Skapinetz v. CoesterVMS.com, Inc.

• Decision Date: 24 June 2019
• Docket Number: Civil Action No. 8:17-cv-01098-PX
• Parties: MARK SKAPINETZ, Plaintiff, v. COESTERVMS.COM, INC., et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

MARK SKAPINETZ, Plaintiff,
v.
COESTERVMS.COM, INC., et al., Defendants.

Civil Action No. 8:17-cv-01098-PX

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

June 24, 2019

MEMORANDUM OPINION

Pending before the Court is Plaintiff and Counter-Defendant Mark Skapinetz' motions for summary judgment (ECF Nos. 98 & 100); Defendant and Counter-Plaintiff CoesterVMS.com, Inc. ("CoesterVMS")'s motion for reconsideration (ECF No. 87); counsel for CoesterVMS' motion to withdraw (ECF No. 90); and Skapinetz' requests for attorneys' fees. ECF Nos. 68 & 86. Although several motions have been briefed by each side, the motions for summary judgment and the second request for attorneys' fees went unopposed.¹ No hearing on these motions is necessary. See Loc. R. 105.6. For the following reasons, the Court grants the motions for summary judgment, denies the motion for reconsideration, grants the motion to withdraw, and denies without prejudice the requests for attorneys' fees.

I. Skapinetz' Motions for Summary Judgment

A. Background

At the center of this case is a single email authored by Plaintiff, Mark Skapinetz, about Brian Coester and his business, CoesterVMS. Skapinetz, a real estate appraiser based in Georgia, had performed appraisals as a subcontractor for CoesterVMS, an appraisal management

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company. ECF No. 100-3 at 5. On November 10, 2016, Skapinetz sent a CoesterVMS client an email critical of CoesterVMS, describing the operation as a "criminal and fraudulent company," and attaching documents reflecting ongoing litigation between CoesterVMS and a third party. ECF No. 10-2 at 2. Skapinetz sent the email unsigned, but from his personal, mappraiser14@gmail.com account. Id.; ECF No. 100-2 at 3. The recipient and CoesterVMS client, Finance of America, forwarded the email to Brian Coester with the following message: "Hey Bro because I really like you and I respect you and think you need to see that this mappraiser14@gmail.com is sending me this crap to disparage your name." ECF No. 10-2 at 1.

Coester became concerned about the email and decided to investigate the identity of the author, using the help of a CoesterVMS development contractor. ECF No. 100-3 at 6; ECF No. 100-4 at 2. The contractor identified the last four digits of the telephone number associated with the email address. ECF No. 100-4 at 2. Using the computer located in his office, Coester entered the digits into a CoesterVMS sales database, which generated a list of individuals whose phone numbers included those digits. ECF No. 100-4 at 2. Skapinetz was among those listed. Id. Because of Coester's role as CEO and owner, he was able to access the database that also included the password Skapinetz had used to log into the CoesterVMS online appraiser site. ECF No. 100-3 at 7.

Much to Coester's surprise, he was able to log into Skapinetz' mappraiser14@gmail.com account using the same password. Id.; ECF No. 100-4 at 2. Nothing in the record suggests that in connection with their business relationship, Skapinetz had ever given Coester or CoesterVMS permission to obtain wholesale access to his Gmail account. Once logged in, Coester saw the emails in Skapinetz' account, including emails from the Finance of America appraiser, as well as another individual Robert Scheer, with whom Coester was engaged in ongoing litigation. ECF

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No. 100-3 at 8.

Coester next logged out of the mappraiser14@gmail.com account and attempted access into Skapinetz' business email account, wiwapp@gmail.com. Id. Coester contends that he did so to confirm Skapinetz' identity as author of the disparaging email and to also learn whether Skapinetz possessed any unlawfully obtained confidential and proprietary information related to CoesterVMS. Coester also wanted to learn to what extent Skapinetz sought to harm CoesterVMS, and the nature of his Skapinetz' connection, if any, to Scheer. ECF No. 100-4 at 3.

Coester successfully logged into the wiwapp@gmail.com account using the same password and searched the emails. ECF No. 100-3 at 8; ECF No. 100-1 at 4.² Coester also printed four of Skapinetz' emails. ECF No. 100-3 at 10. Like the mappraiser14@gmail.com account, Skapinetz never gave Coester permission to access this account. ECF No. 100-1 at 4.

Skapinetz received a security alert that his mappraiser14@gmail.com account had been accessed from an unrecognized device in Maryland. ECF No. 100-2 at 3; ECF No. 1-1 at 1. Skapinetz—who lives in Georgia—deleted the entire Gmail account because of security concerns and did not preserve any content in the account prior to deleting it. ECF No. 1-2 at 1; ECF No. 100-2 at 3. Skapinetz, however, continued to use his wiwapp@gmail.com account. Id. at 2. Both email accounts were hosted on web-based email platforms run by Google and used Google's servers. ECF No. 100-2 at 2.

On April 20, 2017, Skapinetz filed suit against Coester and CoesterVMS, alleging violations of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, et seq., and common law claims for trespass to chattels, trespass to land, conversion, fraud, and invasion of privacy. ECF No. 1. After the Court dismissed the trespass to land and fraud claims (ECF Nos. 16 & 17),

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Coester and CoesterVMS filed counterclaims against Skapinetz for tortious interference with contract and economic relations. ECF No. 40. After a protracted discovery process, Skapinetz now seeks summary judgment in his favor on his claims as well as Defendants' counterclaims.

B. Standard of Review

Summary judgment is appropriate when the Court, construing all evidence and drawing all reasonable inferences in the light most favorable to the non-moving party, finds no genuine dispute exists as to any material fact, thereby entitling the movant to judgment as a matter of law. Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011). Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

"In responding to a proper motion for summary judgment," the opposing party "must present evidence of specific facts from which the finder of fact could reasonably find for him or her." Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 840 (D. Md. 2004), aff'd sub nom. Venugopal v. Shire Labs., Inc., 134 F. App'x 627 (4th Cir. 2005) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986); Celotex, 477 U.S. at 322-23)). Genuine disputes of material fact are not created "through mere speculation or the building of one inference upon another." Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)). Where a party's statement of a fact is "blatantly contradicted by the record, so that no reasonable jury could believe it," the Court credits the record. Scott v. Harris, 550 U.S. 372, 380 (2007).

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C. Analysis

1. Stored Communications Act

Skapinetz argues that Coester and CoesterVMS violated the Stored Communications Act ("SCA") when Coester accessed his email accounts. The SCA provides a right of action against anyone who "intentionally accesses without authorization a facility through which an electronic communication is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . ." 18 U.S.C. §§ 2701(a), 2707(a). To prevail under the SCA, Skapinetz must prove that Defendants (1) accessed a system through which electronic communication service is provided without authorization; (2) obtained a wire or electronic communication from the electronic storage system; and (3) acted intentionally. Hately v. Torrenzano, No. 1116CV01143GBLMSN, 2017 WL 2274326, at *6 (E.D. Va. May 23, 2017).

With respect to Coester, the uncontroverted evidence compels summary judgment in Skapinetz' favor. On the first element, Coester admits that he accessed Skapinetz' email accounts without authorization. ECF No. 100-1 at 4. No evidence has been generated to the contrary. Equally uncontroverted, Coester obtained the email communication while it was in electronic storage through Google. ECF No. No. 100-2 at 2. Because Gmail provides users with the ability to send and receive emails, Gmail qualifies as a "facility through which an electronic communication is provided." See 18 U.S.C. § 2510(12) (defining "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce"); 18 U.S.C. § 2711(1); see also Vista Mktg., LLC v. Burkett, 812 F.3d 954, 963-64 (11th Cir. 2016).

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Coester obtained electronic communications while the communications were in electronic storage in such system. Electronic storage encompasses both "storage incidental to transmission" and "backup storage." Hately v. Watts, 917 F.3d 770, 784 (4th Cir. 2019) (quoting H.R. Rep. No. 99-647, at 68) (internal quotation marks omitted); see also 18 U.S.C. §§ 2510(17), 2711(1). Unopened emails stored on a server are being stored incidental to their transmission. See In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497, 512 (S.D.N.Y. 2001) (noting that incidental storage includes "when an email service stores a message until the addressee downloads it"). The same is true for emails previously delivered and opened; they too are "stored for purposes of backup protection." Watts, 917 F.3d at 797.

Coester viewed numerous delivered emails in both accounts, and he printed four emails, including three delivered emails and one sent email. ECF No. 100-3 at 8, 10; ECF Nos. 100-7-10. All of these emails constitute electronic communications stored in such system. Coester's...