Amaya v. Bregman

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation186 F.Supp.3d 1280
Docket NumberNo. 14–cv–0599 WJ/SMV,14–cv–0599 WJ/SMV
Parties Crystal Amaya, Brad Cates, Brian Moore, and Kim Ronquillo, Plaintiffs, v. Sam Bregman, Michael Corwin, Jamie Estrada, Anissa Galassini–Ford, Jason Loera, and Bruce Wetherbee, Defendants.
Decision Date13 May 2016

186 F.Supp.3d 1280

Crystal Amaya, Brad Cates, Brian Moore, and Kim Ronquillo, Plaintiffs,
v.
Sam Bregman, Michael Corwin, Jamie Estrada, Anissa Galassini–Ford, Jason Loera, and Bruce Wetherbee, Defendants.

No. 14–cv–0599 WJ/SMV

United States District Court, D. New Mexico.

Filed May 13, 2016


186 F.Supp.3d 1281

Eric A. Packel, Baker & Hostetler LLP, Philadelphia, PA, Marc David Flink, Baker & Hostetler LLP, Denver, CO, Mark E. Braden, Baker & Hostetler, LLP, Washington, DC, Patrick Joseph Rogers, Patrick J. Rogers, LLC, Albuquerque, NM, Theodore J. Kobus, III, Baker & Hostetler LLP, New York, NY, Angelo J. Artuso, Albuquerque, NM, for Plaintiffs.

Gerald Dixon, Dixon Scholl Carrillo P.A., James C. Wilkey, Steven S. Scholl, Dixon Scholl & Bailey PA, Carolyn M. Nichols, Rothstein, Donatelli LLP, Brendan K. Egan, The Rothstein Law Firm, Zachary A. Ives, Mary (Molly) E. Schmidt–Nowara, Garcia Ives Nowara, Matthew L. Garcia, Garcia Ives Nowara LLC, Albuquerque, NM, Kristina Martinez, Coberly and Martinez, LLLP, Jerry Todd Wertheim, Jones, Snead, Wertheim & Wentworth PA, Santa Fe, NM, for Defendants.

Bruce Wetherbee, Santa Fe, NM, pro se.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S JOINT MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AS TO COUNT TWO AGAINST ALL DEFENDANTS FOR ENDEAVORING TO USE AND ENDEAVORING TO DISCLOSE ELECTRONIC COMMUNICATIONS

WILLIAM P. JOHNSON, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon a Joint Motion for Partial Judgment on the Pleadings as to Count Two Against

186 F.Supp.3d 1282

All Defendants for Endeavoring to Use and Endeavoring to Disclose Electronic Communications as Alleged in Plaintiffs' First Amended Complaint for Violations of the Federal Wiretap Act and Conspiracy1 to Violate the Federal Wiretap Act, filed by Defendant Sam Bregman ("Defendant" for purposes of this motion) on March 10, 2016 (Doc.403 ). Defendant Bruce Wetherbee, who is proceeding pro se, joins in the instant motion (Doc. 403 , at 2). Having reviewed the parties' briefs and the applicable law, the Court finds that Defendant's motion is well-taken and, therefore, GRANTED.

BACKGROUND

Plaintiffs in this case allege that Defendants illegally and surreptitiously hijacked and intercepted their private and confidential e-mail communications. Count Two of the First Amended Complaint alleges violations of two criminal sections of the Electronic Communications Privacy Act ("ECPA," referred to in pleadings also as the "Federal Wiretap Act"), 18 U.S.C. § 2511(1)(c) and 18 U.S.C. § 2511(d) (2008). Defendant contends that Count Two seeks to impose civil liability on Mr. Bregman and other Defendants for conduct which is proscribed in the criminal sections of the ECPA but not proscribed in the civil liability section found at 18 U.S.C. § 2520(a).

I. Legal Standard

Rule 12(h)(2) of the Federal Rules of Civil Procedure allows parties to raise certain defenses, including the failure to state a claim upon which relief may be granted, in any pleading allowed under Rule 7(a), by a motion for judgment on the pleadings under Rule 12(c), or at trial.2 See Albers v. Bd. o f Cty. Comm'rs of Jefferson Cty., Colo., 771 F.3d 697, 701 (10th Cir.2014). A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6). See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223–24 (10th Cir.2009).

In considering a motion under Rule 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 562, 127 S.Ct. 1955. Although decided within an antitrust context, Twombly stated the pleadings standard for all civil actions. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ; Alvarado v. KOB–TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007) ;

186 F.Supp.3d 1283

Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir.2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cty. Comm'rs, 263 F.3d 1151, 1154–55 (10th Cir.2001). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109–10 (10th Cir.1991). Judgment on the pleadings should not be granted "unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law." Park Univ. Enters., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir.2006).

II. Relevant Statutory Provisions

Section 2511(1)(c) states that a person who "intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral or electronic communication," knowing that the information was obtained through interception violates the provision and is subject to suit as provided under the statute.

Section 2511(1)(d) states that a person "who intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication," knowing or having reason to know that the information was obtained through interception violates that provision and is subject to suit. 18 U.S.C. § 2511(1)(d) (emphasis added). The statute also prohibits intentional interception, or endeavoring to intercept. See 18 U.S.C. § 2511(1)(a).

The civil liability provision of the ECPA, § 2520(a), provides for recovery of civil damages for wire and electronic communications interception and states that: "[A]ny person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity ... which engaged in that violation."

DISCUSSION

Defendant contends that Plaintiffs cannot prove entitlement to relief under any set of facts as to their claims against Mr. Bregman and other Defendants for endeavoring to use or endeavoring to disclose their emails, and therefore they are entitled to dismissal of those parts of Count Two alleging violations of 18 U.S.C § 2511(a)(c) and 18 U.S.C. § 2511(d). Doc. 403 at 7. Plaintiffs claim that they have sufficiently alleged claims brought under 18 U.S.C. § 2511 because they also allege that Defendants intentionally intercepted, used and/or disclosed these communications. Plaintiffs further contend that because Count Two sufficiently alleges a basis for recovery under § 2520 for use and disclosure, the additional determination as to whether § 2520 allows civil recovery of damages for any violation of § 2511(1) (including "endeavor" conduct) is unnecessary.

I. Allegations in Count Two

Defendants claim that Count Two seeks to impose civil liability against Mr. Bregman and the other Defendants for allegedly endeavoring to use and endeavoring to disclose electronic communications in the form of email communications sent to or sent from Plaintiffs and that this conduct, while prohibited in the criminal provisions of the ECPA, is not conduct that permits civil recovery of damages under § 2520. Doc. 403 at 2. Bregman seeks dismissal of Plaintiffs' claims in Count Two to the extent they allege liability for endeavoring to use or endeavoring to disclose electronic communications that were intercepted in violation of the ECPA.3

186 F.Supp.3d 1284

Plaintiffs claim that Defendant's motion can be denied on the ground that they have pled both "endeavor" conduct as well as "use" and "disclosure." (Doc. 418 at 4: "Because Plaintiffs have not merely pled that Defendants endeavored to use or endeavored to disclose Plaintiffs' electronic communications but have also alleged that Defendants intentionally intercepted, used and/or disclosed these communications, Plaintiffs have sufficiently stated a claim"). However, under a plain reading of the Amended Complaint, it is not so clear that Plaintiffs have in fact alleged a claim based on "endeavor to use" or "endeavor to disclose." Plaintiffs style Count Two as alleging a violation of 18 U.S.C. § 2520 : "Against All Defendants for Disclosure and/or Use." Doc. 22 at 16. Plaintiffs specifically describe the alleged basis for this claim by asserting that "Defendants Loera, Bregman, Corwin, Wetherbee, and...

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