Gridiron Management Group LLC et al v. Wranglers et al

Filing 102

MEMORANDUM AND ORDER - The MOTION for Partial Summary Judgment 87 filed by Plaintiff Jeffrey Sprowls, is denied. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GRIDIRON MANAGEMENT GROUP LLC,
JEFFREY SPROWLS,
8:12CV3128
Plaintiffs,
vs.

MEMORANDUM AND ORDER

PATRICK PIMMEL, SUNJACK
FOOTBALL, LLC;
Defendants.

This matter is before the Court on the Motion for Partial Summary Judgment
(Filing No. 87), filed by Plaintiff Jeffrey Sprowls (“Sprowls”). For the reasons stated
below, the Motion will be denied.
FACTUAL BACKGROUND
Unless otherwise indicated, the following facts were presented in the parties’
briefs and were supported by pinpoint citations to admissible evidence in the record that
the parties have admitted, or that the parties have not properly resisted as required by
NECivR 56.11 and Fed. R. Civ. P. 56.
At all times relevant to this lawsuit, Sprowls was a member of Plaintiff Gridiron
Management Group, LLC (“Gridiron”), an entity that owned the Omaha Beef, an indoor
football team. Sprowls had an email account through Yahoo!, Inc. (“Yahoo!”). Defendant
Patrick Pimmel (“Pimmel”) formerly coached the Omaha Beef. At a time when Pimmel
was no longer employed by the Omaha Beef, Pimmel accessed Sprowls's Yahoo! email
account at least three different times on different days.

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“Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).

Sprowls alleges that Pimmel did not have authority to access Sprowls’s Yahoo!
email account when he did so. (Filing No. 89-5 ¶ 2.) Pimmel did not have a court
warrant or order, nor did he access Sprowls’s Yahoo! account at the request of a law
enforcement officer. Nevertheless, Pimmel states that Sprowls gave Pimmel the Yahoo!
email account password while Pimmel was still coaching the Omaha Beef. (Filing No.
92-2 ¶ 2.) Pimmel asserts that Sprowls did not restrict or limit his authorization to access
the Yahoo! email account, nor did he ever tell Pimmel that Pimmel was no longer
permitted to access Sprowls’s email account. (Filing No 92-2 ¶¶ 9, 10.) When Sprowls
gave Pimmel the password to his account, he told Pimmel that he had nothing to hide
and did not care who read his emails. (Pimmel Aff., Filing No. 92-2, ¶ 9.) Sprowls gave
his Yahoo! email account password to several individuals. (Filing No. 92-2 ¶ 9.)
Pimmel alleges that he accessed Sprowls’s email because he believed Sprowls
threatened him. Pimmel specifically states that Sprowls threatened to “get” Pimmel and
his family because Pimmel cooperated with the postal inspector after Pimmel
discovered crack cocaine delivered to the Omaha Beef office. (Pimmel Dep., Filing No.
92-1 at 40:11-42:15; 43:19-44:13.2) Pimmel alleges that he logged into Sprowls’s
Yahoo! account three times in response to the alleged threats. (Filing No. 92-2 ¶ 5.)
Pimmel accessed the account to look for references to himself, his family, or individuals
that might be used to carry out the alleged threats. (Filing No. 92-2 ¶ 5.) Pimmel opened
one email in Sprowls’s account. (Filing No. 92-2 ¶ 6.) The account indicated that the
email Pimmel opened had already been viewed. (Filing No. 92-2 ¶ 6.)

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In this Memorandum and Order, pinpoint references to deposition testimony will be to the
deposition page number and line rather than the generated ECF page number.

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STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th
Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotations omitted). In reviewing
a motion for summary judgment, the court will view “all facts and mak[e] all reasonable
inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom
Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will
bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper
summary judgment motion to be opposed by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party’s
claims by showing “the absence of a genuine issue of material fact.” Id. at 325. Instead,
“the burden on the moving party may be discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
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metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting
Torgerson, 643 F.3d at 1042) (internal quotations omitted). “‘[T]he mere existence of
some alleged factual dispute between the parties’” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751
(8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotations omitted). Otherwise,
where the Court finds that “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party,” there is no “genuine issue for trial” and summary
judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557
U.S. 557, 586 (2009)) (internal quotations omitted).
DISCUSSION
Sprowls seeks summary judgment on Count II of the Amended Complaint,
arising under the Stored Wire & Electronic Communications & Transactional Records
Access Act (“SCA”), 18 U.S.C. § 2701. The SCA creates a private cause of action for
unauthorized, intentional access to communications held in electronic storage. 18
U.S.C. §§ 2701, 2707; Shlahtichman v. 1–800 Contacts, Inc., 615 F.3d 794, 803 (7th
Cir. 2010). The SCA specifically prohibits (1) unauthorized access to “a facility through
which an electronic communication service is provided,” or (2) “intentionally exceed[ing]
an authorization to access that facility,” thereby “obtain[ing], alter[ing], or prevent[ing]
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authorized access to a wire or electronic communication while it is in electronic storage
in such system . . . .” 18 U.S.C. § 2701(a). Sprowls argues that he is entitled to
judgment as a matter of law on his SCA claim against Pimmel because Pimmel
accessed Sprowls’s email account without authorization. Defendants assert that
material issues of fact remain as to whether Pimmel violated the SCA. Specifically,
Pimmel argues that he was authorized to access Sprowls’s Yahoo! account.3
Summary judgment is precluded because there is conflicting evidence about
whether Pimmel was authorized to access Sprowls’s Yahoo! account. Authorized
access to email communications is exempt from § 2701(a). See Theofel v. Farey–
Jones, 359 F.3d 1066, 1072–73 (9th Cir.2003) (stating that the SCA exempts conduct
authorized by user of electronic communications service with respect to communication
of user); Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F.Supp.2d 817, 821
(E.D. Mich. 2000) (“[F]or ‘intentional’ access in excess of authorization to be a crime
and actionable civilly, the offender must have obtained the access to private files
without authorization”). The SCA does not define “authorization” and “there is relatively
scant authority on the definition of ‘authorized’ under the SCA.” Perkins v. LinkedIn
Corp., 13-CV-04303-LHK, 2014 WL 2751053, at *12 (N.D. Cal. June 12, 2014). The
Ninth Circuit analogized the authorization exemption to the SCA to consent that defeats
a common law claim for trespass. Id. (citing Theofel, 359 F.3d at 1072). The Ninth
Circuit adopted the Restatement (Second) of Torts for this proposition, which states: “If
words or conduct are reasonably understood by another to be intended as consent, they
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Pimmel also argues that the emails Pimmel accessed were not stored communications under
the SCA. Because material issues of fact remain as to the scope of Pimmel’s authorization, the Court
need not address that issue at this time.

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constitute apparent consent and are as effective as consent in fact.” Id. (citing
Restatement (Second) of Torts § 892). Other courts have analogized authorization
under the SCA to consent under the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. §§ 2510-2520. See, e.g. Anzaldua v. Ne. Ambulance & Fire Prot. Dist.,
978 F. Supp. 2d 1016, 1028 (E.D. Mo. 2013) (citing Deal v. Spears, 980 F.2d 1153,
1156–57 (8th Cir.1992) (concluding that constructive consent is adequate, and actual
consent may be implied from the circumstances)).
While it is undisputed that Sprowls gave Pimmel the password to his Yahoo!
email account and expressly authorized Pimmel to access the account on at least one
occasion, there is conflicting evidence regarding the extent of that authorization.
Sprowls summarily asserts that after Pimmel left his position as coach of the Omaha
Beef, Pimmel did not have authorization to access Sprowls’s account. (Filing No. 89-5,
Sprowls Aff., ¶ 2.) Pimmel argues that Sprowls gave him the password to access his
account without any indication that such access was limited or that it would be revoked.
Pimmel asserts that Sprowls shared his email password with several individuals. (Filing
No. 92-2 ¶ 9.) Pimmel also testified that when Sprowls told him the password, Sprowls
said, “I have nothing to hide. Everybody knows my password.” (Filing No. 89-3, at
67:17-18.)
The Court cannot conclude as a matter of law that Pimmel lacked authorization
to access Sprowls’s Yahoo! account. Sprowls argues that any authorization given to
Pimmel was revoked, at the latest, at the time Pimmel’s employment with the Omaha
Beef ended. Sprowls argues that Pimmel’s arguments to the contrary are absurd, and
the Court need not accept Pimmel’s unreasonable statements of fact in the face of
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overwhelming evidence refuting Pimmel’s account. Before the Court at this time,
however, are conflicting statements that raise issues of material fact regarding the
extent of Pimmel’s authority to access Sprowls’s Yahoo! account. Courts faced with
similar questions under the SCA have concluded that a jury must resolve the limits of
the access authorized. See Anzaldua, 978 F. Supp. 2d at 1028 (noting that where a
defendant gained access to plaintiff's private email and passwords when she was
involved in a relationship with plaintiff, and there was no indication that the plaintiff
revoked his consent or authorization before she allegedly accessed the emails, there
was a question as to whether any access was truly unauthorized); Samples v.
Rainsberger, CV 06-20-AS, 2007 WL 4208310, at *4 (D. Or. Nov. 28, 2007) (“The
evidence before the court raises issues regarding the credibility of both parties as well
as Plaintiff's intent in giving Defendant the password to his email accounts. . . . These
questions must be decided by the ultimate trier of fact.”) Genuine issues of material fact
remain as to the extent of Pimmel’s authority to access Sprowls’s Yahoo! account.
Therefore, Sprowls has not proven that Pimmel is liable under the SCA as a matter of
law. Accordingly,
IT IS ORDERED: the Motion for Partial Summary Judgment (Filing No. 87), filed
by Plaintiff Jeffrey Sprowls, is denied.
Dated this 11th day of July, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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