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Levin v. ImpactOffice LLC

United States District Court, D. Maryland

July 10, 2017

ANDREW P. LEVIN, JAMES HARD, MELISSA EDWARDS, DANIEL J. CHAMBERLIN and ANGELA DUNHAM, Plaintiffs,
v.
IMPACTOFFICE LLC and OFFICE ESSENTIALS, INC., Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG United States District Judge

         Plaintiffs Andrew P. Levin, James Hard, Melissa Edwards, Daniel J. Chamberlin, and Angela Dunham have filed this action against ImpactOffice LLC and its subsidiary, Office Essentials, Inc. (collectively, "Impact"), seeking a declaratory judgment that the restrictive covenants in any employment agreements they have with Impact are unenforceable. In Count III of the First Amended Complaint, Edwards also alleges a violation of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 (2012). Pending before the Court is Impact's Motion to Dismiss Count III pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Motion is denied.

         BACKGROUND

         Impact is a supplier of office products and services, including office supplies, furniture, printing services, and related goods and services. Edwards was employed as a marketing representative for an affiliate of Impact, George W. Allen, LLC, between 2012 and 2016. She resigned on May 6, 2016 in order to accept a job with W.B. Mason, a competitor of Impact.

         While Edwards was employed by Impact, she purchased a personal cell phone through Impact, paying the entire cost of the phone through deductions from her paychecks. After she resigned, Edwards received a letter from Impact's counsel stating that her cell phone was Impact's property and demanding its return. Edwards deleted all emails that she had stored on the cell phone, including all emails that she had received on the cell phone from her personal Google Gmail email account, and returned the cell phone to Impact on May 23, 2016. After Impact received the cell phone, an unidentified Impact agent used the cell phone to access personal emails in Edwards' Gmail account, which were stored on Google's servers, on at least 40 occasions. Using the cell phone, the Impact agent arranged to forward Edwards' emails from Google's servers to Impact's counsel, including emails "that were sent and received by Ms. Edwards after she had resigned from Impact and emails exchanged between Ms. Edwards and her counsel, which were clearly marked" as privileged and confidential attorney-client communications and work product. Am. Compl. ¶ 93, ECF No. 3. Impact also used the cell phone to delete the emails on Google's servers that would reveal the forwarding of Edwards' emails to Impact.

         On May 26, 2016, Impact filed a lawsuit in the Circuit Court for Prince George's County, Maryland against Edwards and Hard, which was then removed to this Court, alleging that the former employees breached the non-competition and non-solicitation provisions of their employment agreements with Impact. See ImpactOffice LLC et al. v. Hard, et al, No. DKC-16-1675 (D. Md.). Impact voluntarily dismissed the case on August 2. The following day, Edwards, Hard, Chamberlin, and Dunham filed a lawsuit against Impact seeking a declaratory judgment on the same issues. See Hard et al. v. Impact Office LLC et al, No. TDC-16-2751 (D. Md. Aug. 3, 2016), ECF No. 1. Levin filed this lawsuit on August 8, seeking a declaratory judgment and alleging fraud in the inducement. On August 10, Edwards, Hard, Chamberlin, and Dunham voluntarily dismissed their suit and joined this litigation, filing the First Amended Complaint.

         Count III of the First Amended Complaint alleges that Impact intentionally accessed Edwards' emails without authorization, in violation of the Stored Communications Act, 18 U.S.C. § 2701. According to Edwards, at the time of the alleged unauthorized access, the emails were "stored on a facility through which electronic communication service is provided, " within the meaning of the SCA. Am. Compl. ¶ 98. Edwards alleges that as a result of this activity, she is entitled to monetary damages and preliminary, equitable, and declaratory relief. Impact filed a partial Answer and the pending Motion to Dismiss Count III.

         DISCUSSION

         Impact seeks dismissal of Count III pursuant to Federal Rule of Civil Procedure 12(b)(6). It argues that Edwards has failed to state a plausible claim for relief under the SCA because she does not sufficiently allege that the emails were in electronic storage as defined by the SCA. Specifically, Impact contends that Edwards must allege that her emails had not been opened at the time of Impact's alleged access in order to state a claim under the SCA.

         I. Legal Standard

         To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm 'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         II. SCA

          Edwards alleges that Impact is subject to civil liability under the SCA for accessing her personal emails without authorization. See 18 U.S.C. § 2707(a) (providing for a private, civil cause of action for knowing or intentional violations of the SCA). The SCA is violated when a person "intentionally accesses without authorization a facility through which an electronic communication service 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[.]" Id. § 2701(a). "Electronic storage" is defined 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[.]" Id. § 2510(17); see also Id. § 2711(1) (incorporating the definitions in 18 U.S.C. § 2510 for purposes of the SCA).

         Impact argues that Edwards has not sufficiently alleged that the emails were in "electronic storage" as defined by the SCA because she did not allege that the emails were unopened at the time that Impact accessed them. Impact contends that opened emails cannot be in "electronic storage" under either definition of electronic storage. Edwards argues that she is not required to allege that the emails were unopened in order to state a claim under the SCA and, in the alternative, requests leave to amend her claim to set forth additional allegations. Upon consideration of both definitions of "electronic ...


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