United States District Court, D. Maryland
ANDREW P. LEVIN, JAMES HARD, MELISSA EDWARDS, DANIEL J. CHAMBERLIN and ANGELA DUNHAM, Plaintiffs,
IMPACTOFFICE LLC and OFFICE ESSENTIALS, INC., Defendants.
THEODORE D. CHUANG United States District Judge
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.
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
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.
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.
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.
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.
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).
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
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 ...