Wiest v. E-Fense, Inc.

Decision Date09 February 2005
Docket NumberNo. CIV.A. 04-1201.,CIV.A. 04-1201.
Citation356 F.Supp.2d 604
PartiesChristopher WIEST, Plaintiff, v. E-FENSE, INC., et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

Christopher D. Wiest, Pro-Se, Columbus, OH, for Plaintiff.

William F. Coffield, Esquire, Lankford, Coffield & Reid, Alexandria, for Defense Attorneys.

ORDER

LEE, District Judge.

THIS MATTER is before the Court on Defendants E-Fense, Inc., et al.'s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Mr. Christopher Wiest ("Plaintiff," "Mr. Wiest"), formerly an Air Force Academy cadet whose conviction by a military trial judge was overturned by the United States Court of Appeals for the Armed Forces, alleges claims of libel and invasion of privacy against the defendants for publishing allegedly false and defamatory information on their corporate website. The questions before the Court are (1) whether Mr. Wiest states a claim for defamation when he alleges that Defendants published on their website allegedly incomplete information regarding his court martial and allegedly false information regarding his conduct, (2) whether Mr. Wiest states a claim for statutory invasion of privacy when his name and information about his trial proceedings were placed on Defendants' website, and for common law invasion of privacy under Virginia law, and (3) whether Mr. Wiest states a claim against the employees and officers of Defendant E-Fense, Inc. The Court holds that Mr. Wiest states a claim for defamation under Virginia law because the statements made about him on the E-Fense website are allegedly false, and as to his interactions with military justice, they are not a fair and accurate description of the public record. Mr. Wiest also states a claim for statutory invasion of privacy under Virginia law because the allegations in the complaint meet the requirements of Va.Code Ann. § 8.01-40 (Michie 2004). Mr. Wiest fails to state a claim for common law invasion of privacy because no such cause of action exists in Virginia. Finally, Mr. Wiest states claims against Defendant Andrew Fahey and John Doe Employees 1 through 20 because he alleges they were engaged in an intentional tort against him.

I. BACKGROUND

Plaintiff Christopher Wiest ("Wiest," "Plaintiff"), a cadet at the Air Force Academy, was convicted of one specification of Article 134, Uniform Code of Military Justice [hereinafter "UCMJ"] 10 U.S.C. § 934 (2000), in violation of 18 U.S.C. § 1030(A)(5)(B) (2000), and acquitted of three specifications of Article 134, in violation of 18 U.S.C. § 1030(A)(5)(A). He was sentenced to dismissal and partial forfeitures, and the Air Force Court of Criminal Appeals affirmed the findings and sentence. United States v. Wiest, No. ACM33964, 2002 WL 31235026 (A.F.C.M.R. Sept. 24, 2002). After finding that the military trial judge abused his discretion in denying a continuance request made for the purpose of obtaining civilian counsel, the United States Court of Appeals for the Armed Forces reversed the findings, set aside the sentence and returned the record of trial to the Judge Advocate General for further disposition not inconsistent with its opinion. United States v. Wiest, 59 M.J. 276 (C.A.A.F.2004).

Plaintiff alleges that on and after October 31, 2003, Defendants E-Fense, Inc., Andrew Fahey, an officer and employee of E-Fense, Inc., and John Doe Employees, 1 through 20, employees of E-Fense, Inc. located in Virginia, Colorado or Texas (collectively, "Defendants"), published on their website "false assertions... that he was convicted of a federal felony and engaged in acts that constituted a federal felony." Complaint ¶ 4. Furthermore, Plaintiff alleges that Defendants falsely asserted that he was dishonorably discharged, engaged in illegal "hacking," and was tried and convicted of several sections of the UCMJ and discharged from service as a result. Id. ¶¶ 5-7. Plaintiff attaches to his complaint the August 17, 2004 version of the website stating:

In 1996, the United States Air Force Academy blocked the use of direct Internet relay chatting (IRC) from its cadets. A few months later, around July 1997, Air Force Academy Cadet Christopher Wiest received an email from a friend he used to chat with online, questioning why he hadn't been using IRC. Wiest explained the Academy's new regulations regarding Internet chat, and the friend suggested he attempt telneting in order to get onto IRC.

With that suggestion, and support from his friend, Wiest began to develop his skills as a hacker — breaking into commercial servers to develop artificial accounts and IRC servers. Soon after, the Air Force Office of Special Investigations, having reason to suspect Wiest of his activities, searched his room, seized his PC, and took a written statement from the cadet. Tried for several sections of the UCMJ, Wiest was eventually dishonorably discharged from service.

Complaint, Ex. A. Plaintiff alleges that Defendants published information they knew to be false "by asserting that he was convicted of a federal felony and engaged in acts that constituted a federal felony" and stating that he was "dishonorably discharged from service." Complaint ¶¶ 4-5. Plaintiff alleges that his reputation was damaged by this erroneous information.

On September 14, 2004, Plaintiff sent a letter to Defendants, also attached to his complaint, stating that Mr. Andrew Fahey, an E-Fense, Inc. employee, had "botched the investigation of ... [his] case by failing to follow up material leads, failing to log on with the information given him following my interview to ascertain and establish key facts" and other actions. Complaint, Ex. C. The letter further states that the Court of Appeals for the Armed Forces set aside his court martial on March 16, 2004 and points the reader to a website with the appellate opinion. Id. In addition, Mr. Wiest writes, "I point this information out in light of the fact that you might not have been aware of this information prior to this letter, or prior to publishing or continuing to publish your website," and demands that any and all language concerning him be removed from the website. Id.

On September 20, 2004, a new version of the information under the section entitled "Case History" was published on the E-Fense website. The September 20, 2004 version of the website states:

In 1996, the United States Air Force Academy blocked the use of direct Internet relay chatting (IRC) from its cadets. A few months later, around July 1997, An [sic] Air Force Academy Cadet received an email from a friend he used to chat with online, questioning why he hadn't been using IRC. The cadet explained the Academy's new regulations regarding Internet chat, and the friend suggested he attempt telneting in order to get onto IRC.

With that suggestion, and support from his friend, Wiest began to develop his skills as a hacker — breaking into commercial servers to develop artificial accounts and IRC servers. Soon after, the Air Force Office of Special Investigations, having reason to suspect the cadet of his activities, searched his room, seized his PC, and took a written statement from the cadet. Tried for several sections of the UCMJ, the cadet was eventually discharged from service.

Complaint, Ex. B. Plaintiff alleges that this revised publication, which continues to contain his name and allegedly incorrect information regarding his conduct, status as a member of the military, and how many sections of the UCMJ he was tried for, was also defamatory and "damages his reputation." Complaint ¶ 6.

Based on these facts, Plaintiff alleges four1 causes of action in his complaint: libel and slander, violation of the insulting words statute, statutory invasion of privacy, and common law invasion of privacy. All four counts are alleged against all the defendants: E-Fense, Inc., Mr. Andrew Fahey, an employer and officer of E-Fense, Inc., and John Doe Employees, 1 through 20, employees of E-Fense, Inc. Mr. Wiest seeks compensatory and punitive damages, as well as injunctive relief consisting in ordering Defendants to remove any material referencing him from their website.

Defendants move the Court to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In particular, they assert that Plaintiff's causes of action with respect to defamation are unsupported and conclusory and that Plaintiff fails to adequately identify the statements he claims are false. In addition, argue the defendants, federal courts have found that allegations charged, once filed, become public record and privileged. Mem. P. & A. Supp. Defs.' Mot. Dismiss (hereinafter "Defs.' Mem.") at 4-5 (citing Bull v. Logetronics, 323 F.Supp. 115 (E.D.Va.1971)). Defendants seek to dismiss Plaintiff's claims for invasion of privacy on the basis that what occurs at a trial is public property and publicizing it does not constitute an invasion of privacy. Id. (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) and Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)). Additionally, Defendants argue that Plaintiff fails to state a claim against the employee defendants in their individual capacities because employees of a corporation are only liable for those intentional torts they commit or authorize on behalf of the corporation. Id. at 6 (citing Airlines Reporting Corp. v. Pishvaian, 155 F.Supp.2d 659, 666 (E.D.Va.2001)).

II. DISCUSSION
A. Standard of Review

A Federal Rule of Civil Procedure 12(b)(6) motion should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. FED. R. CIV. P. 12(b)(6); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff...

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