Pratt v. Securus Techs.

• Decision Date: 02 November 2021
• Docket Number: 1:20-cv-00295-JDL
• Parties: JEREMY PRATT, et al., Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant.
• Court: U.S. District Court — District of Maine

JEREMY PRATT, et al., Plaintiffs, v. SECURUS TECHNOLOGIES, INC., Defendant.

No. 1:20-cv-00295-JDL

United States District Court, D. Maine

November 2, 2021

ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

JON D LEVY CHIEF U.S. DISTRICT JUDGE.

This case involves allegations that the Defendant, Securus Technologies, Inc., which provides telephone services to several Maine jails, violated federal and state wiretap laws when it recorded attorney-client phone calls made by inmates at those jails. The Plaintiffs are Attorneys Jeremy Pratt Robert J. Ruffner, and John W. Tebbetts, as well as Steven Belleau and Matthew Perry, both of whom were formerly detained in Maine jails. I previously granted Securus's motion to dismiss the Plaintiffs' First Amended Complaint on the ground that it did not allege sufficient factual matter to plausibly establish that Securus acted intentionally, as is required for liability under the wiretap laws (ECF No. 50). The Plaintiffs have filed a Motion for Leave to File a Second Amended Complaint (ECF No. 51), which Securus opposes. For the reasons that follow, I deny the motion.

I. BACKGROUND

The Plaintiffs filed their First Amended Complaint (ECF No. 21) on November 6, 2020, asserting claims under the Federal Wiretap Act, 18 U.S.C.A. §§ 2510-2523 (West 2021), and Maine's Interception of Wire and Oral Communications Act (the “Maine Wiretap Act”), 15 M.R.S.A. §§ 709-713 (West 2021), as well as class allegations. Securus then moved to dismiss the First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6), asserting that the complaint did not state a claim under the federal or state wiretap laws (ECF No. 25). On April 30, 2021, I issued an order granting the Motion to Dismiss (ECF No. 50).^[1]

In their response to the Motion to Dismiss, the Plaintiffs had requested leave to amend if I concluded that their First Amended Complaint did not state a claim. Accordingly, when I granted the Motion to Dismiss, I left the dismissal “subject to the Plaintiffs filing a motion for leave to file a second amended complaint within 10 days.” ECF No. 50 at 15. On May 10, 2021, the Plaintiffs filed their Motion for Leave to File a Second Amended Complaint (ECF No. 51). A hearing on that motion was held on August 31, 2021.

II. PROPOSED SECOND AMENDED COMPLAINT

The following facts are drawn from the Plaintiffs' proposed Second Amended Complaint, as well as from two state and county written policies.^[2] Securus contracts with jails and prisons, including the Aroostook County Jail and other Maine jails, to provide telecommunications services for prisoners. Pursuant to those contracts, Securus records the prisoners' calls.

The proposed Second Amended Complaint states that “Securus purportedly exempts certain calls from its program of intercepting, recording and distributing all inmates' calls” but that “Securus requires attorneys and inmates to jump through a series of hoops to avoid having their calls recorded.” ECF No. 51-1 ¶ 20. The Aroostook County Jail Handbook states, “All calls except to attorneys will be monitored and recorded.” ECF No. 26-2 at 9. It also provides, “Attorney phone numbers are unrecorded. Please provide [a jail officer] with your attorney's number to ensure it is on the private call list.” Id. Similarly, a Maine Department of Corrections policy states, “All telephone calls made on the prisoner phone system, except for privileged calls, may be recorded.” ECF No. 26-1 at 10. It also sets forth the procedures for a prisoner to designate “names and numbers to which the prisoner wishes to make legal telephone calls.” Id. at 4. However, the proposed Second Amended Complaint alleges that “Plaintiff Belleau was never given any handbook, direction, or instructions of any kind . . . that told him how to block the recording of his calls with his attorney” while he was in the Aroostook County Jail. ECF No. 51-1 ¶ 52. The proposed Second Amended Complaint does not mention any other instance in which an inmate was not provided this information.

The Plaintiffs assert that “since July 2019 Securus has recorded over 800 calls between attorneys and their inmate clients at the Androscoggin, Aroostook, Franklin and Somerset county jails, encompassing over 150 inmates and 30 law firms and/or attorneys.” Id. ¶ 25. In the proposed Second Amended Complaint, the Plaintiffs state that “the sheer number” of attorney-client calls that Securus has recorded in Maine jails “demonstrates that Securus'[s] procedures for exempting calls [from recording] are either: (i) inadequate[] to the parties that needed to complete them; or (ii) ineffective even when satisfied.” Id. ¶ 21. The proposed Second Amended Complaint also alleges that Securus “was aware well prior to the events giving rise to this action that the system it uses routinely intercepts . . . calls protected by the attorney-client privilege.” Id. ¶ 19.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) “provides that a party may amend its pleading with ‘the court's leave,' and that ‘[t]he court should freely give leave when justice so requires.'” ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008) (alteration in original) (quoting Fed.R.Civ.P. 15(a)). However, the court may deny leave to amend on the ground, among others, of “futility of amendment.” Id. at 56 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “‘Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).

“In reviewing for ‘futility,' the district court applies the same standard of legal sufficiency as applies to a Rule 12(b)(6) motion.” Id. Under that standard, the court must determine whether the proposed amended complaint “contain[s] sufficient factual matter to state a claim to relief that is plausible on its face.” Rodnguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013) (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). Courts apply a “two-pronged approach” to assess a complaint's adequacy, Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011): First, the court must “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements, ” and, second, the court will “take the complaint's well-pled (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief, ” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Determining the plausibility of a claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Rodriguez-Reyes, 711 F.3d at 53 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

IV. DISCUSSION

Securus argues that the proposed Second Amended Complaint fails to state a claim under the Federal Wiretap Act, 18 U.S.C.A. §§ 2510-2523, or the Maine Wiretap Act, 15 M.R.S.A. §§ 709-713-and is therefore futile-because (1) it does not plausibly allege that Securus acted intentionally, and (2) Securus's conduct falls under exceptions to liability within the wiretap statutes. Because, as I will explain, the proposed Second Amended Complaint does not plausibly allege that Securus acted intentionally, I do not reach Securus's second argument.

1. Legal Framework

As I explained at some length in my previous Order, both federal and Maine wiretap laws prohibit the intentional interception of telephone conversations.^[3] See 18 U.S.C.A. § 2511(1)(a); 15 M.R.S.A. § 710(1). The First Circuit has clarified that the intent requirement “means more than that one voluntarily engaged in conduct or caused a result.” In re HIPAA Subpoena, 961 F.3d 59, 65 (1st Cir. 2020) (quoting In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003)). For purposes of the Federal Wiretap Act, “[a]n ‘intentional' state of mind means that one's state of mind is intentional as to one's conduct or the result of one's conduct if such conduct or result is one's conscious objective.” Id. (alteration in original) (emphasis added) (quoting Pharmatrak, 329 F.3d at 23). So, an interception “is not intentional if it is the product of inadvertence or mistake, ” id. (quoting Pharmatrak, 329 F.3d at 23), and “neither negligence nor gross negligence satisfies the intent element, ” id. at 66. Similarly, it is not enough to show that a defendant “should have known” about the prohibited interceptions. Id.

The First Circuit has recognized, however, that knowledge does matter because the conscious-objective test may be satisfied by “ample circumstantial evidence” indicating that a defendant was aware of interceptions of protected conversations and yet took no remedial action. Id. at 68 (quoting Abraham v. Cnty. of Greenville, 237 F.3d 386, 392 (4th Cir. 2001)). Similarly, other courts have recognized that “interceptions may be considered intentional where a defendant is aware of [a] defect causing interception and takes no remedial action.” In re Google Assistant Priv. Litig., 457 F.Supp.3d 797, 815 (N.D. Cal. 2020); see also Backhaut v. Apple, Inc., 74 F.Supp.3d 1033, 1044 (N.D. Cal. 2014) (concluding that plaintiffs had sufficiently alleged intent by stating that the defendant had been notified of the problem but failed to fix it); Narducci v. Vill. of Bellwood, 444 F.Supp.2d 924, 935 (N.D. Ill. 2006) (“It is enough to be aware that such interception is occurring and to fail to stop it.”).

In my previous Order, I determined that the Plaintiffs' First Amended Complaint did “not plausibly allege that Securus's ‘conscious objective' was to record...