Hill v. Mci Worldcom Communications, Inc.

• Decision Date: 23 April 2001
• Docket Number: No. 4-00-CV-70496.,4-00-CV-70496.
• Citation: 141 F.Supp.2d 1205
• Parties: Peggy A. HILL, Plaintiff, v. MCI WORLDCOM COMMUNICATIONS, INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

141 F.Supp.2d 1205

Peggy A. HILL, Plaintiff, v. MCI WORLDCOM COMMUNICATIONS, INC., Defendant.

No. 4-00-CV-70496.

United States District Court, S.D. Iowa, Central Division.

April 23, 2001.

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George A Lamarca, Justin E Lavan, Lamarca & Landry, West Des Moines, IA, for Peggy A Hill, plaintiff.

Helen C Adams, Dickinson Mackaman Tyler & Hagen, Des Moines, IA, for MCI Worldcom Communications, defendant.

OPINION, RULINGS PARTIALLY GRANTING AND PARTIALLY DENYING MOTION TO DISMISS, AND ORDER DISMISSING SOME OF PLAINTIFF'S CLAIMS WITH PREJUDICE

VIETOR, Senior District Judge.

Plaintiff Peggy A. Hill ("Hill") initially filed a one-count complaint against defendant MCI WorldCom Communications, Inc. ("MCI") for violation of the Electronic Communication Privacy Act ("ECPA"), 18 U.S.C. § 2702. On November 28, 2000, this court granted MCI's motion to dismiss but delayed dismissal of the complaint until December 8, 2000, to allow Hill an opportunity to amend her complaint to allege state law claims. Hill v. MCI WorldCom Communications, Inc., 120 F.Supp.2d 1194 (S.D.Iowa 2000)[hereinafter Hill I].

On November 29, 2000, Hill filed a three-count amended complaint that includes the ECPA claim and two state law claims. Jurisdiction is based on federal question and diversity of citizenship. MCI moves to dismiss the amended complaint for failure to state a claim, pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6).

I.

In addressing a motion to dismiss, the allegations of the complaint must be taken as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

II.

The following facts are alleged in the amended complaint and, for purposes of this motion, are viewed as true. Cruz, 405 U.S. at 322, 92 S.Ct. 1079. On April 26, 1999, Hill purchased long distance telephone services through MCI. From that date on, Hill paid an additional amount of money to assure that her telephone number would be unlisted and that any other personal information would remain unpublished and confidential.

Beginning on June 19, 1999, an unidentified man ("X") began what would be a series of telephone calls to MCI, where he questioned MCI's customer service representatives about Hill's invoice/billing information, parties Hill called, addresses and phone numbers of parties Hill called, and "other confidential information." On June 19, 1999, MCI provided X a phone number Hill had called using MCI's long distance services. On June 22, 1999, X called MCI, changed Hill's calling plan for the second time, and obtained a phone number. Later on June 22, 1999, X called MCI and obtained two phone numbers. Still later on June 22, 1999, X called MCI, obtained a phone number, and requested to change the calling plan. Again later on June 22, 1999, X called MCI and was "educated ... on the bill." On June 23, 1999, X called MCI and obtained fifteen phone numbers and the addresses for those phone numbers from Hill's electronically stored long distance telephone records, and also received "other electronically stored information." Exhibit 1 attached to the amended complaint is MCI's records, which document over twenty instances of contact between MCI and X in a one week period.

On June 23, 1999, X called a close personal friend of Hill he located through one of the phone numbers divulged by MCI. Later, X was "put in touch" with Hill, who recognized X's voice as that of her exhusband, who previously had harassed, stalked, and threatened her. On June 28, 1999, Hill received a photograph and a letter from X.

III.

Hill alleges that MCI's actions violated her right of privacy. The right of privacy is defined as the "right ... to be let alone, to live a life of seclusion, to be free from unwarranted publicity." Bremmer v. Journal-Tribune Publ'g Co., 247 Iowa 817, 76 N.W.2d 762, 764 (1956). Iowa recognizes the following four theories of invasion of privacy: "Intrusion upon plaintiff's seclusion or solitude, or into his private affairs[;][p]ublic disclosure of embarrassing facts about the plaintiff[;][p]ublicity which places plaintiff in a false light in the public eye[; and] [a]ppropriation, for defendant's advantage, of the plaintiff's name or likeness." Yoder v. Smith, 253 Iowa 505, 112 N.W.2d 862, 863-64 (Iowa 1962) (quoting PROSSER, LAW OF TORT 637-39 (2d ed.1955)). These four theories have been adopted by the RESTATEMENT (SECOND) OF TORTS § 652A (1977). The Iowa Supreme Court has "adopted the principles of the tort delineated in [the] Restatement," Howard v. Des Moines Register & Tribune Co., 283 N.W.2d 289, 291 (Iowa 1979), and therefore "it is reasonable to refer to the Restatement explanation of its elements." Id. at 301.

A.

Hill alleges that MCI's disclosures intruded upon her seclusion. MCI argues that disclosure of information properly obtained does not state a claim of intrusion.

The Iowa Supreme Court has not thoroughly explained the elements of the intrusion theory. That court simply states that it requires "an intentional intrusion upon the solitude or seclusion of another which would be highly offensive to a reasonable person." Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977); see Stessman v. Am. Black Hawk Broad. Co., 416 N.W.2d 685, 687 (Iowa 1987). This begs the question of what conduct constitutes an intrusion.

"Intrude" means "to thrust oneself in without invitation, permission, or welcome." O'Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir.1989)(citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1187 (1966)). "Intrusion" is defined as the act of "wrongfully entering upon, seizing, or taking possession of the property of another," WEBSTER'S NEW COLLEGIATE DICTINARY 602 (1979), and occurs "when an actor `believes or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act.'" Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871, 876 (8th Cir.2000)(quoting O'Donnell, 891 F.2d at 1083). The definitions support MCI's position.

Though the Restatement does not define intrusion, O'Donnell, 891 F.2d at 1083, it does explain that the tort involves conduct of "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person." RESTATEMENT (SECOND) OF TORTS § 652B. It "does not depend upon any publicity given to the person whose interest is invaded or to his affairs." Id. "The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined." Id. The Restatement supports MCI's argument.

Although Iowa case law has not directly addressed the issue, there is relevant language on the subject. See Stessman, 416 N.W.2d at 687-88 ("To film a person in a private dining room might conceivably be a highly offensive intrusion upon that person's seclusion."); Lamberto v. Bown, 326 N.W.2d 305, 309 (Iowa 1982)("Publication of information obtained by such intrusion is not a necessary element of the tort.")(citing RESTATEMENT (SECOND) OF TORTS § 652B); Pulla v. Amoco Oil Co., 882 F.Supp. 836, 867 & n. 24 (S.D.Iowa 1994)("[T]he employer's interest must be balanced against the degree of intrusion resulting from the employer's methods to obtain the information in question."), aff'd in part, rev'd in part by 72 F.3d 648 (8th Cir.1995). One federal case applying Iowa law contains language that arguably supports Hill's position. See Hanson v. Hancock County Mem'l Hosp., 938 F.Supp. 1419, 1436-37 (N.D.Iowa 1996)("Although it might be highly offensive for the Hospital to disclose the identity of a patient to a member of the general public who happened to be the patient's employer, it is not reasonable to suppose that requests for information, even information confidential as to outsiders, by persons on the staff of the Hospital, or disclosures to such persons, would be equally offensive."). The court, however, did not directly address the issue and ultimately granted summary judgment to the defendant on the claim. It seems clear that Iowa case law supports MCI's position.

Hill relies on case law from other states. Iowa law, however, controls. In any event, only two non-Iowa cases out of twelve that I have found support Hill's position. See Tobin v. Mich. Civil Serv. Comm'n, 416 Mich. 661, 331 N.W.2d 184, 189-90 (1982); Humphers v. First Interstate Bank of Or., 68 Or.App. 573, 684 P.2d 581, 583-84 (1984), aff'd in part, rev'd in part by 298 Or. 706, 696 P.2d 527, 533 (1985)(en banc).

Because I conclude that under Iowa law disclosure of properly obtained information does not state a claim for invasion of privacy under the theory of intrusion upon seclusion, MCI's motion will be granted as to this claim.

B.

Hill alleges that MCI publicly disclosed private facts about her. MCI argues that disclosure to one person is insufficient publicity to state a claim.

As a general matter, MCI's argument is correct.

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Winegard, 260 N.W.2d at 823 (quoting RESTATEMENT (SECOND) OF TORTS § 652D). Publicity includes publication in a newspaper, posting in a window on a public street, or crying it aloud in the highway, Yoder, 112 N.W.2d at 864, and generally requires communication to the public at large, to a large group of people, or to a person or persons so...