Boudreau v. Automatic Temperature Controls, Inc.

• Citation: 212 A.3d 594
• Decision Date: 20 June 2019
• Docket Number: No. 2018-91-Appeal. (PC 16-3609),2018-91-Appeal. (PC 16-3609)
• Parties: Jason BOUDREAU v. AUTOMATIC TEMPERATURE CONTROLS, INC. et al.
• Court: United States State Supreme Court of Rhode Island

212 A.3d 594

Jason BOUDREAU

v.AUTOMATIC TEMPERATURE CONTROLS, INC. et al.

No. 2018-91-Appeal. (PC 16-3609)

Supreme Court of Rhode Island.

June 20, 2019

Jason Boudreau, Pro Se.

Christopher J. Fragomeni, Esq., Douglas A. Giron, Esq., Pawtucket, for Defendants.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Flaherty, for the Court.

The pro se plaintiff, Jason Boudreau, appeals from a Superior Court judgment granting summary judgment in favor of the defendants, Automatic Temperature Controls, Inc. (ATC), Golden Plains Software, LLC, and Russell Turner.¹ This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing argument and examining the memoranda filed by and on behalf of the parties, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

The plaintiff was employed by ATC from September 2009 until June 2011. Shortly before plaintiff's employment was terminated, Steve Sorel, ATC's information technology manager, at the behest of Steve Lussier, ATC's president, installed a software program called System Surveillance Pro (SSP) on plaintiff's work computer.² SSP was able to capture intermittent pictures, or "screenshots," of the content displayed on plaintiff's computer screen, which were saved to the computer's hard drive and sent to a remote email address that had been created and managed by Sorel. The information obtained from plaintiff's work computer through SSP was disclosed to the Warwick Police Department. This disclosure in turn led to plaintiff's arrest and eventual conviction for possession of child pornography.

After he was discharged by ATC, plaintiff filed a claim for unemployment benefits. ATC contested that claim and, on January 24, 2012, a hearing was held on the matter before a hearing officer at the Rhode Island Department of Labor and Training Board of Review. At that hearing, with plaintiff present, Lussier testified that ATC had installed the tracking software on plaintiff's work computer. Lussier further explained that, "[e]very time [plaintiff] clicked on a website, sent an e-mail, [or] opened a program," a record of the action was logged and emailed to Lussier and Sorel.

In 2013 plaintiff filed a lawsuit against Lussier, Sorel, and others in the United States District Court for the District of Rhode Island. See Boudreau v. Lussier , 2015 WL 7720503 (D.R.I. Nov. 30, 2015). In that case, plaintiff alleged that Sorel and Lussier had violated the Electronic Communications Privacy Act when they installed SSP on the work computer.³ See id. at *5. When he was deposed during the course of that litigation, plaintiff testified that he was not aware that ATC had installed any tracking software on his computer "until January 24[, 2012] when Steve Lussier testified that that's what was on the computer." The District Court granted summary judgment in favor of the defendants, ⁴ and the United States Court of Appeals for the First Circuit affirmed that decision. See Boudreau v. Lussier , 901 F.3d 65, 76, 77, 78 (1st Cir. 2018).

In August 2016, plaintiff filed another lawsuit, this time in the Superior Court. It is that lawsuit that is the subject of this appeal. In his complaint, plaintiff alleged various claims under the Rhode Island Wiretap Act, the Rhode Island Computer Crime Act, the Rhode Island Software Fraud Act, and state privacy laws, as well as claims for negligence, fraudulent concealment, products liability, civil liability for crimes and offenses, and various federal law claims. The case was removed to the District Court, where ATC filed a motion to dismiss plaintiff's complaint. The District Court dismissed plaintiff's federal claims pursuant to the relevant statute of limitations and remanded the remainder of the case to the Superior Court to determine ATC's motion to dismiss with respect to plaintiff's state law claims. In November 2017, a justice of the Superior Court heard the arguments of the parties on ATC's motion to dismiss. ATC argued that G.L. 1956 § 9-1-14(b), which provides for a limit of three years from the date of an injury to a person to file an action, was the applicable statute of limitations. ATC further argued that any injury that plaintiff was alleged to have suffered occurred in June 2011 but that plaintiff did not file his complaint until August 2016, rendering his claims time barred. Moreover, ATC contended that, even if the discovery rule applied to this case, plaintiff's claims were nonetheless time barred because plaintiff was aware, or, as a matter of law objectively should have been aware, of his claims at his unemployment hearing in January 2012. Finally, ATC argued that the statute of limitations could not be tolled by fraudulent concealment because there had been no express misrepresentation by ATC.

Significantly, at the request of plaintiff, the court converted the motion to dismiss into a motion for summary judgment under Rule 56 of the Superior Court Rules of Civil Procedure, because both parties had referred to matters outside of the pleadings. The hearing justice assumed, arguendo , that the discovery rule applied, but he concluded nevertheless that plaintiff had "more than sufficient knowledge of what transpired relative to the surveillance of his computer activities by the end of January 2012 to place a reasonable person in his place on notice of any potential claim" he might have had against ATC.

In coming to that conclusion, the hearing justice found that in June 2011 ATC installed software on plaintiff's work computer without his knowledge that intercepted plaintiff's emails and online activities. However, the hearing justice also found that the intercepted information was disclosed to the Warwick Police Department in June 2011, leading to plaintiff's arrest and ultimate conviction, and also was disclosed during plaintiff's unemployment hearing in January 2012. Moreover, the hearing justice noted that, in 2013, plaintiff was in possession of enough information to file his complaint in the District Court that outlined his injuries; and the hearing justice found it "both curious and revealing" that, in the case now before us, plaintiff amended his complaint to delete a factual allegation that ATC had disclosed the contents of plaintiff's intercepted communications during the unemployment hearing. Finally, the hearing justice said that there was no evidence that ATC had fraudulently concealed anything from plaintiff. Accordingly, the hearing justice granted summary judgment in favor of defendants. Final judgment was entered on November 27, 2017. The plaintiff timely appealed to this Court.⁵

IIStandard of Review

This Court reviews a decision granting a party's motion for summary judgment de novo . DeLong v. Rhode Island Sports Center, Inc. , 182 A.3d 1129, 1134 (R.I. 2018). "Examining the case from the vantage point of the trial justice who passed on the motion for summary judgment, ‘we view the evidence in the light most favorable to the nonmoving party, and if we conclude that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law, we will affirm the judgment.’ " Sullo v. Greenberg , 68 A.3d 404, 406-07 (R.I. 2013) (brackets omitted) (quoting Sacco v. Cranston School Department , 53 A.3d 147, 150 (R.I. 2012) ). "Although summary judgment is recognized as an extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to produce competent evidence that ‘proves the existence of a disputed issue of material fact.’ " Id. at 407 (internal citation and brackets omitted) (quoting Mutual Development Corporation v. Ward Fisher & Company, LLP , 47 A.3d 319, 323 (R.I. 2012) ).

IIIDiscussion

On appeal, plaintiff urges upon this Court that the hearing justice erred when he ruled that the claims set forth in plaintiff's complaint were barred by the three-year statute of limitations set forth in G.L. 1956 § 9-1-14(b). The plaintiff argues that the discovery rule should apply to his claims under the Rhode Island Computer Crime Act and the Software Fraud Act (the computer crime claims). The plaintiff also maintains that the hearing justice erred when he found that there was no evidence indicating that ATC had fraudulently concealed the conduct that forms the basis of plaintiff's computer crime claims. Further, plaintiff contends that the continuing violation doctrine should apply to his claims under the Rhode Island Wiretap Act.

AThe Discovery Rule

The plaintiff argues that the hearing justice erred in finding that plaintiff was aware of his state computer crime claims⁶ in June 2011, and that "at least by the end of January 2012, the plaintiff had more than sufficient knowledge of what transpired relative to the surveillance of his computer activities to place a reasonable person in his place on notice of any potential claim against [ATC]." According to plaintiff, the discovery rule should have tolled the statute of limitations for his computer crime claims until some point after August 2013. It was only after that time, he argues, that he became aware of the name of the software and its functions and configurations. We disagree.⁷

Section 9-1-14(b) provides that "[a]ctions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue, and not after[.]" We have defined "injuries to the person" under that statute as follows:

"[T]he phrase ‘injuries to the person’ as used in [ § 9-1-14 ] is to be construed comprehensively and as contemplating its application to actions involving injuries that are other than physical. Its purpose is to include within that period of limitation actions brought for injuries resulting from

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