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Demo v. Kirksey

United States District Court, D. Maryland

November 15, 2018

DEMO, Plaintiff
v.
KIRKSEY, et al., Defendants

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE

         Plaintiff Luke Demo brings suit against Defendants for allegedly placing Global Positioning System (“GPS”) tracking devices on Plaintiff's vehicle and in the diaper bag used for Demo and Defendant Katherine Kirksey's child in common. Now pending before the Court are Defendants' Motions to Dismiss (ECF Nos. 5, 25, 27, 29) and Defendants Donna Rismiller and Rismiller Law Group, LLC (collectively, the “Rismiller Defendants”)'s Motion for Leave to File a Reply. ECF No. 34. The motions are fully briefed and no hearing is necessary. See Loc. R. 105.6. For the reasons that follow, the Court grants in part and denies in part Defendants' Motions to Dismiss and denies the Rismiller Defendants' Motion for Leave to File a Reply.

         I. Background

         Demo and Kirksey are involved in protracted state litigation over the custody and visitation of their minor child. ECF No. 20 ¶ 6. Included in the custody battle are three related domestic violence cases. ECF No. 5-4 at 2, 8. Shortly after the litigation began, Kirksey hired Jared Stern and Stern Strategies International, LLC, (collectively, the “Stern Defendants”) to surveil Demo. ECF No. 20 ¶¶ 7, 15. The Rismiller Defendants, who represent Kirksey in the custody suit, “recommended” the ongoing surveillance of Demo. Id. ¶ 10.

         The Stern Defendants placed a GPS tracking device onto Demo's car and provided monitoring software to Kirksey, which allowed her to track Demo's vehicle. Id. ¶ 8. Kirksey monitored the location of Demo's vehicle from approximately January 2017 through July 2017. Id. ¶ 12. Kirksey was able to track Demo's vehicle as he traveled between his home in Pennsylvania and Maryland, where he would pick up the child for permitted visitation. Id. ¶ 11. Defendants also placed a GPS tracking device in the diaper bag that traveled with the child (who was young enough to need a diaper bag). When the child was with Demo, which occurred at regular intervals consistent with the parents' custody arrangement, Demo's every move, while he had possession of the diaper bag, was shared with Kirksey. Id. ¶ 9. The tracking software for both the diaper bag and vehicle allowed monitoring 24 hours a day, seven days a week for six continuous months.

         In July 2017, Demo discovered the device in the diaper bag and advised Kirksey to stop surveilling him. Id. ¶ 12. On March 9, 2018, Demo filed this action, alleging invasion of a protected privacy interest by intrusion upon seclusion, harassment under the Maryland criminal code, and a violation of the Pennsylvania Wiretap Act. ECF No. 1.

         II. Standard of Review

         In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the well-pleaded allegations are accepted as true and viewed most favorably to the party pursuing the allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above a speculative level.” Id. “‘[N]aked assertions' of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557). “[C]onclusory statements or ‘a formulaic recitation of the elements of a cause of action will not [suffice].'” EEOC v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555).

         When a motion to dismiss is styled in the alternative as a motion for summary judgment, the court may exercise its discretion under Rule 12(d) of the Federal Rules of Civil Procedure to convert the Rule 12(b)(6) motion to one brought pursuant to Rule 56. See Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007); Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D. Md. 2011). In this case, the Court declines to consider the Rismiller Defendants' motion (ECF No. 5) as one for summary judgment and instead will treat it as a motion to dismiss under Rule 12(b)(6).

         III. Analysis

         A. Motions to Dismiss

         As a preliminary matter, the Court must determine which of Defendants' four motions to dismiss are properly before the Court. ECF Nos. 5, 25, 27, 29. Plaintiff argues that the Rismiller Defendants' first Motion to Dismiss (ECF No. 5) was mooted by Plaintiff's Amended Complaint. ECF No. 30-1 at 3. Generally, an amended complaint moots a motion to dismiss the original complaint. Johnson v. Asset Acceptance, LLC, No. GLR-15-538, 2015 WL 8760737, at *1 (D. Md. Dec. 15, 2015). However, where the amended complaint does not resolve the deficiencies alleged in the motion to dismiss, “the Court may consider the motion as addressing the second amended complaint.” Id. Here, the Amended Complaint primarily modifies only one paragraph. ECF No. 20-1 ¶ 10. The vast majority of the Rismiller Defendants' arguments are unaffected by the amendments. The Motion to Dismiss (ECF No. 5), therefore, is not moot.

         Plaintiff also argues that the Rismiller Defendants' second Motion to Dismiss (ECF No. 29) is untimely, as it was filed two days after the deadline established by Federal Rule of Civil Procedure 15(a)(3). The Court agrees. A motion to dismiss an amended complaint must be made “within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading.” Fed.R.Civ.P. 15(a)(3). The court may extend the time to respond “on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). Here, the Rismiller Defendants moved to adopt the other Defendants' Motions to Dismiss (ECF Nos. 25, 27) sixteen days after service of the amended pleading. But the Rismiller Defendants did not move to file after the deadline passed and did not give any reason for the untimely filing. The Court cannot extend the deadline. See Hanlin-Cooney v. Frederick Cty., Md., No. WDQ-13-1731, 2014 WL 576373, at *10 n.31 (D. Md. Feb. 11, 2014). That said, the Court notes that the issues presented in the Rismiller Defendants' second Motion to Dismiss have been fully covered by other motions (ECF Nos. 5, 25, 27); accordingly, striking the untimely pleading visits no prejudice on the Rismiller Defendants. ECF No. 29.[1]

         The Court now turns to the sufficiency of the claims for intrusion upon seclusion, harassment, and violation of the Pennsylvania Wiretap Act.

         i. Intrusion Upon Seclusion (Count I)

         Plaintiff alleges that Defendants unreasonably intruded upon his seclusion by tracking his location through the use of GPS devices. None of the parties have clearly determined which law governs this tort. When a federal court sits in diversity, as it does here, the court “must apply the conflict of laws rules of the forum state-here, Maryland.” Sokolowski v. Flanzer, 769 F.2d 975, 977 (4th Cir. 1985). Maryland applies the doctrine of lex loci delicti, such that when “the events giving rise to a tort action occur in more than one State, ” the court must apply the law of the state where “the last event required to constitute the tort occurred.” Erie Ins. Exch. v. Heffernan, 399 ...


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