United States District Court, D. Maryland
Paula Xinis United States District Judge
before the Court is a Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6) filed by Defendants COESTERVMS.COM
INC. and Brian Coester. The Court has reviewed the
parties' submissions and rules pursuant to Local Rule
105.6 because no hearing is necessary. For the reasons stated
below, the Defendants' motion is granted in part and
denied in part.
Skapinetz is a real estate appraiser in Atlanta, Georgia. At
all times relevant to this lawsuit, Skapinetz maintained two
email accounts related to his real estate appraisal business,
What's it Worth Appraisal Services, LLC. One account, the
email@example.com (“wiwapp account”), was
exclusively dedicated to Skapinetz's business. ECF No. 1
at ¶ 16-17. The second account, firstname.lastname@example.org,
was used “for his more personal dealings related to
real estate and real estate appraisals.” Id.
at ¶18. The mappraiser14 account was not publicly linked
to Skapinetz and he did not maintain many emails in the
account. Id. at ¶¶ 49 & 50.
email host, Google or Gmail, allows users to personalize
their “security options” to receive notifications
if someone signs onto the account from a new location or
device. Skapinetz opted to use this security feature and
supplied his business telephone number, (404) 421-0055
(“0055 number”), as the contact for notifications
for both the wiwapp and mappraiser14 accounts. Id.
at ¶ 19. The 0055 number is publicly available and an
internet search for it will produce results about Skapinetz
and his appraisal company. Id. at ¶ 20-21.
April 2014 through April 2016, Skapinetz performed real
estate appraisals as a subcontractor for Defendant
CoesterVMS.com Inc. located in Rockville, Maryland.
Id. at ¶¶ 6, 7, 10, 22. Defendant Brian
Coester, a resident of the state of Maryland, is the owner,
principal, and resident agent of CoesterVMS.com Inc.
Id. at ¶¶ 8-13. Shortly after terminating
his business relationship with the Defendants, Skapinetz
learned of a fraud lawsuit that CoesterVMS' former
employees had filed against Defendants. Id. at
¶¶ 24 25. Skapinetz then composed and sent an
“anonymous” email on November 11, 2016 from the
mappraiser14account to a number of his colleagues which
discussed Defendants' lawsuit and their general business
practices. Id. at ¶ 26.
around 11:09 a.m. the same day, Skapinetz received an email
at the mappraiser14 account from
account”), which Skapinetz alleges is an e-mail address
used by Defendant because the domain name
“coesterappraisal.com” is owned by Brian Coester
and Coester Appraisal Services. Id. ¶ 35-36.
The email stated that the sender “will be in touch
soon, I understand that you have an issue with myself and
have decided to email our clients about this and
inappropriately mischaracterizing [sic] the nature of the
suit and also the facutaly [sic] allegations” in the
Defendants' pending lawsuit. Id. at ¶ 42.
This email did not address Skapinetz by name. Id.
after, at about 11:19 a.m., Gmail sent Skapinetz a security
alert which notified him that a device in Maryland using
“Chrome from Windows” had signed into the
mappraiser14 account. ECF No. 1 at ¶27-28. Skapinetz
became concerned because neither he nor any of his devices
were presently located in Maryland. Id. at ¶
15. Between 11:19 a.m. and 12:51 p.m., a device using the
same IP address of 2601:152:4202:5f00:35bb:3cd6:f465:b31d
repeatedly accessed Skapinetz's mappraiser14 and wiwapp
accounts. Id. at ¶ 29. Around 12:22 p.m.,
Skapinetz received a second email from the bcoester account,
stating “Mark - we have been able to verify this is you
. . . Brian.” Id. at ¶ 44.
January 7, 2017, Skapinetz received a message from Defendants
via the social media platform Twitter regarding the anonymous
email. ECF No. 1 at ¶ 71; see also ECF Nos. 1-7
& 1-8. Skapinetz then accused Defendants of hacking into
his email account, to which Defendant Brian Coester replied
that he did not “have a clue what you're talking
about other then [sic] you sent an email to Dave, Dave sent
it to me and I sent it to my IT who said it was you.”
ECF No. 1 at ¶ 75.
April 20, 2017, Skapinetz filed this action for injunctive
relief and damages, alleging violations of the Stored
Communications Act (“SCA”), 18 U.S.C.
§§ 2701(a) & 2707, and asserting common law
claims for trespass to chattels, trespass to land,
conversion, fraud and invasion of privacy. Skapinetz
essentially avers that Defendants hacked into Skapinetz'
mappraiser14 email account, which allowed Defendants to learn
he was the sender of the anonymous email. Id. at
¶56-59. Defendants filed a motion to dismiss on May 24,
2017, arguing that Skapinetz's Complaint fails to state
claims for relief under the SCA and that the court should
decline to exercise supplemental jurisdiction over the
remaining claims. ECF Nos. 9 & 10. Defendants also raise
a number of substantive challenges to Plaintiff's common
law claims. Id.
STANDARD OF REVIEW
reviewing a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), a court must determine whether the
complaint includes facts sufficient to state a claim to
relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Factual allegations
in the complaint are taken as true, but a court need not
credit legal conclusions couched as fact. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must plead
facts to support each element of the claim to satisfy the
standard. See McCleary-Evans v. Maryland Dept. of
Transp., State Highway Admin., 780 F.3d 582, 585 (4th
when a plaintiff alleges fraud, Rule 9(b) of the Federal
Rules of Civil Procedure requires that such claims be pleaded
with particularity. Haley v. Corcoran, 659 F.Supp.2d
714, 721 (D. Md. 2009) (quoting Adams v. NVR Homes,
Inc., 193 F.R.D. 243, 250 (D. Md. 2000); Fed.R.Civ.P.
9(b)). To satisfy this standard, a plaintiff “must, at
a minimum, describe the time, place, and contents of the
false representations, as well as the identity of the person
making the misrepresentation and what he obtained
thereby.” United States ex rel. Wilson v. Kellogg
Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir.
2008) (internal quotation marks and citation omitted).
“These facts are often referred to as the ‘who,
what, when, where, and how' of the alleged fraud.”
Id. (quoting United States ex rel.
Willard v. Humana Health Plan of Tex. Inc., 336 F.3d
375, 384 (5th Cir. 2003)). This requirement affords the
defendants notice of the basis for the claim, safeguards
against frivolous suits, and minimizes the risk of
unwarranted damage to the defendant's reputation.
Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citation omitted). Fraud
allegations that fail to comply with Rule 9(b) must be
dismissed pursuant to Rule 12(b)(6). Id. at 783 n.5.