WORRELL et al v. HARSHE
OPINION. Signed by Judge Noel L. Hillman on 4/17/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GEORGE WORRELL and LINDA
HONORABLE NOEL L. HILLMAN
CIVIL ACTION NO. 16-2398
SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, P.A.
By: Alan C. Milstein, Esq.
308 Harper Drive, Suite 200
Moorestown, New Jersey 08057
Counsel for Plaintiffs
LOCKE LORD LLP
By: Aileen E. McTiernan, Esq.
44 Whippany Road, Suite 280
Morristown, New Jersey 07960
Counsel for Defendant
HILLMAN, United States District Judge:
This dispute arises out of a soured business relationship
between Plaintiffs George Worrell and Linda Souza, and Defendant
Presently before the Court is Defendant’s Motion
to Dismiss the Amended Complaint.
For the reasons stated herein,
the motion will be denied. 1
The following allegations are relevant to the issues raised
by the instant motion.
“Both plaintiffs have Yahoo! email
accounts which they use for both business and personal use
including communications with [legal] counsel.” (Amend. Compl. ¶
Allegedly, “[o]n April 27, 2015, defendant accessed the Yahoo
email accounts without plaintiffs’ authority or consent.” (Id. ¶
Specifically, plaintiffs allege that, on that date,
“defendant contacted Yahoo and, posing as one or both plaintiffs,
represented that she had forgotten the password to the [email]
She then entered the cell number of one or both
plaintiffs which was the security recovery method utilized by
Yahoo to restore a password and log into an account.” (Id. ¶ 18)
Defendant then allegedly logged into the accounts “without
the authorization of plaintiffs [and] intercepted the account
information in real time which gave [defendant] access to
plaintiffs’ email history as well as the ability to generate
emails from those accounts.” (Id. ¶ 19)
Worrell attaches to the Amended Complaint an email between himself
The Court has federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction
pursuant to 28 U.S.C. § 1367.
and his attorney which he alleges Defendant forwarded from
Worrell’s email account to Defendant’s own email account. (Amend.
Compl. ¶ 20 and Ex. 1)
The Amended Complaint asserts four claims: (1) violation of
the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et
seq.; (2) violation of the Stored Communications Act, 18 U.S.C. §
2701 et seq.; (3) libel and slander; and (4) violation of the New
Jersey Identity Theft Statute, N.J.S.A. § 2C:21-17. 2
When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them in
the light most favorable to the plaintiff. Evancho v. Fisher, 423
F.3d 347, 351 (3d Cir. 2005).
It is well settled that a pleading
is sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
Under the liberal federal pleading rules, it is not necessary
to plead evidence, and it is not necessary to plead all the facts
that serve as a basis for the claim. Bogosian v. Gulf Oil Corp.,
The factual allegations relevant to Counts 3 and 4 are not
discussed in this opinion because those factual allegations are
not implicated by Defendant’s instant Motion to Dismiss.
562 F.2d 434, 446 (3d Cir. 1977).
However, “the Federal Rules of
Civil Procedure . . . do require that the pleadings give defendant
fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks “‘not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009)(“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”);
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(“Iqbal
. . . provides the final nail in the coffin for the ‘no set of
facts’ standard that applied to federal complaints before
Defendant moves to dismiss arguing that Plaintiffs have
failed to state claims under the federal statutes, and that the
Court should decline to exercise supplemental jurisdiction over
the remaining state law claims.
The Court considers each argument
Under the Electronic Communications Privacy Act (“ECPA”), any
person who “intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept
any wire, oral, or electronic communication” violates the Act. 18
U.S.C. § 2511(1)(a).
The Act defines “intercept” as “the aural or
other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical, or
other device.” 18 U.S.C. § 2510(4). 3
Defendant argues that “Plaintiffs do not allege any facts to
support their claim that [Plaintiff] ‘intercepted’ an electronic
communication.” (Moving Brief, p. 4)
In Fraser v. Nationwide Mutual Insurance Company, the Third
Circuit held, “an ‘intercept’ under the ECPA must occur
contemporaneously with transmission,” and therefore, “a stored email could not be intercepted within the meaning of [the ECPA].”
352 F.3d 107, 113 (3d Cir. 2003).
In Fraser, the summary judgment
record demonstrated that Defendant Nationwide, which was Plaintiff
Fraser’s employer, did not violate the ECPA when it searched its
own computer servers for emails previously sent by Fraser. See id.
at 110 (Nationwide “searched its main file server -- on which all
With some exceptions not applicable here, 18 U.S.C. § 2520
creates a private right of action in favor of “any person whose .
. . electronic communication is intercepted.”
of Fraser’s e-mail was lodged -- for any e-mail to or from Fraser
that showed similar improper behavior.”).
Defendant asserts that Fraser compels dismissal of
Plaintiffs’ ECPA claims.
The Court disagrees; Fraser is factually
and procedurally distinguishable.
In this case Plaintiffs allege
that Defendant accessed Plaintiffs’ active email accounts “in real
time,” which gave defendant the “ability to generate emails from
(Amend. Compl. ¶ 19)
further allege that Defendant actually did “generate an email”
from Plaintiff Worrell’s email account. (Id. ¶ 20)
allegations support the plausible inference -- at least at this
early stage of the case -- that there was both an interception of
an electronic communication and a transmission of such
communication at the same time.
Procedurally, it is important to note that Fraser was an
appeal from a summary judgment decision.
a motion to dismiss.
This Court is addressing
Thus, the Court must keep in mind that
Plaintiffs have not yet had the benefit of discovery to know
exactly what Defendant did, or did not, do with regard to
Plaintiffs’ email accounts and the transmission and interception
of electronic communications. See Byrd v. Aaron's, Inc., 14 F.
Supp. 3d 667, 675 (W.D. Pa. Mar. 31, 2014)(“With regard to . . .
Count I, for violation of the ECPA, the Court notes that
[Defendant] has raised persuasive objections about whether there
has actually been an ‘interception’ of an ‘electronic
communication,’ as required under the ECPA. . . . However, . . .
the Court agrees that in this stage of the litigation, Plaintiffs
have sufficiently pled a claim for direct liability under the
ECPA. . . . Whether an actual interception of an electronic
communication took place will be born out through discovery, and
[Defendant] is free to raise these arguments again on a more
developed record, as a motion for summary judgment.”); Arrington
v. ColorTyme, Inc., 972 F. Supp. 2d 733, 747 (W.D. Pa. 2013)
(“given the sophistication of the technology at issue, it is
entirely possible that discovery will reveal that the screenshots,
keystrokes and pictures were in some state of ‘transmission’ as
envisaged by the statute when they were obtained by
Plaintiffs have plausibly pled a claim for violation of the
Under the Stored Communications Act (“SCA”), it is unlawful
to (1) “intentionally access without authorization a facility
through which an electronic communication service is provided,” 18
U.S.C. § 2701(a)(1); or (2) “intentionally exceed an
authorization to access that facility; and thereby obtain . . .
authorized access to a[n] . . . electronic communication while it
is in electronic storage.” § 2701(a)(2); see also 18 U.S.C. § 2707
(creating a private right of action for violations of § 2701).
Defendant argues that the Amended Complaint fails to
plausibly allege facts supporting a conclusion that Defendant’s
alleged access was “without authorization,” and that any
electronic communication allegedly accessed was “in electronic
Both arguments fail.
First, the Amended Complaint’s allegations that Defendant
contacted Yahoo to recover Plaintiffs’ email passwords supports
the plausible inference that Defendant did not have, or know,
Plaintiffs’ passwords, which in turn supports the plausible
conclusion that Defendant was not authorized to access Plaintiffs’
Contrary to Defendant’s assertions, the Amended
Complaint’s additional allegations that Defendant was the CEO of
the parties’ joint business, and that Plaintiffs used their email
accounts for business, does not render Plaintiffs’ allegations of
unauthorized access implausible.
Second, the Stored Communications Act defines “electronic
storage” as “any temporary, intermediate storage of a[n] . . .
electronic communication incidental to the electronic transmission
thereof.” 18 U.S.C. § 2510(17)(A).
Similar to the Court’s ruling
concerning the ECPA claim, whether any electronic communication
alleged to be accessed by Plaintiff was “in electronic storage” is
better addressed at summary judgment.
At this stage of the case,
the Court cannot expect Plaintiffs to allege particular facts as
to where any given electronic communication, available through
Plaintiffs’ email accounts, was stored. See Integrated Waste
Solutions, Inc. v. Goverdhanam, 2010 U.S. Dist. LEXIS 127192 at
*18-19 (E.D. Pa. Nov. 30, 2010) (analyzing an SCA claim and
explaining, “[w]ithout delving into the operational intricacies of
Plaintiff’s website (a task inappropriate for this stage of
pleading), the Court finds that such allegations, taken as true,
raise a reasonable inference that Defendants accessed confidential
information incidental to its transfer to authorized users of
Plaintiff’s site — not simply data stored on Plaintiff’s
These allegations, though notably vague, are enough to
fulfill Plaintiff’s burden under Twombly and Rule 12(b)(6).”).
Plaintiffs have plausibly pled a claim for violation of the
Defendant’s argument that this Court should decline to retain
jurisdiction over the state law claims is premised on Defendant’s
arguments that Plaintiffs’ federal claims should be dismissed.
The Court holds that the federal claims are not subject to
dismissal at this stage of the case, therefore Defendant’s
supplemental jurisdiction argument is moot.
For the reasons set forth above, Defendant’s Motion to
Dismiss will be denied.
An appropriate Order accompanies this
Dated: April 17, 2016
At Camden, New Jersey
____s/ Noel L. Hillman____
Noel L. Hillman, U.S.D.J.
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