Goodman v. Goodman
| Decision Date | 21 December 2022 |
| Docket Number | 21-CV-10902 (GHW) (RWL) |
| Parties | MICHAEL P. GOODMAN, Plaintiff, v. GILA GOODMAN, a/k/a Gila Dweck, a/k/a Gila Dabah, Jane Doe 1 through 20, Defendant. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO HON. GREGORY H. WOODS MOTION TO DISMISS
Plaintiff Michael P. Goodman (“Plaintiff”) seeks damages against Defendant Gila Goodman (“Defendant”), his estranged wife, alleging violations of the Computer Fraud and Abuse Act (“CFAA”) under 18 U.S.C. § 1030 the Electronic Communications Protection Act (“ECPA”) under 18 U.S.C. §§ 2510 et seq., the Stored Communications Act (“SCA”) under 18 U.S.C. §§ 2701 et seq., and various New York and New Jersey common law and statutory claims. Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim, or, in the alternative, to stay the proceedings pending resolution of the state court divorce proceedings. For the following reasons, the Court recommends that the motion be DENIED IN PART and GRANTED IN PART.
As required on a motion to dismiss pursuant to Rule 12(b)(6) the Court takes the facts alleged in the Second Amended Complaint (“SAC,” Dkt. 25) as true and draws all reasonable inferences in favor of Defendant, as the non-moving party.[1]
Plaintiff and Defendant were married on May 28, 2006 (Dkt. 28-1[2]) and maintained two residences: a beach home in New Jersey (the “New Jersey Residence”) and the marital residence in New York City (the “New York Residence”). (SAC ¶¶ 20-21.) In March 2020, Defendant filed for divorce against Plaintiff in New York County Supreme Court (“State Court”).[3] (SAC ¶ 26.) On March 19, 2020, after serving Plaintiff with divorce papers, Defendant occupied the New Jersey Residence where Plaintiff had previously left his password protected HP Pavilion All-in-One Computer (the “Computer”). (SAC ¶¶ 17, 22, 27.)
On April 4, 2020, Defendant emailed Plaintiff asking for permission to use his Computer. Plaintiff denied the request. (SAC ¶¶ 29-30.) Defendant nonetheless gained access to the Computer with the help of her son-in-law, Jack Kassin. (SAC ¶ 96.) Defendant maintained a list of passwords and number combinations previously used by Plaintiff. (SAC ¶ 102.) Kassin, acting on Defendant's behalf, tried to gain access to the Computer by entering the list of passwords. None worked. (SAC ¶¶ 103-104.) Kassin then enabled the Computer's PIN Sign On feature and entered the number combinations on Defendant's list until he found one that granted access. (SAC ¶¶ 105-106.) Plaintiff alleges he never shared his PIN. (SAC ¶¶ 94-95.)
Shortly after May 28, 2020, Plaintiff demanded the Computer be returned to him. (SAC ¶ 34.) Defendant returned the Computer nearly a month later. (SAC ¶¶ 37-38.) Plaintiff then immediately sent the Computer to a computer forensic examiner, who examined the Computer and produced a report.[4] (SAC ¶ 39.)
Among other things, the forensic examiner determined the following. Between March 19, 2020 and June 23, 2020, Defendant, or those acting on her behalf,[5] repeatedly accessed the Computer and extracted and downloaded data, emails, and other electronic information stored on the Computer's hard drive. (SAC ¶¶ 43-46, 54, 57.) The Computer's password was changed and several “third-party utilities,” like “ostpstviewer.exe,” “outlookviewer.exe,” and “kernloutlookpstviewer.exe,” were installed and run. (SAC ¶¶ 48, 51.) On June 15, 2020, data was extracted from the Computer's hard drive on three separate occasions. (SAC ¶ 54.) After the extractions were complete, an “uninstaller” program was run on the Computer to conceal the installation and use of the extraction software. (SAC ¶¶ 55-56.)
Between April 25, 2020 and June 16, 2020, a user, who Plaintiff contends is Defendant, performed the following actions on the Computer: (1) visited the Nest home system and Chase banking websites; (2) searched for “icloud login” and visited the Apple iCloud website immediately afterwards; (3) attempted to gain access to Plaintiff's Sotheby's account; (4) visited the login page for the New Jersey Appeal Filing System and the Robin Zendell & Associates' website; (5) visited a “Launch Meeting” page on Zoom; (6) visited the Delaware Courts' website and viewed legal filings related to a case involving Defendant's ex-husband; (7) visited various websites offering software solutions for viewing Outlook email archive files, downloaded a number of such programs, and provided payment to at least one software solution company; (8) accessed a partially-filled “Divorce Intake Form” on a legal case management website that had the Plaintiff's name listed in the “Full Name” field and; (9) visited an invoice summary page for a network equipment installation company. (SAC ¶¶ 57(a)-(h).)
In addition to accessing electronic information stored on the Computer's hard drive, Plaintiff also alleges “[u]pon information and belief” that Defendant had access to his Outlook Exchange Service and, from March 2020 to November 2020,[6] intercepted, accessed, downloaded, and observed his emails and other incoming electronic communications. (SAC ¶¶ 63-64.) “Upon [Plaintiff's] information and belief,” Defendant was able to access, read, download, and delete Plaintiff's emails before they synced to Plaintiff's devices or were received, opened, or read by Plaintiff himself. (SAC ¶¶ 65-67.)
Plaintiff also alleges that Defendant surreptitiously recorded his telephone conversations. In particular, at or around 4:30 p.m. on June 5, 2020, Plaintiff was on the phone and pacing back-and-forth in the New York Residence by the front door of his apartment. (SAC ¶¶ 138, 142, 145.) While Plaintiff spoke with his attorney and his Rabbi, among others, Defendant knelt outside of the front door, out-of-sight, and recorded Plaintiff's calls with her iPhone. (SAC ¶¶ 139-41, 143-44.)
State Court divorce proceedings between the parties began on March 12, 2020 and remain ongoing.[7] (SAC ¶ 26.) In her May 27 and May 28, 2020 submissions to the State Court, Defendant attached dozens of Plaintiff's private emails that Plaintiff had not previously shared with her and that Plaintiff suspects were downloaded from the Computer. (SAC ¶¶ 31-33.) In a June 16, 2020 letter sent via her attorney, however, Defendant claimed that she had turned the Computer off following the parties' initial separation in March 2020. (SAC ¶ 36.)
On November 17, 2020, the State Court ordered Defendant to produce all original copies of Plaintiff's papers, any fixed or portable hard drives that she had in her possession, and any information regarding “her purchase and/or use of any program, software, or modality, used by [Defendant], or at her direction or authorization, to obtain [Plaintiff's] communications and information without his knowledge or authorization.” (SAC ¶¶ 74, 116.) On that same day, the State Court also ordered Defendant to turn over her “iPhone(s), as well as any such computing devices [that] hold or held communications and information belonging to [Plaintiff] and that were obtained by [Defendant] herself ... without [Plaintiff's] knowledge or authorization.” (SAC ¶ 150.) Defendant produced 204 pages of physical printouts of documents and information, together with a one terabyte standalone drive that included over 350,000 emails and “ostpstviewer.exe” software. (SAC ¶¶ 75, 77.) Although Defendant represented to the State Court that she had fully complied with the Court's order, she did not produce additional devices Plaintiff believes to be in her possession. (SAC ¶¶ 117-18.) Defendant also did not produce her cellphone. (SAC ¶ 151.)
On December 2, 2020, Plaintiff saw Defendant and her assistant carrying a large desktop computer out of Defendant's New York City home office, a space the parties jointly own in the same building as the New York Residence. (SAC ¶ 119.) On January 26, 2021, the State Court authorized Plaintiff to make a one-hour inspection of Defendant's home office. (SAC ¶ 120.) During his inspection, Plaintiff saw numerous computing devices that Defendant had not included in her production responding to the State Court's November 17, 2020 Order. (SAC ¶ 121.) On or about February 21, 2021, Plaintiff learned of more devices - another computer and two Dell laptops, purchased in or about April 2020 and May 2020 respectively - that Defendant had withheld from her prior production. (SAC ¶¶ 122-23.)
Regarding the laptops, Plaintiff alleges the following facts “upon information and belief.” The laptop purchased in April 2020 was bought for Defendant's assistant. It has not been turned over to Defendant's counsel as so-ordered by the State Court on November 17, 2020. (SAC ¶ 124.) The laptop purchased in May 2020 was acquired in order to download the contents of the Computer before Defendant returned it to Plaintiff. (SAC ¶ 125.)
According to Defendant's attorney, the May 2020 laptop, onto which Defendant's emails were copied, was not initially turned over to the State Court because it belonged to Defendant's son-in-law and Defendant had only previously borrowed it. (SAC ¶¶ 12627.) However, Defendant's son-in-law had to ask Defendant for the password to unlock the May 2020 laptop since he did not know it himself. (SAC ¶128.) Defendant claims her emails inadvertently synchronized to the laptop while she was borrowing it. Yet, in other statements and submissions to the State Court, Defendant stated that she authorized her assistant to export her emails to the laptop and claimed that it was her son-in-law's idea to export 350,000 files from the Computer to the Cloud. (SAC ¶¶ 127-28, 130.) On April...
To continue reading
Request your trial