Hylland v. Flaum

Filing 48

OPINION AND ORDER on Pending Motions in 4:16-cv-4168. Signed by U.S. District Judge Roberto A. Lange on 1/16/2018. (JLS)

UNITED STATES DISTRICT COURT

FILED
Jan 16 2018

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

RICHARD HYLLAND,

              CLERK

4:16-CV-04060-RAL

Plaintiff,

vs.

RUSSELL FLAUM,
Defendant.

VIRGINIA FLAUM,

4:16-CV-04168-RAL

Plaintiff,

OPINION AND ORDER
ON PENDING MOTIONS

vs.

TRACI HYLLAND,and RICHARD HYLLAND,
Defendants.

These two consolidated cases arise out of an alleged affair between Russell Flaum and

Traci Hylland. Tract's husband Richard Hylland sued Russell for alienation of affections, which
is 16-CV-4060. Thereafter, Russell's wife Virginia sued the Hyllands asserting a claim for
alienation of affections against Traci and two claims for invasion of privacy against Richard,
which is 16-CV-4168. The Hyllands have now moved for judgment on the pleadings, or,
alternatively, summary judgment on all of Virginia's claims in 16-CV-4168. 16-CV-4168, Doc.

16. Virginia opposed the Hyllands' motion and has filed a motion xmder Rule 56(d) of the
Federal Rules of Civil Procedure asking this Court to deny or postpone ruling on the Hyllands'
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motion. 16-CV-4168, Doc. 25. For the reasons explained below, this Court grants the Hyllands'

motion in part and grants Virginia's motion in part. The parties' motions are otherwise denied.
I.

Facts

The Hyllands are South Dakota residents but maintain a second home in Indian Wells,
California. The Flaums are Illinois residents who also maintain a second home in Indian Wells,

California. Russell and Traci first met at a country club in Indian Wells in late 2014. They

started playing tennis together and this progressed to other activities, including going out to eat,
attending tennis tournaments, and meeting up in Palm Desert or Beverly Hills, Cahfomia.
Apparently at Tract's request, Russell met with Traci and her therapist in early May 2015 in
Palm Desert.

Traci returned to South Dakota on May 17, 2015, but she and Russell continued to
communicate through the mail, intemet, and telephone. Many of these communications were
romantic in nature, with Traci and Russell expressing love for one another and discussing

leaving their spouses. In July 2015, after discovering these communications, Richard mailed a

package of material concerning Russell's relationship with Traci to Virginia in Illinois. The
package, among other things, alleged that Traci and Russell engaged in sexual intercourse in
California and contained what appeared to be emails and text messages Russell sent to Traci. In

September 2015, Richard sent packages containing this same content to Virginia and Russell's
children and the fiance of one ofthese children.

In March 2016, Richard sued Russell in South Dakota state court for alienating the
affections of Traci. Russell removed the case to this Court and moved to dismiss for lack of

personal jurisdiction.

At the hearing on Russell's motion, Richard through counsel

acknowledged that he claims that the alienation of affection tort was committed after Traci

returned to South Dakota in mid-May of 2015 and that Richard is making no claim that any of
the conduct in California supports a cause of action or recovery. California law does not
recognize a claim for alienation of affection. In November 2016, this Court denied Russell's

motion to dismiss, finding that personal jurisdiction over Russell existed becaixse Russell
intentionally directed his conduct at South Dakota, and because the alleged effects of his conduct
were suffered in South Dakota. 16-CV-4060, Doc. 21.

Virginia then filed her suit in this Court, asserting a claim for alienation of affections
against Traci and two claims for invasion of privacy against Richard. 16-CV-4168, Doc. 10.
According to Virginia, both her alienation of affections claim against Traci and Richard's
alienation of affections claim against Russell are based on the same telephone calls, texts, and
emails. Virginia's invasion of privacy claims concern the packages Richard mailed presumably
from South Dakota to Illinois and the materials contained therein.

The Hyllands then moved for judgment on the pleadings or, alternatively, summary
judgment. 16-CV-4168, Doc. 16. Virginia opposed the motion and also filed a motion under
Rule 56(d) asking this Court to either deny or continue the Hyllands' motion for judgment on the

pleadings. 16-CV-4168, Doc. 25. Virginia contended that Russell deleted all of the messages
Traci sent him, and that Virginia therefore needs discovery to acquire the communications Traci
sent to Russell. Thereafter, Virginia filed a motion to compel discovery, asserting that the
Hyllands' responses to Virginia's interrogatories and request for production were deficient. 16CV-4168, Doc. 34. Virginia's motion mainly concerned Traci's communications with Russell,
but also sought some information about Richard's packages sent to people in Illinois. Among
other things, Virginia asked the Hyllands to produce all of the electronic devices they have used
since 2015 so that a forensic expert could search them for communications between Traci and

Russell. The Hyllands produeed an additional 272 pages of documents, but Virginia remained
unsatisfied with the Hyllands' discovery responses. After a hearing on the pending motions, this
Court granted in part Virginia's motion to compel, ordering that Traei produce the iPhone she
used to eommunieate with Russell so that a forensic computer firm could attempt to retrieve

these communications. 16-CV-4168, Doc. 45.^
II.

Standards of Review

When ruling on a motion for judgment on the pleadings under Rule 12(c), courts must
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"accept as true all facts pleaded by the non-moving party and grant all reasonable inferences
from the pleadings in favor of the non-movmg party." Hanev v. Portfolio Recovery Assoes..
LLC. 837 F.Sd 918, 924 (8th Cir. 2016)(quoting United States v. Anv & All Radio Station
Tran.smission Equip.. 207 F.Sd 458, 462 (8th Cir. 2000)). A motion for judgment on the
pleadings under Rule 12(e)"should be granted only if the moving party clearly establishes that
there are no material issues of fact and that it is entitled to judgment as a matter of law." Poms
Media Com, v. Pall Com.. 186 F.Sd 1077,1079(8th Cir. 1999).
Summary judgment is appropriate under Rule 56(e) of the Federal Rules of Civil
Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter oflaw." Celotex Corp. v. Catrett, 477
U.S. S17, S22 (1986). On summary judgment, the facts and inferences drawn from those facts
must be viewed in the light most favorable to the non-moving party. United States v. Diebold.
Inc.. S69 U.S. 654,655(1962)(per curium).

Virginia has filed a second motion to compel on December 15. 16-CV-4168, Doe. 46.
According to the motion, Traci's attomey claims that Traei no longer possesses any of the
devices she used to eommunieate with Russell. The Hyllands jiist recently responded to
Virginia's motion. 16-CV-4168, Doc. 47.

III.

Analysis

The Hyllands argue that Illinois law governs all of Virginia's claims, that her claims for
alienation of affections and invasion of privacy by intrusion upon seclusion fail under Illinois
law, and that the Illinois statute of limitations bars both of Virginia's claims for invasion of
privacy. This Court addresses Virginia's claims in tum.
A.

Alienation of Affections

The parties disagree over which state's law governs Virginia's claim for alienation of
affections. The Hyllands argue that Illinois law controls while Virginia contends that South
Dakota law should apply. When faced with a conflict of law issue in a diversity case, a district
court should first determine whether the relevant laws actually conflict and then, if a conflict

exists, apply the choice of law rules of the forum state. Prudential Ins. Co. of Am. v Kamrath.
475 F.3d 920, 924 (8th Cir. 2007). Illinois law conflicts with South Dakota law on the tort of

,alienation of affections because while South Dakota allows recovery of pimitive damages as well
as damages for mental suffering and loss of consortium, Illinois does not. Jones v. Swanson.

341 F.3d 723, 736-37 (8th Cir. 2003)(discussing punitive damages in alienation of affections
claim in South Dakota); Kaplan v. Jewett. 229 F. Supp. 3d 731, 734—36 (N.D. 111. 2017)(noting
that under Illinois law, a plaintiff in an alienation of affections case is limited to "actual

damages" and cannot recover punitive damages or damages for mental suffering or loss of
consortium); Morev v. Keller. 85 N.W.2d 57, 59 (S.D. 1957)(explaining that a plaintiff in an
alienation of affections case may recover for loss of consortium and mental anguish); see also
Pescatore v. Pan Am. World Airwavs. Inc.. 97 F.3d 1, 14(2d Cir. 1996)(finding a conflict where
one state permitted recovery for loss of society in a wrongful death action while the other state

^Although Illinois repealed its alienation of affections statutes in 2016, this does not affect claims
like Virginia's that accrued before 2016. 740 111. Comp. Stat. 5/7.1
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did not). Given this conflict, this Court must apply South Dakota's choice-of-law rules to
determine which state's law govems Virginia's alienation of affections claim. Pmdential Ins.
Co., 475 F.3d at 924.

South Dakota follows the "most significant relationship" test set forth in the Restatement
(Second)of Conflict of Laws to resolve choice oflaw questions. Burhenn v. Dennis Supplv Co..
685 N.W.2d 778, 784 (S.D. 2004). Three sections of the Restatement are relevant to the most
significant relationship test in this case.

First, § 6 ofthe Restatement sets forth the guiding principles for the Restatement's choice
oflaw approach:

(1) A court, subject to constitutional restrictions, will follow a
statutory directive ofits own state on choice oflaw.
(2) When there is no such directive, the factors relevant to the
choice ofthe applicable rule oflaw include:
(a)the needs ofthe interstate and intemational systems,
(b)the relevant policies ofthe forum,
(c) the relevant polices of other interested states and the
relative interests of those states in the determination of the

particular issue,

(d)the protection ofjustified expectations,
(e)the basic polices underlying the particular field oflaw,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to
be applied.
Restatement(Second)of Conflict of Laws § 6(Am.Law Inst. 1971).
Next, § 145 describes the general fi-amework of the most significant relationship test for
tort cases. It reads:

(1) The rights and liabilities of the parties with respect to an issue
in tort are determined by the local law of the state which, with
respect to that issue, has the most significant relationship to the
occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of
§ 6 to determine the law applicable to an issue include:
(a)the place where the injury occurred.

(b)the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of
incorporation and place of business ofthe parties, and
(d) the place where the relationship, if any, between the
parties is centered.
These contacts are to he evaluated according to their relative
importance with respect to the particular issue.

Id. § 145. Because § 145 "states a principle applicable to all torts and to all issues in tort," it is
necessarily "cast in terms of great generality." Id cmt. a.

Third, § 154 provides a more refined version of § 145 for cases involving alienation of
affections. Id § 145 cmt. a. (explaining that § 154 is meant to address a particular tort with
"greater precision"). Section 154 states;

The local law of the state where the conduct complained of
principally occiirred determines the liability of one who interferes
with a marriage relationship, unless, with respect to the particular
issue, some other state has a more significant relationship under
the principles stated in § 6 to the occurrence and the parties, in
which event the local law ofthe other state will be applied.
Id at §154.

In this case, deciding where the conduct complained of principally occurred will be a

fact-intensive inquiry. The conduct Virginia complains of here, of course, is Traci alienatmg
Russell's affections. Virginia asserted in her brief and confirmed at the hearing that the basis of

her claim is the telephone calls, text messages, and emails Traci and Russell exchanged while
Traci was in South Dakota. Although Traci claims that the vast majority of her contact with
Russell occurred in California, this does not necessarily mean that California is the place where

Tract's alleged alienation of Russell's affections principally occurred. Rather, this Court must

also consider the type of conduct Traci engaged in while in Califomia and South Dakota. In
Jones V. Swanson. No. 00-4112-ICES (D.S.D. Sept. 12, 2001), for instance, this Court held that

the alienation of a spouse's affections principally occurred in South Dakota because although the

defendant spent more days with the plaintiffs wife in other jurisdictions, the contact in South
Dakota, which included sexual relations in the plaintiffs residence and a favorable meeting with

a marriage counselor, was significant in alienating the wife's affections. Id Doc. 78 at 6.
Similarly, the Mississippi Court of Appeals rejected a plaintiffs argument that Mississippi law
should apply simply because the sexual encounters between the defendant and the plaintiffs
wife occurred there.

Hancock v. Watson. 962 So. 2d 627, 630 (Miss. Ct. App. 2007).

Determining where the injury or the conduct causing the injury occurred, the court explained,

"would require an in-depth inquiry into the scope of the relationship between [the wife and the
defendant]—including, for example, the manner and fi-equency and content of their
communications outside oftheir face-to-face meetings." Id at 630.

As the record stands now, there are too many questions of fact about Tract's conduct for
this Court to determine where the conduct complained of principally occurred. True, Russell

filed an affidavit in 16-CV-4060 stating that while he and Traci were in California they played
tennis together, attended two termis tournaments, went to brunch three times, met for an evening
in Beverly Hills, met one morning in Pahn Desert, and met once with Tract's therapist. 16-CV4060, Doc. 10-1. But the record does not definitively establish what Traci and Russell discussed

when they were together, whether their relationship in California was sexual, or whether Traci

engaged in any other conduct in California that alienated Russell's affections. Indeed, Tract's
husband in his lawsuit has taken the position that the alleged alienation of Tract's affections by
Russell occurred not in California but after Traci returned to South Dakota. There is uncertainty

about the content and firequency ofthe text messages and emails Traci sent Russell while she was
in South Dakota and California. Although Traci has produced screenshots of some of the texts
and emails, several of these messages are undated while others are too blurry to read. Discovery

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may reveal additional messages from Traci and perhaps allow the parties to determine where
Traci was when she was communicating with Russell.

There is also a question of fact concerning where Virginia's alleged injury occurred.
Under § 154, the

state where the injury occurs may be said with approximately equal
persuasiveness to be either (1) the state of matrimonial domicil,
which is the state that has the closest relationship to, and the
greatest interest in, the spouses, or (2) the state where the
defendant's conduct had its greatest impact upon the spouse with
whom he dealt.

Restatement (Second) of Conflict of Laws § 154 cmt. c. At the hearing, the parties disagreed
about whether the Flaums were in California or Illinois when Traci was text messaging,

emailing, and calling Russell from South Dakota. Virginia claimed that she and Russell were in
California the entire time while Traci claimed that Russell had been in Illinois. It would he

premature to decide the place of injury without knowing more about Tract's conduct and where
Russell was when he received Tract's communications from South Dakota.

Notwithstanding the questions of fact about the place of injury and the place where the
conduct complained of principally occurred, Traci argues that Illinois law should apply because
that is where the Flaums' marriage is domiciled. In Tract's view, the fact that her contact with
Russell occurred in multiple states makes the Flaums' marital domicile the "central factor" in the
choice of law analysis. Comment d of § 154 addresses the significance of the place where the
conduct occurred when the defendant acted in more than one state:

On occasion, defendant's conduct will occur in two or more states,
such as when his travels take him across state lines during the

course of his campaign to alienate the affections of plaintiffs wife.
Here, the location of the defendant's conduct is not as important a
contact as it would have been if all of the conduct had occurred in

a single state. Nevertheless, the principal location of the
defendant's conduct is the most important of all contacts in

situations where this eonduet ean be assigned a principal location.
The relative importance of this contact diminishes proportionately
with any increase in that part of the eonduet that occurred in other
states. With any decrease in the importance of the principal place
of the defendant's conduct, there is a corresponding increase in the
importance of such other contacts, as the matrimonial domicil of

the spouses and the domicil ofthe parties involved.
Situations may arise where the defendant acts in one or more states
and where these acts have their impact upon the spouse involved in
still another state. A possible example would be a case where the
defendant alienates the affections of the plaiptifPs wife by means
of letters written and mailed in state X to the wife in state Y. In

such situations, the location, or principal location, of the
defendant's conduct plays a less important role in the selection of
the applicable law.
Id. cmt. d. Similarly, comment c of § 154 addresses the significance of the location of the injury
when the state of matrimonial domicile is different than the state where the defendant's conduct

had its greatest impact:
In situations where the state of matrimonial domicil is not likewise

the state where the defendant's eonduet had its greatest impact,

there is no one clearly demonstrable place of injury and this
contact does not play as important a role for choiee-of-law
purposes as in the ease of certain other torts.
Id. cmt. c.

Neither the Restatement nor the cases Traei cites establish that the Flaums' marital

domicile is so important that Illinois law will apply regardless of what the evidence ultimately
shows about Traci's eonduet and the place where the injury occurred. This ease is still in the
early stages of discovery. Indeed, the only party to be deposed is the Flaums' son, and this Court
fairly recently ordered Traei to produce her phone so that a forensic computer specialist could
attempt to recover the messages she sent Russell.

The current record is not sufficiently

developed to permit a proper choice of law analysis. Traci's motion for judgment on the

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pleadings or summary judgment on Virginia's alienation of affections claim is denied without
prejudice to refiling a summary judgment motion at a later time.
B.

Invasion of Privacy Claims

Richard argues that Illinois law governs Virginia's claims for invasion of privacy, that

these claims are barred by Illinois' one-year statute of limitations for invasion of privacy claims,
and that Count III, Virginia's claim for intrusion upon seclusion, fails as a matter of law.
Virginia agrees that Illinois substantive law governs her invasion of privacy claims, but argues
that the three-year statute of limitations in South Dakota should govern these claims. This Court
addresses the statute of limitations issue before turning to whether Count III fails as a matter of
law.

Because this is a diversity case. South Dakota's choice oflaw rules govern which state's

statute of limitations applies. Pinnacle Pizza Co. v. Little Caesar Enters.. 598 F.3d 970, 975 (8th

Cir. 2010). Virginia argues that South Dakota's statute of limitations applies because statutes of
hmitations are considered "procedural" under South Dakota law. In the choice of law context,
courts have traditionally drawn a distinction between laws that are "procedural" and laws that are
"substantive." Restatement (Second) of Conflict of Laws §122 cmt. b. A forum will apply its

own procedural laws even if the law of another state governs the substantive issues in the ease.
Id § 122. In 2008, this Court held that South Dakota "regards statutes of limitations as
procedural," and that the South Dakota statute oflimitations thus applied to a contract claim even
though the claim itself was govemed by Michigan law. Pinnacle Pizza Co. v. Little Caesar

Enters.. 560 F. Supp. 2d 786, 794-95 (D.S.D. 2008) (citing In re Estate of Lingscheit. 387
N.W.2d 738 (S.D. 1986), superseded bv statute on other grounds as recognized in In re Estate of
Geier. 809 N.W.2d 355, 357-58(S.D. 2012)). The Eighth Circuit affirmed this Court's decision.

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agreeing that South Dakota "regards statutes of limitations as proeedural." Pinnacle Pizza Co. v.
Little Caesar Enters.. 598 F.3d 970, 975 (8th Cir. 2010) (eiting Lyons v. Lederle Labs. 440
N.W.2d 769, 770 (S.D. 1989)). Just this year, this Court rejected an argument that it had to
engage in a ehoiee of law analysis to determine which state's statute of limitations applied to the
plaintiffs' tort claims. Anderson v. Wells Fargo Bank. N.A.. CIV. 17-5010-JLV, 2017 WL
3034260, at *14 (D.S.D. July 17, 2017). Relying on the Eighth Cireuit's deeision in Pinnacle

Pi2za. this Court held that South Dakota's statute of limitations applied to the elaims. Id But
see. Delonga v. Dioeese of Sioux Falls. 329 F. Supp. 2d 1092, 1099-100(D.S.D. 2004)(relying
on the most significant relationship test to conclude that South Dakota law, ineluding the South
Dakota statute oflimitations, applied in a tort ease).

Riehard argues that because South Dakota follows the Restatement (Second) Conflict of
Laws on other choice of law questions, it would also follow the revised version of § 142, the
Restatement's approach to statutes oflimitations. There is some support for Richard's argument.
See Washbum v. Soper. 319 F.3d 338 (8th Cir. 2003). In Washbum. for example, the Eighth
Circuit predicted that Iowa would apply the revised version of § 142 even though Iowa had
historically classified statutes of limitations as procedural. Washbum. 319 F.3d at 341^2. The
Eighth Circuit found that Iowa's strong commitment to the Restatement provided a "clear and
persuasive indication" that Iowa would change its approach to conflicts involving statutes of
limitations. Id at 342. But the Eighth Circuit has not always agreed that a state would apply the
Restatement to statutes of limitations simply because the state applies the Restatement in other
contexts. For instance, the Nebraska Supreme Court generally follows the Restatement on
choice of law issues, F.D.l.C. v. Nordbrock. 102 F.3d 335, 338 (8th Cir. 1996), but it has also

held that statutes of limitations are procedural, Steen v. Murray. 770 F.3d 698, 705 (8th Cir.

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2014). Despite Nebraska's relianee on the Restatement in other eontexts, the Eighth Cireuit in

Steen rejeeted an argument that Nebraska would apply the Restatement to statutes of limitations.
770 F.3d at 705.

Riehard has not eited any eases from the Supreme Court of South Dakota suggesting that

this Court and the Eighth Circuit were wrong in the Pinnacle Pizza cases in holding that South
Dakota considers statutes of limitations to be procedural. And while the South Dakota case law
on this issue could be more recent and explicit, it supports the conclusion that statutes of

limitations are procedural under South Dakota law. See Lyons. 440 N.W.2d at 770 (explaining,
for purposes of deciding whether a statute should be applied retroactively, that "statutes of
limitations are remedial, not substantive"); Estate of Lingseheit, 387 N.W.2d at 740-41 (holding

that although Oklahoma law governed the substantive issues in a wife's petition for an elective
share of her husband's estate. South Dakota law governed the time for filing such a petition);

Davison v. Sasse. 31 N.W.2d 758, 758(S.D. 1948)("It is well established by the decision of this
court that a statute which merely limits the time within which action may be brought upon a

contract affects the remedy only, and not the right, and can have no extraterritorial effect, and

will not prevent action upon the contract thereafter in the forum of some other state unless a
statute of the forum so provides.")(citation omitted). Given this South Dakota case law and the
Eighth Circuit's decision in Pinnacle Pizza, this Court will apply South Dakota's statute of

limitations to Virginia's invasion of privacy claims.^ Virginia's claims for invasion of privacy
are timely under South Dakota's three-year statute of limitations. See Roth v. Famer-Bocken

^Even if this Court disagreed with the Eighth Circuit's decision in Pirmacle Pizza, it appears that
this decision would still be binding. See AIG Centennial Ins. Co. v. Fralev-Landers. 450 F.3d

761, 767-68 (8th Cir. 2006)("Although our cireuit has never specifically determined the binding
effect of a state law determination by a prior panel, other circuits defer to prior panel decisions

absent a subsequent state court decision or statutory amendment that makes the prior federal
opinion clearly wrong.")(citation and internal alterations omitted).
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Co.. 667 N.W.2d 651, 659 (S.D. 2003)(explaining that the statute of limitations on a elaim of
invasion of privaey is three years).

Riehard also argues that Virginia's elaim for intrusion upon seelusion fails as a matter of
law. In Illinois, the tort of invasion of privaey by intrusion upon seelusion has four elements:

"(1) the defendant committed an unauthorized intrusion or prying into the plaintiffs seclusion;
(2) the intrusion would be highly offensive or objectionable to a reasonable person; (3) the
matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and suffering."
Busse V. Motorola. Inc.. 813 N.E.2d 1013, 1017 (111. App. Ct. 2004).

A elaim for intrusion upon seelusion can only survive if the plaintiff had a reasonable

expectation of privaey in the matter intruded upon. Aeosta v. Scott Labor LLC. 377 F. Supp. 2d
647, 650-51 (N.D. 111. 2005)(holding that a elaim for intrusion upon seelusion under Illinois law

failed because the plaintiff did not have a reasonable expectation of privacy in the area intruded

upon); Jaeobson v. CBS Broadcasting. Inc.. 19 N.E.3d 1165, 1181 (El. App. Ct. 2014)(affirniing
grant of summary judgment on an intrusion upon seelusion elaim because the plaintiff did not
have a legitimate expectation of privacy or seelusion in the place intruded upon); see also
Fletcher v. Price Chonner Foods of Ttumann. Inc.. 220 F.3d 871, 877 (8th Cir. 2000) ("A

legitimate expectation of privaey is the touchstone of the tort of intrusion upon seclusion.").
Whether a plaintiff has a reasonable expectation of privaey depends on the circumstances,
including the plaintiff's conduct, the identity of the intruder, and the marmer of the intrusion.
See Aeosta. 377 F. Supp. 2d at 650 ("Persons cannot reasonably maintain an expectation of

privaey in that which they display openly.") (citation and internal alteration omitted); Danai v.
Canal Square Assocs.. 862 A.2d 395, 401-03 (D.C. 2004)(holding that a plaintiff did not have a
reasonable expectation of privaey in a letter she threw in the trash); Sanders v. Am. Broad. Co..

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978 P.2d 61, 73 (Cal. 1999)("Privacy for purposes of the intrusion tort must be evaluated with

respect to the identity ofthe alleged intruder and the nature ofthe intrusion.").
Here, Virginia alleges that Richard intruded upon her privacy or seclusion by "obtaining
highly sensitive information regarding Virginia's marriage and Traci's alleged sexual
relationship with Russell." 16-CV-4168, Doc. 23 at 20; see also 16-CV-4168, Doc. 10 at ^28

("Richard wrongfully intruded and invaded Virginia's right to privacy by improperly and
unlawfully obtaining possession of and/or misappropriating highly confidential information,
emails, letters and text messages regarding Virginia and Russell and their marriage, without their

consent."). The "highly sensitive information" forming the basis of Virginia's claim consists of
the emails and text messages Russell sent Traci and that Richard then included, along with his
own editorials, in the packages he sent the Flaums and others in Illinois. 16-CV-4168, Doc. 18

at^t 17-19; Doc. 24 at^ 17-19; Doc. 10 atTHf 10-11; 16-CV-4060, Docs. 19-1,19-2. Russell's
emails and text messages to Traci include statements that he loved her and wanted to be with her,
poems about being intimate with her, and discussions about his relationship with Virginia. Civ.
16-4060, Docs. 19-1, 19-2. Virginia has failed to plead any facts or offer any evidence

suggesting that she had a reasonable expectation that Russell's emails and text messages'' sent to

''in addition to emails Russell sent Traci, the packages Richard compiled included one email
Virginia sent to Traci and Traci's daughter. 16-CV-4168, Doc. 18 at Tflf 17-19; Doc. 24 at
inf 17-19; Doc. 10 at TjTf 10-11; 16-CV-4060, Doc. 19-1 at 40. Virginia did not have a
reasonable expectation of privacy in this email. Her email was in response to an email from
Traci's daughter explaining that "we" know everything about Russell's relationship with Traci
and have "volumes of emails and messages that your husband has sent to our mother." 16-CV4060, Doc. 38-11 at 9. Virginia replied that she understood the pain Traci's daughter was

experiencing, but that Russell had never hidden anything from her and she knew "all about the
emails and texts." 16-CV-4060, Doc. 38-11 at 10. Virginia could hardly have expected that this
email to Traci and Traci's daughter would remain private from,Richard. The email exchange
between Virginia and Traci's daughter is also further evidence that Virginia did not have a

reasonable expectation of privacy in the emails Russell sent Traci. It was late April 2015 when
Traci's daughter emailed Virginia that they knew about, Russell and Traci's affair and had
15

Trad would remain private from Richard, especially given that Russell was sending those

messages to Richard's wife Traci.^ Nor has Virginia cited any eases holding that a third party
like herself has a claim for intrusion upon seclusion against a defendant like Richard for reading

messages sent to his spouse eonceming the spouse's affair. Virginia certainly has no reasonable
expectation of privacy concerning Richard's angry editorials included in the packages.
Virginia has also failed to establish that Richard committed an unauthorized intrusion
into her seclusion. Indeed, other than eonelusory allegations in her complaint that Richard

"wrongfully" obtained the emails and text messages Russell sent to Trad, Doc. 10 at^ 10, 28,

Virginia has not offered any evidence or pleaded any facts explaining how Richard came to view
the texts and emails. The mere fact that Richard may have discovered the emails while snooping

through Tract's phone does not establish that he engaged in an unauthorized intrusion into
Virginia's seclusion. See In re Trans Union Corp. Privaev Litig.. 326 F. Supp. 2d 893, 901-02
(N.D. m. 2004) (holding that the defendant did not intrude into the plaintiffs' seclusion by
accessing its own lawfully obtained files which contained private information about the
plaintiffs); Miller v. Motorola. Inc., 560 N.E.2d 900, 904 (111. App. Ct. 1990)(concluding that
the defendant did not commit an unauthorized intrusion into the seclusion of the plaintiff by

disclosing medical information that the plaintiff had voluntarily provided to the defendant).
Even if Virginia had estabhshed that Richard intruded into her seclusion, no reasonable
person would find this intrusion "highly offensive." "The question of what kinds of conduct will
be regarded as a 'highly offensive' intrusion is largely a matter of social conventions and
"volumes" of messages that Russell sent Traei. Virginia's Complaint alleges that Richard
intruded on her seclusion in July 2015 by obtaining the emails. A reasonable person would not
expect that the emails and text messages would remain private from Richard when his daughter
knew ofthem.

^Virginia's Rule 56(d) motion does not contend that she needs discovery to resist Richard's
motion for summaryjudgment on the merits of her intrusion upon seclusion claim.
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expectations." J. Thomas McCarthy, Rights of Publicity and Privacy § 5:95 (1993). Courts will
consider "the degree of intrusion, the context, conduct and circumstances surrounding the
intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and

the expectations of those whose privacy is invaded." Bogie v. Rosenberg. 705 F.3d 603, 612
(7th Cir. 2013)(citation omitted). Richard did not hack into Russell's email accounts or snoop
through his electronic devices to view the messages Russell sent Traci, let alone private

messages between Russell and Virginia. Instead, Richard apparently viewed the messages on
Tract's phone or iPad. Richard had a grave interest in these texts and emails not because they
contained information about Virginia's marriage, but because they concerned his wife Tract's

alleged affair with Russell and the possibility that she was leaving him. A reasonable person
would not find that Richard committed a highly offensive intrusion into Virginia's seclusion by

reading text messages and emails tha!t Russell sent to Tract's electronic devices concerning
Tract's alleged affair with Russell.

Virginia also asserts that Richard intruded upon her seclusion when he sent packages
containing the emails and text messages and his own editorials to the Flaums' children and
others in Illinois. However, the basis for the tort of intrusion upon seclusion is "some type of

highly offensive prjdng into the physical boundaries or affairs of another person" rather than the
publication of private facts. Lovgren v. Citizens First Nat'l Bank of Princeton. 534 N.E.2d 987,
989 (HI. 1989). Thus, a plaintiff cannot state a claim for intrusion upon seclusion if his injiiry

stems from publication rather than the intrusion. Thomas v. Pearl. 998 F.2d 447, 452 (7th Cir.
1993); Lovgren. 534 N.W.2d at 989. Any injury caused by the.packages flowed from Richard's
publication of the emails and text messages rather his prying into Virginia's affairs. Virginia's

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theory that Richard intruded upon her seclusion by sending the packages thus fails as a matter of
law.

C.

Virginia's Rule 56(d) Motion

Virginia's Rule 56(d) motion asks this Court to deny or defer ruling on much of the

Hyllands' motion for summary judgment so that she can conduct discovery. Under Rule 56(d), a
district court may deny a summary judgment motion or allow time for discovery "[i]f a
nonmovant shows hy affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition." Fed. R. Civ. P. 56(d). "As a general rule, summary judgment

is proper only after the nonmovant has had adequate time for discovery." Toben v. Bridgestone

Retail Operations. LLC. 751 F.3d 888, 894(8th Cir. 2014)(citation and internal quotation marks
omitted). The purpose of Rule 56(d) is "to prevent a party from being unfairly thrown out of
court by a premature motion for summaryjudgment." Id (citation omitted).

A party alleging that additional discovery is necessary under Rule 56(d) must show "(1)
that they have set forth in affidavit form the specific facts that they hope to elicit from further
discovery, (2) that the facts sought exist, and (3) that these sought-after facts are essential to
resist the summary judgment motion." Toben, 751 F.3d at 895 (citation and internal quotation
marks omitted). Virginia filed an affidavit in support of her Rule 56(d) motion explaining that
without discovery from Traei and Richard, she did not have access to the emails and text
messages Traei sent Russell. 16-CV-4168, Doc. 26 at 6. Virginia contends that she needs
these communications to show that Traei alienated Russell's affections while she was in South

Dakota. Traei argues that her communications with Russell are not "essential" because Illinois
law will apply regardless ofthe content of these communications. As explained above, however,
the current record does not establish that Illinois law applies to Virginia's alienation of affections

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claim. Discovery concerning Traci's communications to Russell is essential to resisting the
motion for summary judgment because such discovery may allow Virginia to demonstrate that
South Dakota law applies to her alienation of affections claim. This Court thus grants Virginia's
Rule 56(d) motion with respect to the Hyllands' motion for summary judgment on Virginia's
alienation of affections claim.
IV.

Conclusion

For the reasons stated above,it is hereby

ORDERED that Defendants' Motion for Judgment on the Pleadings, or Alternatively,

Motion for Sxunmary Judgment, 16-CV-4168, Doc. 16, is granted as to Count III, Virginia's
claim for invasion of privacy by intrusion upon seclusion. It is further
ORDERED that Plaintiff's Motion to Deny or, in the Alternative, Continue Defendants'

Motion, 16-CV-4168, Doc. 25, is panted with respect to Virginia's claim for alienation of
affections. PlaintifFs motion is otherwise denied.

DATED this

day ofJanuary, 2018.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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