Luis v. Zang, Case No. 1:12-cv-629

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Decision Date06 April 2018
Docket NumberCase No. 1:12-cv-629
PartiesJAVIER LUIS, Plaintiff, v. JOSEPH ZANG, et al., Defendants.

JAVIER LUIS, Plaintiff,
JOSEPH ZANG, et al., Defendants.

Case No. 1:12-cv-629


April 6, 2018

Dlott, J.
Bowman, M.J.


The above-captioned case, initiated by Plaintiff Javier Luis ("Luis") pro se and in forma pauperis more than six years ago in Florida, has a lengthy procedural history. After this Court granted a motion to dismiss and entered judgment for Defendant Awareness Technologies, Inc. ("Awareness"), Plaintiff successfully appealed to the Sixth Circuit, which reversed and remanded for further development of the record. Luis v. Zang, 833 F.3d 619 (6th Cir. 2016).

Following a period of discovery, Awareness filed a motion for summary judgment. (Doc. 213). For the following reasons, the undersigned now recommends granting Defendant's motion.

I. Background

The parties agree that the undersigned's prior Report and Recommendation ("R&R", see Doc. 196) "accurately and exhaustively sets out a procedural history" of this case. (Doc. 213 at 2; Doc 219 at 1). For the convenience of the Court, that history is restated in part.

Plaintiff's claims arise out of divorce proceedings between Joseph and Catherine

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Zang in the Hamilton County Ohio Court of Common Pleas. During the course of those proceedings, Catherine learned that her now ex-husband had installed audio and video surveillance equipment in the marital residence, and spyware on a home computer.1 The computer "spyware" was a product called WebWatcher, which was manufactured and marketed by Awareness.2 Once installed, WebWatcher allegedly captured electronic communications such as emails and instant messages ("IMs") in real time, and forwarded those communications to servers maintained by Awareness in California, where they were stored for later review and access by WebWatcher users such as Joseph Zang. During his divorce proceedings in state court, Joseph produced emails and messages between Catherine and Javier Luis, the Plaintiff herein, that Joseph allegedly obtained through his use of the WebWatcher product.

Catherine and others impacted by the installation of WebWatcher (though not Luis) responded by filing suit in this Court against multiple corporate and individual defendants, asserting claims under the federal Wiretap Act as well as claims under state law. See Catherine Zang, et al. v. Joseph Zang, et al., Case No. 1:11-cv-884. Rather than joining Case No. 1:11-cv-884, Plaintiff Luis, who lives in Florida, filed his own cases against many of the same defendants in Florida state and federal courts.3 Eventually, Plaintiff's cases were consolidated into one, and on August 20, 2012, the United States District Court for the Middle District of Florida transferred Luis's federal case to this Court, where it was further consolidated for pretrial proceedings with Lead

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Case No. 11-cv-884. However, all claims and parties in Case No. 1:11-cv-884 were later dismissed and that case was closed, leaving the above-captioned case to stand alone. At this point in the proceedings, the only claims that remain are those that Plaintiff Luis asserts against Defendant Awareness.

In 2012, Defendant Awareness moved to dismiss, for failure to state a claim, the claims asserted in a prior version of Plaintiff's complaint. (Docs. 68, 77). The undersigned recommended granting that motion in an R&R that was adopted by the Court. (Docs. 109, 162). On appeal, the Sixth Circuit Court of Appeals reversed.

The Sixth Circuit held that Plaintiff had alleged sufficient facts in his July 20, 2012 pleading to support two federal claims against Defendant Awareness under the Wiretap Act, as well as two related state court claims. Specifically, the appellate court determined that Plaintiff had adequately alleged that "Awareness intentionally 'intercepted' Luis's electronic communications in violation of 18 U.S.C. § 2511," that Awareness further "violated 18 U.S.C. § manufacturing, marketing, selling, and operating a device that Awareness knew or had reason to know was to be used primarily for the surreptitious interception of electronic communications," and that "Awareness violated Ohio state law by (1) intercepting and using his electronic communications within the meaning of Ohio's Wiretap Act, and (2) invading his privacy within the meaning of the common-law tort." Zang, 833 F.3d at 625.

Following remand, this Court set new pretrial deadlines, including a new deadline by which Plaintiff was permitted to file a motion to further amend his complaint.4 Plaintiff filed two untimely motions to amend, (Docs. 187, 189), which were nevertheless

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considered "in the interests of justice." (Doc. 196 at 9, n.8). Ultimately, the Court denied most of the proposed amendments, but permitted Plaintiff to expand upon existing claims against Defendant Awareness. (Doc. 196 at 16). Plaintiff's last amended complaint was filed on March 28, 2017, and supersedes all prior versions of Plaintiff's complaint against Defendant Awareness Technologies, Inc. (Doc. 195). The deadline for completion of fact discovery expired on May 1, 2017, and the expert discovery deadline expired on November 30, 2017. (Docs. 177, 179, 181). Defendant filed its motion for summary judgment on December 28, 2017. (Doc. 213).

II. Analysis of Pending Motion for Summary Judgment

A. Standard of Review

In a motion for summary judgment, a court must view "the facts and any inferences that can be drawn from those facts...the light most favorable to the nonmoving party." Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal quotation marks omitted). "Summary judgment is only appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Id. (quoting Fed.R.Civ.P. 56(c)) (internal quotation marks omitted). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment - rather, all facts must be viewed in the light most favorable to the non-moving party." Id.

The requirement that facts be construed in the light most favorable to the Plaintiff, however, does not mean that the court must find a factual dispute where record evidence contradicts Plaintiff's wholly unsupported allegations. If a moving party has

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carried its initial burden of showing that no genuine issues of material fact remain in dispute, the burden shifts to the non-moving party to present specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Although reasonable inferences must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587, inferences are not to be drawn out of thin air. To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Id., 475 U.S. at 586-587 (citation omitted).

To the extent that Awareness has shown that Luis lacks evidence on an essential element of his claim, the burden shifts to Luis to set forth "specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 587. At this point, Luis may not rely solely on his subjective beliefs or opinions. Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008). He may not simply allude to unspecified records that he believes present some issue for trial, or show only that some hypothetical doubt exists as to the facts, Matsushita, 475 U.S. at 586. Rather, Luis must cite to specific evidence of record. Other than expressing general disagreement, however, Plaintiff here has failed to comply with Rule 56 by citing to any "particular" evidence of record to dispute

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the facts set forth by Awareness. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). Based on the relevant standards, Awareness is entitled to judgment as a matter of law.

B. Threshold Question of Standing and Subject Matter Jurisdiction

Based on the allegations of Plaintiff's complaint, both this Court and the Sixth Circuit determined that Plaintiff Luis had "adequately alleged facts supporting an inference that he is a "person whose ... electronic communication [was] intercepted ... in violation" of the Wiretap Act." Zang, 833 F.3d at 635 (emphasis added).

However, the developed record now presents a serious question concerning Plaintiff's standing to bring any civil claim under 18 U.S.C. § 2520, as well as his standing to bring the two state law claims. The issue of standing is a threshold issue, and is appropriate to re-examine in this instance because it goes to the Court's subject matter jurisdiction. See Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 983 (6th Cir. 2012); see also generally Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95, 118 S.Ct. 1003 (1998)(holding that reviewing courts should raise issue of standing sua sponte where lower court has erroneously assumed its existence); see also United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829 (1936).

Fundamentally, Defendant's unrebutted...

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