Shefts v. John Petrakis, an Individual, Kevin Morgan, an Individual, Heidi Huffman, an Individual, & Access2go, Inc.

• Decision Date: 22 July 2013
• Docket Number: Case No. 10–cv–1104.
• Parties: Jamison J. SHEFTS, an Individual, Plaintiff, v. John PETRAKIS, an Individual, Kevin Morgan, an Individual, Heidi Huffman, an Individual, and Access2Go, Inc., an Illinois corporation, Defendants.
• Court: U.S. District Court — Central District of Illinois

954 F.Supp.2d 769

Jamison J. SHEFTS, an Individual, Plaintiff,

v.John PETRAKIS, an Individual, Kevin Morgan, an Individual, Heidi Huffman, an Individual, and Access2Go, Inc., an Illinois corporation, Defendants.

Case No. 10–cv–1104.

United States District Court, C.D. Illinois.

June 21, 2013.

Order Denying Reconsideration July 22, 2013.

Lane G. Alster, Robert M. Riffle, Elias Meginnes Riffle & Seghetti, Peoria, IL, for Plaintiff.

George Mueller, Mueller Anderson PC, Ottawa, IL, J. Reed Roesler, Jay H. Scholl, Davis & Campbell LLC, Jeffrey Alan Ryva, Stephen M. Buck, Husch Blackwell Sanders LLP, Peoria, IL, for Defendants.

ORDER & OPINION

JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Defendant Kevin Morgan's Motion for Summary Judgment as to Plaintiff's claims against him under Count I of the Amended Complaint. (Doc. 273). For the reasons stated below, the Motion is granted. In addition, the Court herein clarifies the current status of Count III of the First Amended Complaint.

Legal Standard

Summary judgment should be granted where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Discussion

In his First Amended Complaint, Plaintiff claims that Defendants violated the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, the Illinois Eavesdropping Statute, 720 Ill. Comp. Stat.. § 5/14–1 et seq., and the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 by intercepting, monitoring, and/or accessing (1) his Access2Go-provided email account, (2) his Yahoo! web-based email account, and (3) his text messages on his Blackberry device.¹ The Court has resolved a number of these claims through Motions for Summary Judgment, such that the only claims that remain in question are:

Count I: ECPA

—Whether Access2Go authorized Defendants' interception of Plaintiff's Access2Go email such that the interception was in the ordinary course of Access2Go's business

—Whether Plaintiff consented to interception of either the Access2Go or Yahoo! email accounts

Count II: Illinois Eavesdropping Statute

—Whether Plaintiff had a reasonable expectation of privacy in any of the communications

Count III: SCA

—Whether Defendants accessed Plaintiff's Yahoo! email

The instant Motion for Summary Judgment addresses Plaintiff's claims under Count I against Defendant Morgan. As discussed further below, throughout this litigation the claims against Defendant Morgan have revolved around theories of “secondary” liability; Plaintiff has alleged that Morgan directed the other Defendants to engage in the various forms of monitoring alleged. The Court has had occasion to mention this “secondary” liability in other Orders, and has assumed, because neither party disputed it, that such liability could be available; the Court has never addressed the question now at issue, whether the ECPA actually provides for “secondary” civil liability.² This Order will also address the status of the remaining claim under Count III, as Plaintiff's intentions regarding this claim have been unclear.

I. Nature of Defendant Morgan's Motion for Summary Judgment

Responding to Defendant Morgan's Motion for Summary Judgment, Plaintiff first complains that Defendant Morgan has failed to include within his Motion for Summary Judgment a list of undisputed material facts as required by Local Rule 7.1(D), and argues that the Motion should be denied because of this “violation.” Defendant responds by pointing out that he raises only a pure legal question of statutory interpretation, to which no facts are material. The Court agrees that no facts are material to the determination of whether “procurement” is a violation of the ECPA. Whether the ECPA includes civil “procurement” liability does not require any consideration of how such “procurement” might have occurred in this case, or of any other facts particular to this case. Summary judgment is an appropriate vehicle for the resolution of legal questions. See Local 1239, Intern. Broth. of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, 9 F.Supp.2d 901 (N.D.Ill.1998) (deciding question of statutory construction on summary judgment with no reference to particular facts of case); see also Peavy v. WFAA–TV, Inc., 221 F.3d 158, 168 (5th Cir.2000) (“Whether the [ECPA] authorizes a private civil action for procurement is a legal issue of statutory interpretation, which requires no presentation of evidence.”).

Local Rule 7.1(D) does not require a party moving for summary judgment to vainly list a group of immaterial facts in order to meet some technical requirement; indeed, the Rule requires the listing only of “each undisputed material fact which is the basis for the motion for summary judgment” (emphasis added), and notes that “[m]aterial facts are only those facts which bear directly on the legal issue raised by the motion.” If the Motion is not based on a particular factual situation and the Court's decision does not require the consideration of any facts, as in the case of a pure question of statutory interpretation, then no facts should be listed.³ Defendant therefore did not err in choosing not to list any “undisputed material facts.”

II. Whether the ECPA Includes Civil “Procurement” Liability

As explained above, Plaintiff alleges that Defendant Morgan violated the ECPA by directing others to intercept his communications; § 2511(1) of the ECPA provides that it is a violation of the statute to “procure” a person to unlawfully “intercept” communications.⁴ Defendant Morgan's Motion for Summary Judgment argues that the ECPA's civil remedy provision, § 2520, does not contemplate such “procurement” liability for civil defendants, and so he should be granted summary judgment as to this portion of Plaintiff's case against him. The Court has determined that the statutory language, clear weight of persuasive authority, and legislative history indicate that a civil plaintiff may not recover under the ECPA for a defendant's “procurement” of another to intercept the plaintiff's communications.

Prior to 1986, § 2520 provided:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person [damages, attorney's fees, and costs].

18 U.S.C. § 2520 (1970) (emphasis added). In 1986, though, Congress amended the statute so that it now reads:

[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

18 U.S.C. § 2520(a). The clause “or procures any other person to intercept, disclose, or use such communications” was removed from the portion of the statute providing a civil remedy. Plaintiff claims that this alteration to the statute's text does not affect his ability to recover from Defendant Morgan for “procuring” the interception of his communications, while Defendants argue that the alteration reflects Congress' intent to eliminate such liability.

In Peavy v. WFAA–TV, Inc., the Fifth Circuit, addressing what appeared to be an issue of first impression, looked to the plain text of the statute to determine that the alteration was intended to eliminate the ability to sue one who only “procures” another to intercept a plaintiff's communications. 221 F.3d at 168–69. As that court explained, “[t]he amended provision does not have the ‘procures any other person’ language, extending civil liability to ‘the person or entity which engaged in that violation.’ And, the referenced ‘violation’ is ‘intercepted, disclosed, or intentionally used;’ there is no mention of ‘procures.’ ” Id. at 168–69 (emphases in original). The Fifth Circuit, citing the familiar rule that amendments to statutes are presumed to be meaningful, held that Congress intended to excise civil “procurement” liability from the ECPA. Id. at 169 (citing, inter alia, Stone v. I.N.S., 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)).

Following Peavy, both the Tenth Circuit and the District Court for the District of Columbia agreed that § 2520(a), as amended in 1986, does not impose civil liability on one who merely “procures” another to illegally intercept communications. Kirch v. Embarq Management Co., 702 F.3d 1245, 1246–47 (10th Cir.2012); Gaubatz, 891 F.Supp.2d at 23–24. The Gaubatz court, citing Peavy and several district court cases, engaged in its own analysis of the statutory text and determined that “the plain language of the statute limits civil liability to interception, disclosure, and use.” 891 F.Supp.2d at 24 (citing Peavy v. WFAA–TV, Inc., 221 F.3d 158, 169 (5th Cir.2000); Lonegan v. Hasty, 436 F.Supp.2d 419, 427–28 (E.D.N.Y.2006); Hurst v. Phillips, No. 04–2591 M1/P, 2005 WL 2436712, *3 (W.D.Tenn. Sept. 30, 2005); Gunderson v. Gunderson, No. 02–1078–CVW–ODS, 2003 WL 1873912, *2 (W.D.Mo. Apr. 14, 2003); Buckingham v. Gailor, No. 00–CV–1568, 2001 WL 34036325, *6 (D.Md. Mar. 27, 2001)). The Tenth Circuit has also followed the majority position in “presum[ing] that this deletion [of the ‘procures' clause] was intended to change the statute's meaning.” Kirch, 702 F.3d at 1247.

Both the Gaubatz and Kirch courts, as well as both Plaintiff and Defendant Morgan in this case, recognize that the Eastern District of New York appears to be the lone outlier in interpreting the 1986 amendment to § 2520(a). In Lonegan v. Hasty, that court disagreed with the Peavy in...