Thornton v. Thornton

• Decision Date: 01 October 2020
• Docket Number: CASE NO. 5:20-CV-5018
• Citation: 492 F.Supp.3d 810
• Parties: Jessica M. THORNTON, Plaintiff/Counter-Defendant v. Jody E. THORNTON, Defendant/Counter-Plaintiff
• Court: U.S. District Court — Western District of Arkansas

492 F.Supp.3d 810

Jessica M. THORNTON, Plaintiff/Counter-Defendant

v.Jody E. THORNTON, Defendant/Counter-Plaintiff

CASE NO. 5:20-CV-5018

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed October 1, 2020

George M. Rozzell, IV, Miller, Butler, Schneider, Pawlik, Rozzell PLLC, Stephen Lance Cox, Cabana Law Group, PLLC, Fayetteville, AR, Kristin L. Pawlik, Keith, Miller, Butler, Schneider & Pawlik, PLLC, Rogers, AR, for Plaintiff/Counter-Defendant.

W. Asa Hutchinson, III, the Asa Hutchinson Law Group, PLC, Bentonville, AR, for Defendant/Counter-Plaintiff.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

Before the Court is a Motion for Summary Judgment filed by Defendant Jody Thornton (Doc. 41). Defendant also filed a Memorandum Brief in Support and a Statement of Facts (Docs. 42 & 43). Plaintiff Jessica Thornton filed a Response in Opposition and a separate Statement of Material Facts (Docs. 46 & 47), and Defendant filed a Reply (Doc. 50). Having considered all the materials, the Court finds that Mr. Thornton's Motion for Summary Judgment (Doc. 41) should be GRANTED IN PART AND DENIED IN PART .

I. BACKGROUND

The parties in this case were formerly married and have three children together. They divorced in January 2019, and a case regarding the custody of their children remains ongoing in state court. It is undisputed that between March and July of 2019, Defendant accessed Plaintiff's Yahoo! email account using a smartphone that had been given to the parties’ minor child and read emails exchanged between Plaintiff and her attorney. See Doc. 43, ¶ 1 & Doc. 47-1, p. 5. It is also undisputed that Mr. Thornton threatened to disclose the contents of those emails to "the judge and everyone else," including the couple's children "when the kids are 18," and that he called Plaintiff "fucking selfish," a "selfish POS," and a "shitty human." (Doc. 47-1, pp. 6, 8).

Ms. Thornton's amended complaint seeks relief on five counts: (1) violations of the federal Wiretap Act, 18 U.S.C. § 2511 ; (2) violations of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 ; (3) violations of Arkansas Code § 5-41-202(a) ; (4) invasion of privacy; and (5) tort of outrage. Mr. Thornton moves for summary judgment on each of the five causes of action. As to Count I, he argues that since Ms. Thornton does not allege contemporaneous interception of her communications, the conduct she describes is not the kind of conduct covered by this statute. Next, Defendant argues that to prevail on Count II requires a showing of actual damages, which Plaintiff has not alleged. Additionally, Defendant argues that previously opened emails that remain in an inbox are not in "electronic storage" within the meaning of the SCA. Mr. Thornton next urges the Court to decline to exercise supplemental jurisdiction over the three remaining state law claims if it dismisses the two federal causes of action. In the alternative, he seeks summary judgment as to each of Ms. Thornton's state-law claims as well.

In response, Ms. Thornton asks the Court to defer ruling on Defendant's Motion until she has been able to complete discovery, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. In particular, Plaintiff indicates that she still needs to take Defendant's deposition, and that thereafter she intends to have an expert conduct a forensic examination of the smartphone from which Mr. Thornton accessed Plaintiff's emails. This examination would allow Ms. Thornton to determine whether Defendant's assertion is true that he never opened an email that had not already been opened by Plaintiff and determine exactly how many emails Mr. Thornton accessed without Plaintiff's permission.

II. LEGAL STANDARD

The standard for summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that can be drawn from those facts. Canada v. Union Elec. Co. , 135 F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c) ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Bank of Commerce v. Dow Chem. Co. , 165 F.3d 602 (8th Cir. 1999).

Once the moving party has met its burden, the non-moving party must "come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Matsushita , 475 U.S. at 587, 106 S.Ct. 1348 (quoting Fed. R. Civ. P. 56(c) ). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to survive summary judgment. Anderson v. Durham D&M, L.L.C. , 606 F.3d 513, 518 (8th Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Rather, in order for there to be a genuine issue of material fact that would preclude summary judgment, the non-moving party must produce evidence "such that a reasonable jury could return a verdict for the nonmoving party."

Allison v. Flexway Trucking, Inc. , 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ).

"Although discovery need not be complete before a case is dismissed, summary judgment is proper only if the nonmovant has had adequate time for discovery." Robinson v. Terex Corp. , 439 F.3d 465, 467 (8th Cir. 2006). The nonmoving party may oppose a motion for summary judgment by showing that "for specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d). In such a case, the court may defer or deny the motion or allow time for the nonmoving party to take discovery. Fed. R. Civ. P. 56(d)(1) & (2). "The nonmoving party must make a showing, however, that discovery has been inadequate." Robinson , 439 F.3d at 467.

III. DISCUSSION

A. Count I: Federal Wiretap Act

The Court agrees with Mr. Thornton that there is no genuine dispute as to Plaintiff's claim for relief pursuant to the federal Wiretap Act, 18 U.S.C. § 2511. The Act imposes penalties for any person who "intentionally intercepts [or] endeavors to intercept ... any wire, oral or electronic communication" as well as anyone who intentionally "discloses" or "uses ... the contents" of such communication. 18 U.S.C. § 2511(1)(a), (c), (d). The statute defines "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." 18 U.S.C. § 2510(12). "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4).

"Several circuits have held that the Wiretap Act covers only contemporaneous interceptions—understood as the act of acquiring an electronic communication in transit—rather than the acquisition of stored electronic communications, which is addressed by the Stored Communications Act." Epstein v. Epstein , 843 F.3d 1147, 1149 (7th Cir. 2016) (citing Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113 (3d Cir. 2003) ; United States v. Steiger , 318 F.3d 1039, 1047 (11th Cir. 2003) ; Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868 (9th Cir. 2002) ; Steve Jackson Games, Inc. v. Secret Serv. , 36 F.3d 457 (5th Cir. 1994) ). Though the 8th Circuit has not addressed this issue, Arkansas district courts have also required that the interception be contemporaneous with transmission. See, e.g., Miller v. Meyers , 766 F. Supp. 2d 919, 924 (W.D. Ark. 2011).

In Miller , the defendant, the plaintiff's ex-husband, used a keylogger program to obtain the plaintiff's password and then read her emails and used the information he obtained during the subsequent divorce and child custody proceedings. 766 F. Supp. 2d at 921. The court granted summary judgment for the defendant on the plaintiff's claim under the Wiretap Act because the plaintiff "has raised no genuine issue as to whether Defendant actually intercepted any emails or other information contemporaneously with its transmission , as is required for a finding of liability under 18 U.S.C. § 2511." Id. at 923–24 (emphasis added). The defendant in Miller did not "obtain e-mails contemporaneously with their transmission, and thus, the [Wiretap Act] does not apply." Id. at 924. The court further admonished that "[s]imply because e-mail is not readily susceptible to ‘interception’ does not mean that the courts should bend the language of the statute so it provides an additional avenue of relief to a supposedly aggrieved party." Id. (quoting Cardinal Health 414, Inc. v. Adams , 582 F. Supp. 2d 967, 980–81 (M.D. Tenn. 2008) ).

Here, Ms. Thornton asks the Court to defer ruling on this portion of the Motion because she has not yet had the opportunity to complete discovery "in regard to the dates on and time at which he [accessed and read Plaintiff's emails], and in regard to how those dates and time compare to the [sic] those on and at which the plaintiff accessed (opened) the emails for the first time." (Doc. 46, p. 6). Ms. Thornton anticipates having an expert complete "a forensic examination of the electronic device and email account at-issue." Id. This fails to create a genuine factual dispute regarding liability under the Wiretap Act, which requires that emails be obtained contemporaneously with their transmission. The material question is not, as Plaintiff asserts, whether Mr. Thornton accessed and read the emails before she did, but whether he had a mechanism...