Radcliff v. Radcliff

• Decision Date: 04 December 2020
• Docket Number: Civil Action No. 20-3669
• Parties: NINA SINGH RADCLIFF, Plaintiff, v. KRISTEN RADCLIFF, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

NINA SINGH RADCLIFF, Plaintiff, v. KRISTEN RADCLIFF, et al., Defendants.

Civil Action No. 20-3669

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

December 4, 2020

OPINION

APPEARANCES:

THOMAS SCOTT HARTY

WILLIAMS LOPATTO & HARTY PLLC

89 N. HADDON AVENUE

SUITE D

HADDONFILED, NJ 08033

Counsel for Plaintiff

ALAN C. MILSTEIN

JEFFREY P. RESNICK

SHERMAN, SILVERSTEIN, KOHL,

ROSE & PODOLOSKY, PC

EAST GATE CORPORATE CENTER

308 HARPER DRIVE

SUITE 200

MORRESTOWN, NJ 08057

Counsel for Defendant Kristen Radcliff

JOHN L. SLIMM

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN, PC

15000 MIDLANTIC DR.

SUITE 200

P.O. BOX 5429

MOUNT LAUREL, NJ 08054

Counsel for Defendants Cooper Levenson, P.A. and Richard C. Klein HILLMAN, District Judge

Plaintiff has brought suit against Defendants Kristen Radcliff ("Defendant Radcliff"), Cooper Levenson, P.A. ("Defendant Cooper Levenson"), Richard C. Klein ("Defendant Klein") (collectively the "Defendants"), alleging that, among other things, Defendants violated the Computer Fraud and Abuse Act ("CFAA") by Defendant Radcliff installing a keylogger on Plaintiff's personal computer with full knowledge of his lawyers, Defendants Klein and Cooper Levenson. This matter comes before this Court on Defendant Radcliff's motion to dismiss and Defendants Klein and Cooper Levenson's motion to dismiss. (ECF Nos. 6 and 7). For the reasons stated below, the Court will grant Defendant Radcliff's motion to dismiss and Defendants Klein and Cooper Levenson's motion to dismiss with respect to the CFAA claim. The Court will decline to exercise supplemental jurisdiction over the remaining state law claims.

BACKGROUND

The Court takes its brief recitation of the facts from Plaintiff's Complaint. (ECF No. 1 "Compl."). Plaintiff and Defendant Radcliff were previously married and in 2014, Defendant Radcliff initiated a divorce action in the Superior Court of New Jersey (the "Divorce Action"). (Compl. ¶2). Shortly before separating in July 2013, Defendant Radcliff installed a keylogger on Plaintiff's computer. (Compl. ¶¶5,46). A keylogger is "installed without the user's consent to harvest confidential information and credentials related to bank accounts, email, web-history, primarily for committing fraud." (Compl. ¶6). Information, such as Plaintiff's passwords, emails, attorney/client communication, and work product information, were then forwarded to Defendant Radcliff. (Compl. ¶9). Defendant Radcliff had access to "virtually everything the Plaintiff did online for three years." (Compl. ¶11). Plaintiff explains she never consented to Defendant Radcliff's installation of the keylogger and that it was not until she received a report issued by Lt. Hendrickson (the "Hendrickson Report") in May 2019 when "she learn[ed] of the nature and extent of the malware installed on her computer." (Compl. ¶10). Plaintiff alleges Defendant Radcliff installed the keylogger with the full knowledge of Defendants Klein and Cooper Levenson. (Compl. ¶13). Plaintiff further alleges that during the Divorce Action, documents were produced that were purportedly generated by the Plaintiff. (Compl. ¶15). Defendants Klein and Cooper Levenson never disclosed the existence of the keylogger nor explained they had access to Plaintiff's attorney-client communication and work product. (Compl. ¶21).

Defendants Klein and Cooper Levenson filed their joint motion to dismiss on May 18, 2020. (ECF No. 6). Defendant Radcliff filed his motion to dismiss on May 28, 2020. (ECF No.7). The motions to dismiss have been fully briefed. Therefore, the motions are ripe for adjudication.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this case because it presents a federal question under the CFAA. See 28 U.S.C. § 1331.

B. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In considering a motion under Federal Rule of Civil Procedure 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the pleader. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); see also Philips v. Cty. Of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) ("[I]n deciding a motion under Fed. R. Civ. P. 12(b)(6), [a district court is] . . . required to accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to" the plaintiff). A pleading is sufficient if it contains a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2).

When weighing a motion to dismiss, the Court does not ask"whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims[.]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions.'") (citations omitted).

In applying the Twombly/Iqbal standard, a district court will first "accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusion." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 678). Next, the Court will "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (citing Iqbal, 556 U.S. at 679).

To meet this standard, a "complaint must do more than allege the plaintiff's entitlement to relief." Id.; see also Philips, 515 F.3d at 234 ("The Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of'the necessary element.") (citing Twombly, 550 U.S at 556). The party moving to dismiss under 12(b)(6) "bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

C. Whether Defendant Radcliff Waived his Right to File a Motion to Dismiss

Plaintiff first argues Defendant Radcliff's motion to dismiss is improper because he "expressly waived his right to file a Rule 12(b)(6) motion." (ECF No. 12-1 at 9). In support of this argument, Plaintiff points to the Order of dismissal filed on February 19, 2020 ("Dismissal Order"). (ECF No. 12-6 at 14). The Dismissal Order states that Defendant Radcliff "intends to file an Answer to the Federal action and assert various counterclaims." (ECF No. 12-6 at 14). Defendant Radcliff counters that the Dismissal Order did not even reference a 12(b)(6) motion, did not provide that Defendant Radcliff waived any right to file a 12(b)(6) motion, nor explained that Plaintiff would be shielded from a motion to dismiss. (ECF No. 15 at 4).

"Because a consent order 'embodies the agreement of the parties,' we construe the consent essentially as we would a contract." Samost v. Samost, 641 Fed. Appx. 123, 126 (3d Cir. Nov. 13, 2015) (citations omitted); see also United States v. ITT Cont'l Baking Co., 420 U.S. 223, 236-37 (1975) ("[S]inceconsent decrees and orders have many of the attributes of ordinary contracts, they should be construed basically as contracts . . . ."). Thus, general principles of contract interpretation apply to the question of whether Defendant Radcliff waived his right to file a motion to dismiss.

Courts must "[i]nterpret a contract according to its plain language by reading the document as a whole in a fair and common sense manner so as to match the reasonable expectations of the parties." Illinois Nat. Ins. Co. v. Wyndham Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 2011) (citing Hardy ex rel. Dowdell v. Abdul-Matin, 965 A.2d 1165, 1168-69 (N.J. 2009) ("A basic principle of contract interpretation is to read the document as a whole in a fair and common sense manner."). The Dismissal Order between Plaintiff and Defendant Radcliff fails to state Defendant Radcliff agreed to waive his right to file a Motion to Dismiss under the Federal Rules of Civil Procedure. Here, reading the Dismissal Order in a "fair and common sense manner" leads to the conclusion that Defendant Radcliff did not waive his right to file a motion to dismiss as the Dismissal Order fails to explain Defendant Radcliff is waiving his right to file a motion to dismiss. Plaintiff's focus on the language that Defendant Radcliff intended to file an Answer is not sufficient to suggest Defendant Radcliff was knowingly waiving his right to file a motion to dismiss.

Under New Jersey law, "[w]aiver is the voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003). "An effective waiver requires a party to have full knowledge of his legal rights and intent to surrender those rights." Id. "The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference." Id. "The party waiving a known right must do so clearly, unequivocally, and decisively." Id. "[I]t must be shown that the party charged with waiver knew of his or her legal rights and deliberately intended to relinquish them." Barclays Bank PLC v. 865 Centennial Ave. Assocs. Ltd. Pshp., 26 F. Supp. 2d 712, 719 (D.N.J. June 23, 1998). "The burden of proving waiver is upon the party asserting it." Cacon, Inc. v. Rand Envtl. Servs., No. 2480-04, 2006 WL 2389553, at *3 (N.J. Super. App. Div. Aug. 21, 2006).

Here, Plaintiff appears to contend that Defendant Radcliff relinquished his right to file a motion to dismiss...