McBride et al v. Shipley et al

Filing 30

ORDER granting in part and denying in part #25 Motion to Dismiss, as more fully set out. Signed by Honorable David L. Russell on 8/28/18. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARK MCBRIDE,
MCBRIDE HOMES, LLC,
Plaintiffs,
v.
GEORGE C. SHIPLEY,
SHIPLEY & ASSOCITES, INC.,
JOHN DOE COMPANY,
JOHN DOE(S),
Defendants.

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Case No. CIV-18-205-R

ORDER
Before the Court is Defendants George C. Shipley and Shipley & Associates, Inc.’s
Amended Motion to Dismiss, Doc. 25. Plaintiff Mark McBride discovered a GPS tracking
device under the bed of a truck belonging to his company, Plaintiff McBride Homes. They
brought five state law claims and a claim under the Electronic Communications Privacy Act
(“ECPA”), 18 U.S.C. § 2511, against Defendant George Shipley and his political consulting
firm, Shipley & Associates (“S&A”). Amended Complaint, Doc. 19. Plaintiffs claim that
S&A’s unknown clients, Defendant(s) John Doe(s), hired S&A, who then hired H.L.
Christenson of investigation firm Eastridge Investigations to place the device “without
[McBride’s] knowledge or consent” so that S&A could “conduct surveillance, monitor, track,
and oversee McBride’s whereabouts” for purposes of intimidation, extortion, or public
embarrassment. Id. at 2–4, 7–8. Plaintiffs have alleged plausible claims for invasion of privacy
and civil conspiracy, and the Court grants the Motion in part to dismiss the remaining claims.

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I. Discussion
Before analyzing the substance of Plaintiffs’ Amended Complaint, the Court must first
address serious shortcomings by Defendants’ counsel. The Court only granted counsel leave
to exceed LCvR7.1(e)’s 25-page limit by five pages (Doc. 22), yet their Motion (Doc. 25) is
36 pages. Beyond violating the Court’s order, this excess is problematic given that counsel
(1) spent six pages on baseless discovery allegations that have no bearing on the plausibility
of Plaintiffs’ claims under Rule 12(b)(6); (2) spent four pages explaining the well-known
Twombly and Iqbal standard; (3) copied and pasted sections from their prior motion to dismiss
(Doc. 11) without any regard for material changes to the Amended Complaint, leading to
multiple misstatements; and (4) raised countless facts outside the Amended Complaint that
the Court cannot consider at the 12(b)(6) stage.
Moving to the sufficiency of Plaintiffs’ Amended Complaint, a complaint may be
dismissed upon a motion for “failure to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). Rule 8(a)(2) requires a “short and plain statement of the claim showing
that the pleader is entitled to relief.” The standard “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Dismissal is proper “if, viewing the well-pleaded factual
allegations in the complaint as true and in the light most favorable to the non-moving party,
the complaint does not contain ‘enough facts to state a claim to relief that is plausible on its
face.’” MacArthur v. San Juan County, 497 F.3d 1057, 1064 (10th Cir. 2007) (quoting
Twombly, 550 U.S. at 547). Plaintiffs cannot merely give “labels and conclusions, and a

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formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Such
conclusory allegations are not entitled to the Court’s presumption for Plaintiffs. Instead,
Plaintiffs must plead facts to raise the “right of relief above the speculative level.” Id. at 558.
A. Trespass to Chattels
Although Plaintiffs allege a plausible agency relationship between Defendants and the
alleged tort feasor, H.L Christenson, the underlying conduct is not a plausible trespass to
chattels because Plaintiffs do not allege that the GPS tracker caused damage to the chattel,
Plaintiffs’ truck. See Mid-Cent. Fish Co. v. Gentry Poultry & Egg Co., 118 P.2d 225, 227
(Okla. 1941) (“In a tort action a plaintiff can proceed against any or all joint tort feasors and
can also proceed against a principal or responsible superior without proceeding against the
agent of said principal or responsible superior.”). Under Oklahoma law—which follows the
Second Restatement of Torts—the mere fact of contact with another’s property only grants
the owner license to use force to protect that property. It does not necessarily mean liability
for an independent claim of trespass to chattels. Woodis v. Oklahoma Gas & Elec. Co., 704
P.2d 483, 485 (Okla. 1985) (citing Restatement of Torts 2d § 217). Liability requires damages.
Defendants must have “dispossessed [Plaintiffs] of the chattel”; impaired “its condition,
quality, or value”; deprived Plaintiffs “of the use of the chattel for a substantial time”; or
caused bodily harm to the possessor or harm “to some person or thing in which the possessor
has a legally protected interest.” Restatement of Torts 2d § 218; see also id. cmt. e (“The
interest of a [chattel] possessor . . . in its inviolability, unlike the similar interest of a [land]
possessor . . . , is not given legal protection by an action for nominal damages for harmless
intermeddlings . . . . In order that an actor who interferes with another’s chattel may be liable,

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his conduct must affect [a] more important interest of the possessor.”); United States v. Jones,
565 U.S. 400, 419 n.2 (2012) (Alito, J., concurring); In re Jetblue Airways Corp. Privacy
Litig., 379 F. Supp. 2d 299, 328–29 (E.D.N.Y. 2005).
Plaintiffs’ allege in a conclusory fashion that Defendants committed trespass to chattels
by “intermeddling with Plaintiffs’ property that interfered with Plaintiffs’ use and enjoyment
of the vehicle.” Doc. 19, at 4. Granted, information gleaned from the GPS tracker may have
damaged Plaintiffs, but they do not allege that the truck was harmed in any measurable way.
Nor does Plaintiffs’ “recitation of the element[] of a cause of action,” their allegation that
Defendants deprived them of “use and enjoyment of the[ir] vehicle,” nudge the trespass to
chattels claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570;
Doc. 19, at 4. The claim therefore cannot survive 12(b)(6) scrutiny.
B. Invasion of Privacy
It is premature to dismiss Plaintiffs’ invasion of privacy claim. Plaintiffs are liable for
invasion of privacy if they “unreasonabl[y] intru[ded] upon the seclusion of” Plaintiffs or their
“private affairs or concerns” in a way that “would be highly offensive to a reasonable person.”
McCormack v. Oklahoma Pub. Co., 613 P.2d 737, 739 (Okla. 1980) (quoting Restatement of
Torts 2d §§ 652A, 652B). Although tracking Plaintiffs movements on public roads does not
constitute intrusion upon seclusion, viewing the facts in Plaintiffs’ favor, it is plausible that
Defendants tracked their movements on private property. Restatement of Torts 2d § 652B
cmt. c. “The tracking device recorded and transmitted information about McBride’s
whereabouts . . . to track, follow, and oversee McBride’s movements on a daily basis in order
to view, discover, obtain and/or disclose his private affairs and concerns . . . .” Doc. 19, at 4.

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C. Intentional Infliction of Emotional Distress
Plaintiff’s conclusory allegations of intentional infliction of emotional distress
(“IIED”) fail to satisfy the essential “severe” distress element of the claim. A claim for IIED
requires that “(1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct
was extreme and outrageous; (3) the defendant’s conduct caused the plaintiff emotional
distress; and (4) the resulting emotional distress was severe.” Computer Publications, Inc. v.
Welton, 49 P.3d 735 (Okla. 2002). The Amended Complaint states that Defendants’
nonconsensual placement of the GPS device on Plaintiffs’ car “caused severe emotional
distress to McBride beyond which a reasonable person could be expected to endure.” Doc.
19, at 6. This is a mere conclusory “recitation of the element[] of a cause of action” not entitled
to a presumption of truth without facts making that “severe emotional distress” plausible. Id.;
Twombly, 550 U.S. at 555. The Court therefore dismisses Plaintiffs’ IIED claim.
D. Negligence
Plaintiff alleges an intentional tort that cannot form the basis of a negligence claim.
Oklahoma law has long recognized that “[n]egligence, in its generally accepted meaning, has
in it no element of willfulness; but involves a state of mind which is negative[,] . . . in which
the person fails to give attention to the character of his acts or omissions or to weigh their
probable or possible consequences.” Broom v. Wilson Paving & Excavating, Inc., 356 P.3d
617, 629 (Okla. 2015) (quoting Kile v. Kile, 63 P.2d 753, 755 (Okla. 1936)). An “intentional
wrong” is not negligent. Id. (citing St. Louis & S.F.R. Co., 174 P. 1036, 1040 (Okla. 1918)).
Plaintiff alleges that “[i]n order to obtain . . . damaging information about McBride,
Defendant Shipley specifically requested that an electronic device [be placed] underneath the

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vehicle.” Doc. 19, at 3. Even viewing these allegations in Plaintiffs’ favor, this sort of
intentional conduct—deliberate “activity that would produce an ‘expected or intended’
injury,” Broom, 356 P.3d at 629—cannot subject Defendants to a claim for negligence.
E. Civil Conspiracy
Plaintiffs allege a plausible civil conspiracy between Defendants Shipley, Shipley &
Associates, and unknown John Doe Defendants to use GPS monitoring of Plaintiff McBride’s
whereabouts to obtain political opposition research into his private affairs. Doc. 19, at 2–7.
“A civil conspiracy consists of a combination of two or more persons to do an unlawful act,
or to do a lawful act by unlawful means.” Brock v. Thompson, 948 P.2d 279, 294 (Okla. 1997).
The elements are “(1) two or more persons; (2) an object to be accomplished; (3) a meeting
of minds on the object or course of action; (4) one or more unlawful, overt acts; and
(5) damages as the proximate result.” Schovanec v. Archdiocese of Oklahoma City, 188 P.3d
158, 175 (Okla. 2008) (quoting Closs v. Goose Creek Consol. Indep. School Dist., 874 S.W.2d
859, 871–72 (Tex. App. 1994)). Defendants argue that their underlying conduct is not
“unlawful,” but the Court’s finding that Plaintiffs allege a plausible invasion of privacy claim
disposes of that argument. Id.; see Gaylord Entm’t Co. v. Thompson, 958 P.2d 128, 148 (Okla.
1980). Accordingly, Plaintiff’s civil conspiracy claim survives 12(b)(6) scrutiny.
F. ECPA Communications Interception
Plaintiffs fail to allege a plausible ECPA violation because Defendants did not
intercept “any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a). Plaintiffs
allege that Defendants affixed a GPS tracker “to conduct surveillance, monitor, track, and
oversee McBride’s whereabouts.” Doc. 19, at 3. While the Amended Complaint states that

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“Defendants intercepted, disclosed, procured, used or endeavored to use electronic
communications through the use of an electronic device . . . placed on Plaintiffs’ vehicle,” the
ECPA expressly precludes “any communication from a tracking device” from the definition
of “electronic communications.” Doc. 19, at 8; 18 U.S.C. § 2510(12)(C). Further, Plaintiffs’
allegation regarding their “reasonable expectation of privacy with respect to conversations
and communications made within their vehicle” does not make the claim plausible because
Plaintiffs do not allege that the GPS device intercepted oral communications or transmitted
anything beyond location data. Doc. 19, at 5. Thus, Plaintiffs’ ECPA claim must be dismissed.
II. Conclusion
The Motion to Dismiss (Doc. 25) is GRANTED IN PART with respect to Plaintiffs’
claims for trespass to chattels, IIED, negligence, and ECPA communications interception, and
DENIED IN PART with respect to the claims for invasion of privacy and civil conspiracy.
IT IS SO ORDERED this 28th day of August 2018.

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