Ducharme v. Madewell Concrete LLC et al

Filing 11

OPINION & ORDER denying 9 Motion to Dismiss for Failure to State a Claim; denying Plaintiff's request for attorney's fees. Signed by Honorable Henry M Herlong, Jr on 7/17/2020.(abuc)

6:20-cv-01620-HMH

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Entry Number 11

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Robert Ducharme,
Plaintiff,
vs.
Madewell Concrete, LLC and Kevin
Johnston,
Defendants.

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C.A. No. 6:20-1620-HMH
OPINION & ORDER

This matter is before the court on Defendants Madewell Concrete, LLC (“Madewell”)
and Kevin Johnston’s (“Johnston”) (collectively “Defendants”) motion to dismiss one of Robert
Ducharme’s (“Plaintiff”) claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim upon which relief can be granted. For the reasons set forth
below, the court denies Defendants’ motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the complaint, Plaintiff was employed by Defendants from April 2019 until
December 5, 2019. (Compl. ¶ 8, ECF No. 1.) Plaintiff alleges that Defendants deliberately
misclassified him as salaried, which exempted him from the overtime requirements of the Fair
Labor Standards Act (“FLSA”). Thus, Plaintiff contends that Defendants did not compensate
him for his overtime work. (Id. at ¶¶ 8-14, ECF No. 1.) Moreover, Plaintiff claims that
Johnston illegally and without authorization accessed Plaintiff’s personal email account. (Id. at
¶ 19, ECF No. 1.) Plaintiff contends that he used a company-issued iPad while working for
Defendants and that he accessed his personal email account on this iPad. (Id. at ¶ 15, ECF No.

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1.) Plaintiff resigned from his position with Defendants on December 5, 2019 and began
working for another company. (Id. at ¶ 16, ECF No. 1.) Plaintiff submits that on March 3,
2020, Madewell, at the direction of Johnston, filed suit against Plaintiff and his new employer in
state court and attached to the complaint a picture of an email from Plaintiff’s personal email
account, which was taken from the company-issued iPad. (Compl. ¶¶ 17-18, ECF No. 1.)
Plaintiff sued Defendants, alleging three claims: violations of (1) the Stored
Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., (2) the South Carolina Homeland
Security Act (“SCHSA”), S.C. Code Ann. § 17-30-10, et seq., and (3) the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201, et seq. (Id., generally, ECF No. 1.) On June 26, 2020,
Defendants filed a motion to dismiss Plaintiff’s SCHSA claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
(Mot. Dismiss, ECF No. 9.) Plaintiff filed a response in opposition on July 9, 2020. (Resp.,
ECF No. 10.) This matter is now ripe for review.
II. DISCUSSION OF THE LAW
A. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), “a motion to dismiss for failure to state
a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts
which would support its claim and would entitle it to relief.” Mylan Lab., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). “In considering a motion to dismiss, the court should accept as
true all well-pleaded allegations and should view the complaint in a light most favorable to the
plaintiff.” Id.

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To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks
omitted). While a complaint “does not need [to allege] detailed factual allegations,” pleadings
that contain mere “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
Stated differently, “where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the
pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2))
B. Preemption
Defendants contend that Plaintiff’s SCHSA claim is preempted by the Electronic
Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510, et seq. and therefore should be
dismissed. (Mem. Supp. Mot. Dismiss 1-3, ECF No. 9-1.) More specifically, Defendants argue
express preemption and submit that, in 18 U.S.C. § 2518(10)(c), “Congress expressed clear
intent that any alleged interception of any ‘electronic communication’ falls under the exclusive
remedy of the [EPCA.]” (Id. at 2, ECF No. 9-1.) Section 2518(10)(c) provides, “[t]he remedies
and sanctions described in this chapter with respect to the interception of electronic

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communications are the only judicial remedies and sanctions for nonconstitutional violations of
this chapter involving such communications.”
As an initial matter, Plaintiff argues that Defendants analyze an improper code section
for preemption because Defendants cite to a provision in Chapter 119 of the ECPA, while
Plaintiff sued under the SCA, which is in Chapter 121 of the ECPA. (Resp. 2, ECF No. 10.)
However, at issue is whether the interception of electronic communications provisions of the
ECPA preempt a claim based on the interception of electronic communications provisions of the
SCHSA. Thus, Plaintiff’s separate, federal claim under the SCA based on stored
communications is irrelevant for this question. Therefore, the court will address Defendants’
preemption argument based on Chapter 119 of the ECPA herein.
Under the Supremacy Clause, “the Laws of the United States . . . shall be the supreme
Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2. “Pre-emption of state law thus occurs through the
direct operation of the Supremacy Clause.” Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625,
630 (2012) (citation and internal quotation marks omitted).
When examining express preemption, courts “begin [their] analysis with the assumption
that the historic police powers of the States [are] not to be superseded by the Federal Act unless
that [is] the clear and manifest purpose of Congress.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77
(2008) (citation and internal quotation marks omitted). “Thus, when the text of a pre-emption
clause is susceptible of more than one plausible reading, courts ordinarily accept the reading
that disfavors pre-emption.” Id. at 77 (citation and internal quotation marks omitted); see

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Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (noting that courts “have long presumed that
Congress does not cavalierly pre-empt state-law causes of action.”).
In every preemption case, “[t]he purpose of Congress is the ultimate touchstone[.]”
Medtronic, 518 U.S. at 485 (citations and internal quotation marks omitted). For express
preemption cases in particular, “the text itself contains the best evidence of Congress’
preemptive intent.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 761-62 (4th Cir. 2018)
(citations and internal quotation marks omitted). Thus, the court’s “task is simply to interpret
the words as they are written.” Id. at 762.
The court finds that § 2518(10)(c) does not expressly preempt state law claims. As it is
written, § 2518(10)(c) does not iterate that the remedies provided in Chapter 119 of the ECPA
are the only judicial remedies available for all interceptions of electronic communications.
Rather, a plain reading of § 2518(10)(c) indicates that there are limited remedies available for a
violation of Chapter 119 of the ECPA itself. This limit on the remedies available under the
ECPA does not result in the preemption of all state law claims also involving the interception of
electronic communications. See Shively v. Carrier IQ, Inc., Nos. C-12-0290 EMC, C-11-5774
EMC, 2012 WL 3026553, at *3, *5 (N.D. Cal. July 24, 2012) (unpublished) (finding that
§ 2518(10)(c) did not expressly preempt state law claims and noting that this limit on remedies
under the ECPA “does not mean that violations of other laws . . . cannot provide for other
remedies and sanctions.”); Leong v. Carrier IQ Inc., Nos. CV 12-01562 GAF (MRWx), CV 1201564 GAF (MRWx), 2012 WL 1463313, at *4 (C.D. Cal. Apr. 27, 2012) (unpublished) (noting
that § 2518(10)(c) “does not even impact the question of preemption, but rather focuses on the
scope of available federal remedies when a violation of the statute has been established.”);

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Sheppard v. Google, No. 4:12-CV-04022, 2012 WL 6086867, at *4 (W.D. Ark. Dec. 6, 2012)
(unpublished) (stating that § 2518(10)(c) was not intended “to take jurisdiction over civil
communications cases away from the states . . . .”).
Congress could have easily and explicitly stated that the remedies in the ECPA are the
exclusive remedies for all interceptions of electronic communications or that the ECPA
preempts state law claims, but it did not do so. Compare 29 U.S.C. § 1144(a) (“[T]he
provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as
they may now or hereafter relate to any employee benefit plan . . . .”). Moreover, a review of
the legislative history indicates that § 2518(10)(c) was included to ensure that interceptions of
electronic communications were not subject to the exclusionary rule absent a Fourth
Amendment violation. See S. Rep. No. 99-541, at 3577 (1986) (“The purpose of
[§ 2518(10)(c)] is to underscore that, as a result of discussions with the Justice Department, the
[ECPA] does not apply the statutory exclusionary rule contained in title III of the Omnibus
Crime Control and Safe Streets Act of 1968 to the interception of electronic communications.”).
Based on the forgoing, the court finds that Congress did not express a clear and manifest
purpose to preempt state law through § 2518(10)(c) and thus, the ECPA does not preempt
Plaintiff’s claim under the SCHSA. Therefore, Plaintiff has stated a claim under the SCHSA
that is plausible on its face, and Defendants’ motion to dismiss is denied.

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It is therefore
ORDERED that Defendants’ motion to dismiss, docket number 9, is denied. It is
further
ORDERED that Plaintiff’s request for attorney’s fees for the time spent responding to
this motion is denied.
IT IS SO ORDERED.

s/Henry M. Herlong, Jr.
Senior United States District Judge
Greenville, South Carolina
July 17, 2020

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