Sims v. Little Rock Plastic Surgery, P.A.

Decision Date05 August 2020
Docket NumberNO. 4:19-cv-653,4:19-cv-653
PartiesRACHEL SIMS PLAINTIFF v. LITTLE ROCK PLASTIC SURGERY, P.A.; MICHAEL L. SPANN, M.D.; AND KRISTY SPANN DEFENDANTS
CourtU.S. District Court — Eastern District of Arkansas
ORDER

Pending is Defendants' motion to dismiss Plaintiff's second amended complaint for failure to state a claim. (Doc. No. 20). Both a response and a reply have been filed, and the motion is ripe for consideration. For the reasons stated below, the motion is granted in part and denied in part.

Second Amended Complaint

The following factual allegations are taken from Plaintiff's second amended complaint ("SAC") (Doc. No. 19). Plaintiff Rachel Sims, a registered nurse, began working for Defendant Little Rock Plastic Surgery, P.A. (LRPS) on August 8, 2012. Defendant Dr. Michael Spann owns LRPS, and Defendant Kristy Spann is the business manager of LRPS.

As part of her employment, Dr. Spann directed Plaintiff to create a Shutterfly photobook, an ongoing project that he knew would require Plaintiff to "take the photos using her personal phone and transmit them to her personal email, which enabled her to devote after-hours time to work on the project while also utilizing higher quality graphics available on her phone."

During her time at LRPS, LRPS failed to properly compensate her—she was paid in both hourly wages and commissions—and failed to appreciate her or "her outstanding contribution to the clinic." LRSD withheld money from Plaintiff's paycheck without her consent, reduced her work schedule, and altered her commission scale. Furthermore, Plaintiff alleges that Dr. Spann sexually harassed her by making inappropriate comments about her breasts and legs, asking her and another female employee "who is better in bed," and making comments like "I can't say what I want thanks to Matt Lauer."

On June 27, 2019, Plaintiff told Dr. Spann that she was resigning effective July 19th. At some point thereafter, Dr. Spann asked her to sign an "Exit Agreement" that would have required Sims to be subject to liquidated damages. When Plaintiff refused to sign, her end-date was moved up to July 15, 2019. Her last paycheck was about $1,000 less than it should have been.

Immediately after she left LRSD, Defendants began attempting to divert business from Plaintiff and to destroy her professional reputation. First, on August 12, 2019, Dr. Spann and LRPS filed a complaint against her with the Arkansas State Board of Nursing containing false allegations that she had improperly accessed and downloaded private health information of LRPS patients and contacted the patients and shared their information with third parties in violation of HIPAA. That investigation is pending.

Second, on September 13, 2019, Dr. Spann wrote a letter to his patients and others, some of whom had never been patients of Defendants, making these same allegations and more against Plaintiff, knowing the allegations were false. She alleges that while he did not use her name in the letter, "any patient reviewing it would almost certainly be able to identify [her]" given the staff of only four full-time employees and the timing of her leaving LRPS; Plaintiff was contacted by former patients, friends, colleagues, and family members who learned of the statements, connected them to her, and contacted her. Among the false statements made in the letter were the following: "(1) 'at the conclusion' of an investigation into Sim's improper actions, LRPS terminated her employment"; (2) after Sim's employment separation, she had access to patients' confidential information in violation of the law; and (3) Sims obtained "theClinic's log-in information for one of the vendor accounts."

The day the letter was mailed, Kristy Spann sent a press release containing the false and disparaging allegations against Plaintiff which was broadcast by KATV (and published on its social media platforms) and about which Arkansas Money & Politics published an article on its website.

Plaintiff further alleges that in the days before she left LRPS, Defendants accessed her personal email account without her authorization and deleted emails after they were transmitted but before she could read them. Then, months after her employment ended, Defendants took control of her personal Instagram account without her authorization by changing her password and removing all posts to her account. In doing this, they took possession of all Plaintiff's personal photographs as well as those of patients at the clinic where she now works. Defendants thereby improperly accessed her messages after the messages were sent but before Plaintiff reviewed them, preventing her from receiving new messages or assessing stored messages, including those from new patients requesting appointments with her. Plaintiff alleges that all of these actions by Defendants caused her to suffer business losses.

From these factual allegations, Plaintiff makes the following two claims based on federal law: unlawful access to stored communications in violation of 18 U.S.C. §§ 2701 and 2707; and interception and disclosure of electronic communications in violation of 18 U.S.C. §§ 2511 and 2520. Her remaining ten claims are based on state law: defamation, tortious interference with contractual relations or business expectancy, outrage, intrusion upon seclusion, false light, conversion, computer trespass, sexual harassment in violation of Ark. Code Ann. § 16-123-101, et seq., failure to pay last paycheck, and failure to pay all commissions. All the parties are residents of Arkansas; jurisdiction is predicted on the existence of a federal question andsupplemental jurisdiction over the state law claims.

Legal Standard

A complaint must contain "a short and plain statement of the claim that the pleader is entitled to relief" to survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 8(a)(2). The complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests and must also contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do. Id. When considering a motion to dismiss for failure to state a claim, the Court "assumes all facts in the complaint to be true and construes all reasonable inferences from those facts most favorably to the complainant. Minnesota Majority v. Mansky, 708 F.3d 1051, 1055 (8th Cir. 2013).

Federal Claims

Stored Communications Act. First, the Court will address the two federal claims. In Count VII of the SAC, Plaintiff alleges violations of the Stored Wire and Electronic Communications and Transactional Records Access Act (the "Stored Communications Act," or "SCA"), 18 U.S.C. §§ 2701 and 2707. Pursuant to §2701, the Act is violated when someone "intentionally accesses without authorization a facility through which an electronic communication service is provided" or "intentionally exceeds an authorization to access that facility" and, in either instance, "thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage." 18 U.S.C. §2701 (emphasis added); Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 838 (8th Cir. 2015).Section 2707 allows a civil action to be brought for a violation of §2701 when the violation was knowing or intentional.

Electronic storage is defined by the SCA as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (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)(A), (B). In Anzaldua, the Eighth Circuit held that the unsent draft of an email did not qualify as a an electronic communication under the SCA "because the email had not been sent, its storage on the Gmail server was not "temporary, intermediate," and "incidental to the electronic transmission thereof." In so holding, the court cited a case from the First Circuit and one from the Southern District of New York for the proposition that an email that has been sent but not yet retrieved does qualify as an electronic communication in temporary, intermediate storage:

United States v. Councilman, 418 F.3d 67, 81 (1st Cir.2005) (en banc) ("The first category ... refers to temporary storage, such as when a message sits in an e-mail user's mailbox after transmission but before the user has retrieved the message from the mail server."); In re DoubleClick Inc. Privacy Litig., 154 F.Supp.2d 497, 512 (S.D.N.Y.2001) ("[The SCA] only protects electronic communications stored 'for a limited time' in the 'middle' of a transmission, i.e. when an electronic communication service temporarily stores a communication while waiting to deliver it.").

Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 840 (8th Cir. 2015).

Plaintiff alleges that Defendants accessed her Gmail account and altered or deleted emails stored there and also "commandeered" and deleted large portions of her Instagram account. She further alleges that Defendants "received, read, saw, or reviewed" the email and Instagram messages "while they were stored in temporary, intermediate storage incidental to transmission" and before she had read them, and that the communications were "stored for backup protection."For purposes of stating a claim pursuant to Rule 12(b)(6), Plaintiff's allegation suffice, and the motion to dismiss this claim is denied.

Federal Wiretap Act. The second federal claim, asserted in Count VIII of the SAC, is for violations of 18 U.S.C. §§ 2511 and 2520 of the Federal Wiretap Act. Section 2511 forbids a person from intentionally intercepting any...

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