Leitner v. Morsovillo

• Decision Date: 12 October 2022
• Docket Number: 21-CV-3075-SRB
• Parties: REBEKAH LEITNER, Plaintiff, v. RICHARD MORSOVILLO, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

REBEKAH LEITNER, Plaintiff, v. RICHARD MORSOVILLO, et al., Defendants.

No. 21-CV-3075-SRB

United States District Court, W.D. Missouri, Southern Division

October 12, 2022

ORDER

STEPHEN R. BOUGH, JUDGE UNITED STATES DISTRICT COURT

Before the Court is Defendants Richard Morsovillo, Jeffrey Sneed David Roark, Jennifer Griffin, JumpSix Marketing, LLC BigPxl, LLC, and E&M Management, LLC's (collectively, “Defendants”) Motion for Summary Judgment. (Doc. #83.) For the reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

For the purpose of resolving the pending motion, the following facts are uncontroverted or deemed uncontroverted by the Court.^[1] Additional facts relevant to the parties' arguments are set forth in Section III.

This civil lawsuit arises from a complex web of business relationships between Plaintiff Rebekah Leitner (“Plaintiff”) and Defendants. Plaintiff, an Ohio citizen, started her own marketing business in 2012. During 2014, Plaintiff partnered with a company known as Mission Marketplace LLC, through which she became connected to Defendants Richard Morsovillo (“Morsovillo”) and Jeffrey Sneed (“Sneed”), who are both citizens of Missouri. Between 2016 2017, Plaintiff hired David Roark (“Roark”) and Jennifer Griffin (“Griffin”), who are both citizens of Indiana, as independent contractor sales representatives for her business.

Plaintiff later began utilizing JumpSix, an LLC formed by Morsovillo in 2018 to perform various marketing services for her clientele. While working with JumpSix, Plaintiff utilized the following internet services: an email account, a Google Drive, Basecamp, and HubSpot (collectively, “the platforms”). The parties do not dispute that Plaintiff did not hold licenses to these services and used them at the invitation of Jumpsix.^[2] Jumpsix, Sneed, and Morsovillo controlled the licenses or subscriptions to the platforms. By virtue of holding the license and/or subscription, Jumpsix, Sneed, and Morsovillo had the ability to access the data that Plaintiff stored on the platforms, and share that access with others.

In late 2019, Plaintiff terminated her business relationship with Defendants. Plaintiff ended her independent contractor relationship with Roark on November 8, 2019. Plaintiff instructed and JumpSix agreed to block Griffin and Roark's access to platforms listed above on November 13, 2019. Plaintiff ended her independent contractor relationship with Griffin at some point between November 2019-January 2020. (Doc. #87-8, p. 5.)^[3] Defendants continued to access Plaintiff's client information on the platforms after the termination of the parties' relationships. Additionally, Griffin and Roark continued to use the email addresses assigned to them as part of their business relationship with Plaintiff, which contained Plaintiff's client information.

Plaintiff filed suit, asserting the following claims against Defendants: (1) Count I: Tortious Interference with Contracts and/or Business Expectations; (2) Count II: Defamation; (3) Count III: Violation of the Stored Wire and Electronic Communications Act (“SCA”), 18 U.S.C. § 2701 et seq.; (4) Count IV: Violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq.; (5) Count V: Violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510 et seq.; (6) Count VI: Violation of the Missouri Computer Tampering Act (“Missouri CTA”), Mo. Rev. Stat. § 569.095 et seq.; (7) Count VII: Conversion; (8) Count VIII: Civil Conspiracy; (9) Count IX: Action for Accounting; and (10) Count X: Breach of Duty of Loyalty.

II. LEGAL STANDARD

Under Rule 56, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of identifying “the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (cleaned up). If the moving party makes this showing, “the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.” Id. (quotation marks omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. (quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on Counts III-V and IX-X. Plaintiff opposes the motion. The parties' arguments are addressed below.

A. Count III: Stored Wire and Electronic Communications Act, 18 U.S.C. § 2701

Defendants argue that summary judgment should be granted on Count III because (1) a plaintiff cannot prevail on a SCA claim where “the facts confirm that the only systems at issue are Defendants' own[;]” and (2) two statutory exceptions bar liability.^[4] (Doc. #84, p. 9) (emphasis in original). Each argument is addressed below.

Commonly known as the Stored Communications Act, the SCA authorizes a civil cause of action 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.

18 U.S.C. § 2701(a)); 18 U.S.C. § 2707 (creating a civil cause of action). As defined by the SCA, “electronic storage” means: “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof;” or “(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).

1. Unauthorized Access

Defendants argue that summary judgment is warranted on Count III because “[t]he undisputed material facts do not in any way suggest that there was-or possibl[y] could have been-any intrusion into any electronic communication system at all” because Defendants owned the relevant systems and Plaintiff had no right to control them. (Doc. #84, p. 10.) Plaintiff disagrees, arguing that the data at issue was hosted on third-party servers and “everyone admits they accessed [Plaintiff]'s electronic business data in violation of her express instruction.” (Doc. #87, p. 16.)

A person violates the SCA when they access an email account, “exceeding the expressly limited authorization” given. Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 839 (8th Cir. 2015) (applying principles of common law trespass to guide the scope of access under SCA). Ability to access does not confer authority to access for the purposes of the SCA. Id. (citing Johnson v. U.S. Bancorp Broad-Based Change in Control Severance Pay Program, 424 F.3d 734, 740 (8th Cir. 2005)).

As the key inquiry is whether Defendants had authorization to access Plaintiff's data on the platforms, the Court finds that summary judgment is warranted as to the Basecamp and Hubspot platforms. However, there are genuine disputes of material fact exist as whether Defendants had authorization to access the email accounts and Google Drive, as set out below. It is undisputed that Defendants provided the license or subscription for the platforms:

Q So when you are using JumpSix Marketing and communicating with JumpSix Marketing about digital marketing services customers, you are using Google Drive, Basecamp, and HubSpot at the invitation of JumpSix Corporate. Correct?

A As a part of doing business - yeah, as part of doing business, those were softwares provided to me as part of - they were supplied through JumpSix for my business.

(Doc. #84-1, p. 8-9.) Further, it is undisputed that Defendants, by virtue of holding the license and/or subscription, had the ability to access the information and communications stored in Plaintiff's accounts. (Doc. #84-1, pp. 17-18.)

Plaintiff has presented evidence establishing a genuine question of material fact as to whether Defendants had the authorization to access data or communications stored on the email or Google Drive. In discussing employment arrangements after ending her association with JumpSix, Defendant Sneed told Plaintiff that “technically, [Plaintiff] own[ed] those email addresses” and that he “fe[lt] [Plaintiff] ha[d] rights to everything in [the] drive.” (Doc. #87-3, pp. 1-2; Doc. #87-7, p. 1.) Further, the parties agree that Plaintiff instructed Defendants to cut Defendants' access to the platforms. Beyond general allegations that “the only systems at issue (email, Google Drive, Basecamp, Hubspot, and web hosting) are all Defendants' own systems,” Defendants put forth no evidence that they had unrestricted authorization to all data and communications hosted on those platforms. (Doc. #84, p. 9); see Brown Jordan Int'l, Inc. v. Carmicle, 846 F.3d 1167, 1177 (11th Cir. 2017) (evaluating whether access to an email account was authorized by referring to the company's computer and internet policies). Therefore, Defendants have not satisfied their burden in showing there is no genuine dispute of material fact as to whether their access was authorized.

However Court finds that summary judgment is warranted on Count III as to the Basecamp and HubSpot platforms. Plaintiff admits that all data and communications stored on these platforms were accessible to and used by other JumpSix employees: “So with HubSpot, if you were set up as a user, you could view all the information. As a user in Basecamp, that information is shared about clients so other peo...