United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
Standard of Review
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).
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).
Motions to Dismiss
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
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.
Court now turns to the sufficiency of the claims for
intrusion upon seclusion, harassment, and violation of the
Pennsylvania Wiretap Act.
Intrusion Upon Seclusion (Count I)
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