Lopez et al v. Pena et al

Filing 37

MEMORANDUM OPINION AND ORDER - Pena's 31 Motion to Dismiss on limitations grounds is denied. On qualified immunity, Pena's motion is granted subject to Cruz Lopez filing his amended complaint, with factual detail and particularity suppo rt his Section 2701(a) and/or Section 2703 claims against Pena, within 21 days of this order. If Cruz Lopez fails to so file, dismissal of Count II will become final, with prejudice and Pena will be dismissed as a party. This order does not and is not to be construed to prevent Pena from urging qualified immunity as a defense to any amended complaint. (Ordered by Judge Mary Lou Robinson on 3/5/2013) (plh)

IN THE UNITED STATES DISTRICT COURT
F'OR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION
ROLANDO CRUZ LOPEZ and
JAMES FOXE,
Plaintiffs,
V.

No. 2-12-CV-165-J

ALEJANDRO PENA, individually;
UNITED STATES CUSTOMS AND
BORDER PROTECTION; UNITED
STATES DEPARTMENT OF
HOMELAND SECURITY
Defendants,

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Alejandro Pena's Motion to Dismiss, filed December 31,

2012. Officer Pena seeks to dismiss Count II of the complaint, wherein pro se Plaintiff Rolando
Cruz Lopez claims that Pena, in his individual capacity, violated 18 U.S.C. $ 2701(a) of the
Stored Communications Act by accessing certain emails in Cnn Lopez's Yahoo! account. Pena
advances three reasons to dismiss Count

II: (l) Cruz Lopez fails to

state a claim; (2) Pena is

entitled to qualified immunity; and (3) a two-year statute of limitations bars Count II.

Background
Plaintiffs filed their six-count complaint on August 7,2012. Each count stems from an
August 8-9,2009 incident at the Dallas/Fort Worth International Airport during which Customs
and Border Protection (CBP) officers-including Pena-detained Cruz Lopez en route to visit

his friend, Plaintiff Foxe, in Amarillo. During secondary inspection, Pena discovered in Cruz
Lopez's wallet the usernames and passwords to his "on-line bank account and personal email
accounts." Using this login information, Pena allegedly accessed Cruz Lopez's Yahoo! email
account and online bank account, viewing and printing email messages sent within the previous

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three months and also printing a copy

of-and exhibiting to Cruz Lopez-a

deposited check

(which CruzLopez saw but did not recognize as his check until "later"). Using this and perhaps
other information found while rummaging through those accounts, Pena executed an expedited

removal order against Cruz Lopez for working in the United States as Foxe's employee in
violation of visa restrictions.
Cruz Lopez claims that in January 2012, in response to a FOIA request made to U.S.
Citizenship and Immigration Services, he discovered (for the first time, he says) that Pena had
accessed his Yahoo! account and printed various emails.

Cruz Lopez claims

in Count Il-the only count

remaining against Pena-that Pena

violated the Stored Communications Act by accessing emails "between Plaintiff CruzLopez and
an acquaintance sent through CruzLopez's Yahoo email account." He seeks actual and punitive
damages, fees and costs.

Lesal Standard

A

qualified immunity-based motion to dismiss is generally evaluated under the Rule

12(bX6) rubric. See Collins v. Ainsworth, 382F.3d 529,536 (5th Cir.2004); Baker v. Putnal, 75

F.3d 190, 197 (5th Cir. 1996); Richard v. Capps,2007 WL 2428928, at *2 n.6 Of.D. Tex. Aug.

28,2007). Pena states that "Lopez's allegations fail to state a claim . . . for the same reasons fhe
claimsl qualified immunity."

In determining motions for failure to state a claim, the Court first identifies allegations
not entitled to the assumption of truth due to their lack of factual support, then assumes the
veracity of the remaining non-fanciful alleged facts. Ashcroft v. Iqbal,556 U.S. 662,664 (2009).

The Court then denies the motion to dismiss

Page 2

if the complaint "containfs] suffrcient factual

of 10

matter, accepted as true, to 'state a claim to relief that is plausible on its face.'o' Iqbal,556 U.S.

at678 (quoting Twombly,550 U.S. at570).
When an official is sued in his individual capacity, however, a modification to the basic

Rule 12(b)(6) standard applies. The official's qualified immunity defense fails only

if

the

complaint, with "factual detail and particularity," states facts plausibly alleging that the official,
engaging in objectively unreasonable conduct, (1) violated a constitutional or statutory right that
(2) was at the time, and still is, clearly established. Anderson v. Pasadena Indep. Sch. Dist., 184

F,3d439,443 (5th Cir. 1999) (citing Jaclcsonv. Widnall,99 F.3d 710,715-16 (5th Cir. 1996));
see

Morgan v. Swanson, 659 F.3d 359, 37I-72 (5th Cir.

20II), If CnnLopez

first step in this analysis, in the light most favorable to him, then

oothe

cannot satisfy the

facts that [he] has

alleged . . . ldo not] make out a violation" under Rule 12(b)(6). Pearson v. Callahan, 553 U.S.

223,232 (2009); see Morgan,659 F.3d at 384.
As with qualified immunity, the Court evaluates the statute of limitations defense under
12(bX6). See Jones v. Alcoa, lnc.,339 F.3d 359,366 (5th Cir.2003) ("A statute of limitations
may support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs pleadings that
the action is barred and the pleadings fail to raise some basis for tolling or the like.").

Limitations
The claims against Pena in Count

II

are governed by a two-year statute of limitations:

"A

civil action under this section may not be commenced later than two years after the date upon
which the claimant first discovered or had a reasonable opportunity to discover the violation."
18 U.S.C.

2707(t). CruzLopez filed Count II against Pena in August 2012. Pena argues that the

claim against him is therefore time-barred because violation of the SCA,

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if

any, occurred during

his August 2009 inspection of CruzLopez. CruzLopez claims that the discovery rule applies to

toll the statute of limitations until receiving the January 2012 FOIA disclosure.

A plausible interpretation of the complaint's facts, in the light most favorable to Cnn
Lopez, is that he did not have a reasonable opportunity to discover SCA violations until January

2012. Cruz Lopez knew in August 2009 that (1) CBP officers had bank and email login
information from his wallet and that (2) Pena had shown him a document (identified at some

point as a copy of a check deposited in Cruz Lopez's bank account) which Pena said proved
CruzLopez's employment in the United States. It is plausible, however, that CruzLopez would
not reasonably have concluded from these facts that someone had accessed emails on his Yahoo!

account. Therefore. dismissal on limitations is DENIED.

Oualified Immunity

With Fourth Amendment protection of online networks uncertain, Congress passed
Stored Communications Act

in

1986 to offer "network account holders a range

of

the

statutory

privacy rights against access to stored account information held by network service providers."

Orin S. Kerc, A User's Guide to the Stored Communications Act, and A Legislator's Guide to
Amending
$ 2701(a)

lt,72

Geo. WesH. L. REV. 1208,

I2l2 (2004).

Count

II is based on 18 U.S.C.

of the SCA, which protects electronic communications while in electronic storage and

is made civilly actionable by

$

2707. Cruz Lopez, in

response

to Pena's Motion to Dismiss,

argues that Pena also violated $ 2703, which limits governmental entities seeking stored
communications from service providers. Although $ 2707's broad wording might make 5 2703
violations actionable, see, e.g., Steve Jaclrson Games, Inc. v. U.S. Secret Serv.,8l6 F. Supp. 432,
443 (W.D. Tex. 1993) aff'd,36 F.3d 457 (5th Cir. 1994), CruzLopez's complaint does not allege

Page 4

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a 5 2703

claim. Consequently, the Court only considers whether the $ 270I(a) claim is sufficient

to overcome Pena's qualified immunity defense.

Testing qualified immunity, the Court asks whether the complaint contains sufficient
facts to plausibly show that, by objectively unreasonable conduct, (1) Pena violated a right in
$ 2701(a) that

(2) was clearly established in August 2009 and still

is.

See

Morgan,659 F.3d at

371-73; KiWs v. Caillier, 197 F.3d 765,768 (1999); Bazan ex rel. Bazqn v. Hidalgo County,
246F.3d 481,490 (5th Cir. 2001).
Section 2701(a) creates a right against anyone who "(1) intentionally accesses without

authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or
prevents authorized access to a wire or electronic communication while it is in electronic storage

in such system." l8 U.S.C. $ 2701(a).

The complaint suffrciently alleges that Pena intentionally and without authorization
obtained Cruz Lopez's electronic communications (emails). Additionally,

it sufficiently

alleges

that Yahoo! is a facility through which an electronic communication service (ECS) is provided
(apparently it is also a facility through which a remote computing service (RCS) is provided). 18

U.S.C. $2510(15),

27ll(l);

see Garcia

v. City of Laredo,702 F.3d 788 (5th Cir.

2012)

(discussing meaning of ECS); United States v. Weaver,636 F. Supp. 2d 769,770-72 (C.D.

n.

2009) (noting that Microsoft, through Hotmail, acted as both ECS and RCS provider).

The complaint, however, fails to adequately allege facts showing that the emails were in

"electronic storage." Without this element-and notwithstanding the liberality given pro
pleadings, Haines v. Kerner,404 U.S. 519,520 (1972)-the emails do not

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of 10

fit within

se

$ 2701(a).

See Johnson v.

Atkins,999 F.2d 99, 100 (5th Cir. 1993) ("[e]ven a liberally construedpro se . . .

complaint . . . must set forth facts giving rise to a claim on which relief can be granted.").

"Electronic storage" is defined as "(A) any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic transmission thereof; and (B) any storage

of such communication by an electronic

communication service

for

purposes

of

backup

protection of such communication." 18 U.S.C. $ 2510(17). Pena argues that the emails he
allegedly accessed were not in electronic storage because they had already been "transmitted"
(whether Cn:zLopez was sender or addressee is unclear) and that these post-transmission emails
were "simply still residing in Lopez's Yahoo! account."

In response, Cruz Lopez reasons that the emails were in temporary electronic

storage

incident to transmission to the same extent as those protected in Steve Jaclcson Gemes, Inc.

v.

United States Secret Service,36 F.3d 457,462 (5th Cir. 1994). Crucially, however, the emails
there had not yet been opened when accessed by the Secret Service. Steve Jackson, S16 F. Supp.
at 44243 , aff'd, 36

F

.3d

457 ,

462 (sth Cir . 1994) .

Contrary to Pena's argument that transmission ends when an email enters the addressee's

email account, whether an email has been retrieved or opened by the addressee (not whether it
has made its way to an inbox) is the widely-recognized determinant of when

it is no longer in

"intermediate storage . . . incidental to the electronic transmission thereof." See

Id.;

United

Statesv.Councilman,4I8F.3d67,8I (lstCir.2005); Renev.G.F.Fishers, Inc.,817F.Supp.
2d 1090, 1095-97 (S.D. Ind.

20ll); Crispin

v. Christian Audigier, Inc.,

(C.D. Cal. 2010); Weaver,636 F. Supp. 2d at 771 (C.D.

Ill.

Jl7 F. Supp. 2d965,987

2009);

In re DoubleClick

Inc.

Privacy Litig., 154 F. Supp. 2d 497,512 (S.D.N.Y. 2001). Once opened by the addressee,

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transmission is complete and any copies held by the ECS provider are no longer stored incident
to transmission.

Cruz Lopez asks the Court in his response to infer that Pena "may have" retrieved
unopened emails from the Yahoo! account or, possibly, from more than one email account.

However, the complaint provides no factual detail or particularity to conclude that Pena is
accused

of accessing unopened emails. Anderson,l34 F.3d at 443. Instead, Cruz Lopez

states

in Count II that the emails printed by Pena and produced in the January 2012FOIA disclosure
(the only emails he references), were between a few weeks and a few months old and had already

been

oosent

through" his Yahoo! account. 'oSent through" does not necessarily mean

"transmitted," but Cruz Lopez offers no facts in the complaint showing that the addressee (even
assuming Pena accessed other email accounts) had yet to open the emails. There is insufficient
allegation, then, that the emails were in electronic storage under $ 2510(17XA).1

Clearly Established Law

The Court notes that, since before August 8, 2009,

$

2510(17) has been clearly

established to protect unopened emails. See Steve Jaclcson Games, Inc. v. U.S. Secret Serv.,816

F. Supp. 432, 44243 (W.D. Tex. 1993) aff'd,36 F.3d 457,462 (Sth Cft. 1994) (holding that
Secret Service violated SCA by going beyond warrant and seizing computer server containing

unopened email); United States v. Councilman,4lS F.3d

67,81 (lst Cir. 2005); Theofel

v.

Farey-Jones, 359 F.3d 1066, 1075-77 (9th Cir. 2003) ("even the government concedes that
unopened e-mail is protected by the electronic storage provisions"); DoubleClick, I54 F. Supp.

2dat5I2;Weaver,636 F. Supp.2dat77l;see also Renev. G.F. Fishers, lnc.,817 F. Supp.2d
1090, 1096 (S.D. Ind.

' In Count II,

20ll)

(citing numerous other courts, including the Fifth Circuit rn Steve

Cruz Lopez makes the conclusory assertion that "Pena. . . accessed. . . electronic
in electronic storage," but no facts are offered in

communications while those communications were
support.

Page 7

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Jackson, that have held unopened emails to be in electronic storage). In light of this clearly
established law, which contains no border search exception, Pena's conduct could have been
obj

ectively unreasonable.
As to $ 2510(17)(B), to the extent that CruzLopez contends in his response that opened

emails were in backup storage, his argument fails because the law is not clearly established on
the matter. No court within the Fifth Circuit has addressed subsection B with respect to emails;

other courts are in hot debate over its meaning. Compare Weaver, 636 F. Supp. at

773

(concluding that, although only RCS is normally provided to opened emails, emails can be in
ECS backup storage if primary, downloaded copy exists); Jennings v. Jennings,No.27177,2012

WL 48085 45, at *3 (S.C. Oct. 10, 2012) (similar); with Theofel v. Farey-Jones, 359 F.3d 1066,
1075-77 (9th Cir. 2003) (concluding that emails, without downloaded copy, can be in ECS
backup storage after transmission and until no longer needed by provider or user); Fraser

v.

Nationwide Mutual Ins. Co.,352F.3d 107,114-15 (3d Cir. 2004) (suggesting similar); Shefts

v.

Petrqkis, No. 10-CV-1104, 2011

WL

5930469 (C.D.

Ill. Nov. 29,2011) (similar); Cardinal

Health 414, Inc. v. Adams,582 F. Supp. 2d967,976 & n.2 (M.D. Tenn.2008) (similar); Bailey
v. Bailey,No. 07-1 1672,2008

WL 324156, at *6 (E.D. Mich. Feb. 6, 2008) (similar); and with

Theofel,359 F.3d at 1076-77 ("A remote computing service might be the only place a user stores

his messages; in that case, the messages are not stored for backup purposes."); Crispin

v.

Christian Audigier, Inc.,7l7 F. Supp. 2d 965,987 (C.D. Cal. 2010) (holding that dual ECS/RCS
providers are RCS providers as to opened messages); In re U.5., 665 F. Supp. 2d 1210,l2I4 (D'

Or. 2009) (noting that, although many facilities provide both ECS and RCS, the ECS/RCS
distinction "serves to define the service that is being provided at a particular time . . . rather than

to define the service provider itself'); Flagg v. City of Detroit,252 F.R.D. 346,363 n29 (8.D.

Page 8

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Mich. 2008) (noting that ECS provider becomes RCS provider as to messages that user has read
and not deleted); Jennings, 736 S.E.2d 242 (Toal, C.J., concurring) (citing Steve Jackson, 36

F.3d 457,461,to argue that unopened emails are in electronic storage but that opened emails,
downloaded or not, are neither in storage incident to transmission nor in backup storage).

Thus, courts diverge on whether an ECS provider continues to provide ECS postopening, and

subsection

in turn whether subsection B exists on a timeline at all distinct from that of

A.

Although the emails might have been

in backup storage under some

interpretations cited above, there was not in 2009-and has not been since-a clearly established
understanding of whether backup protection extends to opened emails.

In conclusion, because he has not adequately alleged the emails to have been in electronic
storage, Cruz Lopez has failed to state a claim in Count

lL

Anderson, 184 F.3d at 443 (citing

Jaclcsonv. Widnall, gg F.3d 710,715-16 (5th Cir. 1996)). The Court need not address further
questions of qualified immunity. See Ashuoft v. al-Kidd,131 S. Ct.2074,2080 (201l).

Leave to Amend
Notwithstanding Cruz Lopez's failure to state a claim against Pena, the Court considers
Cruz Lopez's response as a motion for leave to amend his complaint. Fed. R. Civ. P.I5(a); see

Morin v. Moore,309 F.3d 316,323 (5th Cir. 2002) ("in the interest of justice

a revised theory

of

the case set forth in the plaintiffs opposition should be construed as a motion to amend the

pleadings"). By his response to Pena's Motion to Dismiss, Cruz Lopez apparently wants to
amend in two ways: first, to sufficiently plead facts,

if any exist, supporting his contention

that

emails Pena accessed were in electronic storage; second, to assert a $ 2703 claim against Pena

for failing to follow statutory procedures when compelling an ECS or RCS provider to disclose
electronic communications.

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of 10

Analyzing the factors commonly considered when deciding a motion for leave to amend,
Jones v. Robinson Prop, Grp., L.P.,427 F.3d 987, 994 (5th Cfu. 2005) (citing Dussouy v. Gulf
Coast Inv. Corp.,660 F.2d 594, 598 (5th Cir. 1981), there appears to be no u:rdue delay or bad

faith in seeking to amend, nor would Pena suffer undue prejudice by amendment at this early
stage. The amendments,

if

supported factually, also do not appear to be futile-although any

S 2703 and re-pled g 2701(a) claims may be questioned

in light of Pena's qualified immunity.

To facilitate determination of these claims on their merits and not on the fine points of
pleading, the Court

will

grant Cruz Lopez

2l

days

from the date of this order to amend his

complaint. See Johnson v. Epps, 479 F. App'x 583, 588 (5th Cir. 2012) (quoting Dussouy, 660
F.2d at 598, and finding that notwithstanding defendant's qualified immunity defense, district
court should have construed plaintiff s filings as motion to amend).
Conclusion
Pena's Motion to Dismiss on limitations grounds is

DENIED. On qualified immunity,

Pena's motion is GRANTED subject to Cruz Lopez fiting his amended complaint, with factual

detail and particularity supporting his
days of this order.

$

2701(a) and/or 52703 claims against Pena, within 21

If Cruz Lopez fails to so file,

dismissal of Count

II wilt become final, with

prejudice, and Pena will be dismissed as a party. This order does not and is not to be construed
to prevent Pena from urging qualified immunity as a defense to any amended complaint.

It is SO ORDERED.

rl

Signed this

hh
'

the \ /
+

day of March, 2013.

MARY LO
ATES DISTRICT JUDGE

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