is improper because of the
existence of the related State Action, the Court rejects that contention. Walters cites no
statute or court opinion favoring the Rule 12(b)(3) dismissal of a federal action due to a
relating proceeding pending in state court. Moreover, duplicative federal and state court
actions are usually allowed to proceed until a judgment is rendered in one of the forums.
See, e.g., Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 369-70 n.10 (5th
Cir. 1995); Weinrich v. Levi Strauss & Co., 366 F. Supp. 2d 439, 445-46 (S.D. Miss.
2005). Walters’ motion says nothing about the entry of judgment in the State Action.
For all of these reasons, Walters’ request for dismissal under Rule 12(b)(3) is refused.

Walters’ second ground for dismissal is not so easy to classify. The purported
failure of the Plaintiffs “to provide any proof” does not fit into any of the subsections of
Rule 12(b). (Def.’s Mot. to Dismiss [4] at ¶ 3.) Walters’ proof-related dismissal request
also falls outside the scope of Rule 12(c), which authorizes a judgment on the
pleadings. Viewing the limited averments of the Motion to Dismiss in toto, the Court
finds that Walters is actually requesting dismissal based on a discovery dispute.
Preceding this dismissal request, Walters complains that the Plaintiffs have yet to serve
their “Pre-Discovery Disclosures.” (Def.’s Mot. to Dismiss [4] at ¶ 2.) Walters also
posits that counsel for the Plaintiffs rebuked his counsel’s multiple requests for “proof of
ownership of the subject phone” between the filing of the State Action and this lawsuit.
(Def.’s Mot. to Dismiss [4] at ¶ 2.) Any dispute between the parties regarding the failure
of legal counsel to respond to a request for proof (i.e., information) relating to the State
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Action and predating this federal action should be submitted to the judge presiding over
the State Action. Furthermore, the time for service of the parties’ initial disclosures in
this cause has not yet been established by the entry of a scheduling order under Local
Uniform Civil Rule 16(a). See L.U.Civ.R. 26(a)(1)(A). Therefore, Walters’ argument for
dismissal of the Complaint due to the Plaintiffs’ alleged failure to furnish proof is
misplaced, premature, and denied.
Notwithstanding the foregoing, the Court has serious doubts regarding the
viability of the Plaintiffs’ first cause of action under the SCA. The Complaint alleges
violations of Title 18 U.S.C. § 2701(a) based on Walters’ unauthorized and intentional
access of Regina Galey’s communications and photographs from her cellular phone
and subscriber identity module card. (See Compl. [1] at ¶¶ 10, 26-28.) Plaintiffs’
opposition to Walters’ dismissal motion describes the “gravamen of the Complaint” as
Walters seizing “private and personal communications, photographs and other
information relating to both Plaintiffs which was stored in Regina’s cellular telephone,
and . . . thereafter intentionally and publically disseminat[ing] the seized information
without the authorization of either of the Plaintiffs.” (Pls.’ Resp. Mem. to Mot. to Dismiss
[7] at p. 4) (emphasis added). The United States Court of Appeals for the Fifth Circuit
has affirmed the dismissal of similar claims because “the Stored Communications Act . .
. does not apply to data stored in a personal cell phone.” Garcia v. City of Laredo, Tex.,
702 F.3d 788, 790 (5th Cir. 2012) (emphasis added). There are other authorities in
accord. See, e.g., In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F.
Supp. 2d 434, 446-47 (D. Del. 2013); Navarro v. Verizon Wireless, L.L.C., No. 12-1958,
2013 WL 275977, at *3 (E.D. La. Jan. 24, 2013).
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The Court has the authority to consider the sufficiency of a cause of action on its
own accord. See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 642 (5th Cir. 2007)
(citation omitted). However, a district court must usually afford a claimant notice and an
opportunity to respond prior to the sua sponte dismissal of an action for failure to state a
claim. Id. at 642-43. Via this Order, the Plaintiffs are notified of the Court’s intention to
dismiss their SCA cause of action unless they are able to show cause as to why Garcia
v. City of Laredo does not mandate dismissal.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss [4]
is denied.
IT IS FURTHER ORDERED AND ADJUDGED that on or before January 9, 2015,
Plaintiffs shall file a written response with the Court showing cause as to why the Fifth
Circuit’s decision in Garcia v. City of Laredo, Tex., 702 F.3d 788 (5th Cir. 2012) does
not require the dismissal of their claims under the Stored Communications Act.
SO ORDERED AND ADJUDGED this the 22nd day of December, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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