Abu v. Dickson

CONLAN ABU and RYAN MOORE, Plaintiffs, v. STANLEY B. DICKSON andDICKSON & ASSOCIATES, PC, Defendants.

Civil Case No. 20-10747

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 22, 2021

Honorable Linda V. Parker

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

This lawsuit arose from a business deal that went sour. Plaintiff Conlan Abu entered into an agreement to purchase certain restaurant assets from The Epicurean Group. Plaintiff Ryan Moore ("Mr. Moore") is a 50% owner of Conlan Abu (collectively "Plaintiffs"). Defendant Stanley Dickson ("Mr. Dickson") was the owner of The Epicurean Group, and he is majority owner of Defendant Dickson & Associates, PC.

During the state court litigation concerning that business dispute, Plaintiffs discovered that Mr. Dickson and Dickson & Associates (collectively "Defendants") had accessed certain emails in Mr. Moore's rmoore@theepicureangroup.com account. In response, Plaintiffs filed the current lawsuit alleging that such access violated federal law. Specifically, in their Complaint, Plaintiffs assert violations of (I) the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; (II) the Federal Wiretap Act, 18 U.S.C. § 2510; (III) the Stored Communications Act, 18 U.S.C. § 2701; and (IV) civil conspiracy.

Defendants have filed a Motion to Dismiss or for Summary Judgment, in which they argue that the Court should abstain and dismiss this action pursuant to the Colorado River doctrine or dismiss the action because Plaintiffs' claims fail. (ECF No. 9.) The motion has been fully briefed. (ECF Nos. 10, 11.) At the Court's request, the parties filed supplemental briefs providing updated information concerning the state court litigation between the parties. (ECF Nos. 12, 13.) The Court is dispensing with oral argument with respect to Defendants' motion. See E.D. Mich. LR 7.1(f).

I. Relevant Facts & Procedural Background

The Epicurean Group is comprised of several catering operations and restaurants. (Compl. ¶ 8, ECF No. 1 at Pg ID 3.) On January 1, 2019, Conlan Abu entered into an Asset Purchase Agreement to buy most of The Epicurean Group's assets. (Mot. Ex. A, ECF No. 9-2 at Pg ID 104-131.) Prior to and following the sale, Dickson & Associates, through its internet technology ("IT") company, Propel Technologies, paid for and acted as the IT administrator for The Epicurean Group email accounts, which contained the "@theepicureangroup.com" domain name. (Massey Decl. ¶¶ 3-4, ECF No. 9-4 at Pg ID 193.) All email accounts with this domain name are hosted under Defendants' tenant account. (Id. ¶ 4.)

After January 1, 2019, Mr. Moore began using the email address rmoore@theepicureangroup.com. Mr. Moore accessed this email account on his laptop. (Moore Decl. ¶¶ 2, 4, ECF No. 10-5 at Pg ID 453-54.) Mr. Moore had purchased Microsoft Outlook licenses in September 2018, one of which he installed on his laptop. (Id.) He added a mailbox in Outlook for his rmoore@theepicureangroup.com email. (Id. ¶ 4.)

Defendants, however, continued to pay the license fees associated with the @theepicureangroup.com accounts after the APA's effective date. (Massey Decl. ¶¶ 4, 5, ECF No. 9-4 at Pg ID 193.) Plaintiffs did not ask Defendants to migrate the accounts or data to Plaintiffs. (Id. ¶ 8, Pg ID 194.) When Plaintiffs or their employees had issues with their @theepicureangroup.com email accounts, they contacted the IT administrator for the entities associated with Mr. Dickson and Dickson & Associates. (Id. ¶¶ 6-7, Pg ID 193.) This individual initially was Chris Godsell, but John Massey subsequently replaced Mr. Godsell. (Id.; Moore Decl. ¶¶ 3, 5, ECF No. 10-5 at Pg ID 454-55). Nevertheless, Mr. Moore states that he never expressly designated Mr. Godsell or Mr. Massey to serve as the "administrator" of his email account, nor did Mr. Moore expressly authorize them to access his email. (Moore Decl. ¶¶ 6-7, ECF No. 10-5 at Pg ID 455.) According to Mr. Moore, Dickson & Associates "was only authorized to help with the 'termination of employees, new hires, creation of new accounts, and resetting passwords.'" (Resp. at 5, ECF No. 10 at Pg ID 371 (quoting Massey Decl. ¶ 7, ECF No. 9-4 at Pg ID 193).)

A dispute arose between the parties to the Asset Purchase Agreement, resulting in Conlan Abu, Mr. Moore, and Mr. Moore's father suing The Epicurean Group, the related businesses, and Mr. Dickson in the Circuit Court for Oakland County, Michigan ("State Court Action").¹ (Mot. Ex. A, ECF No. 9-2.) While the State Court Action was pending, Mr. Massey, at Mr. Dickson's direction, accessed emails to and from Mr. Moore's @theepicureangroup.com address. (Massey Decl. ¶¶ 9, 14, 15, ECF No. 9-4 at Pg ID 194-95.) According to Mr. Massey, while reviewing Mr. Moore's emails, he discovered that certain emails had been deleted. (Id. ¶ 14, Pg ID 195.) In fact, he observed emails being deleted while he was viewing the account. (Id. ¶ 15.)

The alleged destruction of these emails became the subject of a discovery dispute in the State Court Action. (Mot. Exs. D-H, ECF Nos. 9-5 to 9-9.) While litigating the dispute, discovery was obtained regarding Plaintiffs' email systems, servers, and network storage devices (ECF No. 12 at Pg ID 613-14.) Mr. Massey was deposed. (Massey Dep., ECF No. 9-8.) During that deposition, Mr. Massey testified that he had accessed Mr. Moore's @theepicureangroup.com email account, and he explained how he accessed and downloaded data from the epicureangroup.com email server. (Massey Dep. at 54-55, ECF No. 9-8 at Pg ID 233-34.)

As of February 24, 2021, discovery had closed in the State Court Action and dispositive motions were pending. (ECF No. 13 at Pg ID 615.) The parties' supplemental filings do not suggest that any discovery disputes remain unresolved in the State Court Action.

Claiming that Mr. Massey, who was acting at the direction of Defendants, lacked the authority to access Mr. Moore's @theepicureangroup.com email, Plaintiffs filed this federal court action. Plaintiffs assert that the email account was owned and controlled by Mr. Moore, not Defendants. Plaintiffs maintain that Mr. Moore created the account using one of the Microsoft Outlook licenses he obtained when he purchased a Microsoft Office 365 package.

II. Colorado River Doctrine

Defendants first urge the Court to dismiss this action pursuant to the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). In that case, the Supreme Court provided that, "despite the 'virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,' 424 U.S. at 817 .... considerations of judicial economy and federal-state comity may justify abstention in situations involving the contemporaneous exercise of jurisdiction by federal and state courts." Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir. 1998). The principles underlying the Colorado River doctrine "'rest on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Id. (quoting Colorado River, 424 U.S. at 817) (internal quotation marks, citations, and brackets omitted). Colorado River abstention "is only appropriate in extraordinary circumstances." Baskin v. Bath Twp. Bd of Zoning Appeals, 15 F.3d 569, 571 (6th Cir. 1994) (citing Colorado River, 424 U.S. at 817).

The Sixth Circuit has identified two prerequisites for abstention under the Colorado River doctrine. Romine, 160 F.3d at 339-40. First, the court must find that there are parallel and concurrent state and federal actions. Id. at 339. Second, the court must consider several factors:

(1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained ... (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff's rights; (7) the relative progress of the state proceedings; and (8) the presence or absence of concurrent jurisdiction.

Id. at 340-41 (internal citations omitted).

As to the first requirement, "[e]xact parallelism is not required; it is enough if the two proceedings are substantially similar." Id. at 340 (original brackets, quotation marks, and citations omitted). Because the parties were substantially similar and the claims were predicated on the same allegations as to the same material facts, the Romine court found the actions to be parallel even though the federal action included parties not present in the state proceedings. Id.; see also Heitmanis v. Austin, 899 F.2d 521, 528 (6th Cir. 1990). When deciding whether the actions are parallel, a "district court must compare the issues in the federal action to the issues actually raised in the state court action, not those that might have been raised." Baskin, 15 F.3d at 572. Lawsuits "'predicated on the same allegations as to the same material facts,'" may be parallel even if they do not involve identical causes of action. Healthcare Co. Ltd. v. Upward Mobility, Inc., 784 F. App'x 390, 394 (6th Cir. 2019) (citing Romine, 160 F.3d at 340).

Here, the federal and state actions are not parallel. There is "substantial symmetry" between the parties to the two actions. Preferred Care of Delaware, Inc. v. VanArsdale, 676 F. App'x 388, 394 (6th Cir. 2017). However, the two lawsuits are not predicated on the same allegations as to the same material facts. The State Court Action arises from the sale of the Epicurean Group. This federal litigation arises from conduct that arose during discovery in the State Court Action. Even if the state court was previously asked to address that conduct—specifically when deciding whether one of the parties violated the state's discovery rules—the State Court Action in no way...