Children's Hosp. Corp. v. Cakir

183 F.Supp.3d 242

The Children's Hospital Corporation d/b/a Boston Children's Hospital, Plaintiff,

v.Isin Cakir, Defendant.

Civil Action No.: 15-cv-13281

United States District Court, D. Massachusetts.

Signed April 25, 2016

Harvey J. Wolkoff, Elizabeth E. Monnin-Browder, Ropes & Gray, Boston, MA, for Plaintiff.

Christian G. Samito, Samito Law LLC, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

CASPER, United States District Judge

I. Introduction

Plaintiff Children's Hospital Corporation ("Children's Hospital") has filed this action against defendant Isin Cakir ("Cakir") alleging that Cakir is in wrongful possession of the images and data on the laptop computer Cakir used during the course of his employment with Children's Hospital. D. 1. Children's Hospital asserts claims for replevinand conversion. Id. In his answer, Cakir raises a counterclaim for abuse of process. D. 9. Children's Hospital has moved for judgment on the pleadings on both of its claims. D. 12. Children's Hospital also moves to dismiss Cakir's abuse of process counterclaim. Id. For the reasons stated below, the Court DENIES the motion for judgment on the pleadings on Children's Hospital's claims and ALLOWS the motion to dismiss Cakir's counterclaim.

II. Standard of Review

A. Motion to Dismiss

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court conducts a two-step process, García – Catalán v. United States, 734 F.3d 100, 103 (1st Cir.2013), to determine if the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.2012) (internal citation omitted). Reading the complaint as a whole, the Court identifies and disregards the conclusory legal allegations. Garc í a – Catalán, 734 F.3d at 103. The Court accepts factual allegations as true. Id. The Court then determines whether the factual allegations, taken together, present a reasonable inference of liability for the defendant's allegedly wrongful conduct. SeeHaley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011).

The Court will dismiss a pleading that fails to include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To avoid dismissal, a complaint must provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ " García – Catalán, 734 F.3d at 102 (internal citation omitted). "A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id.(alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

B. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is "ordinarily accorded much the same treatment" as a Rule 12(b)(6) motion. Aponte – Torres v. Univ. Of Puerto Rico, 445 F.3d 50, 54 (1st Cir.2006). A motion for judgment on the pleadings "calls for an assessment of the merits of the case at an embryonic stage." Pérez – Acevedo v. Rivero – Cubano, 520 F.3d 26, 29 (1st Cir.2008) (internal citation and quotation marks omitted). As a result, the Court "view[s] the facts contained in the pleadings in the light most favorable to the nonmovant and draw[s] all reasonable inferences therefrom" in its favor. Id.(internal citation and quotation mark omitted). On a Rule 12(c) motion, however, the Court considers the pleadings as a whole, including the answer. SeeAponte – Torres, 445 F.3d at 54–55. Those assertions in the answer that have not been denied and do not conflict with the assertions in the complaint are taken as true. SeeSantiago v. Bloise, 741 F.Supp.2d 357, 360 (D.Mass.2010). The Court is also permitted to consider documents fairly incorporated into the pleadings and facts susceptible to judicial notice as it may do with a Rule 12(b)(6) motion. SeeR.G. Fin. Corp. v. Vergara – Nuñez, 446 F.3d 178, 182 (1st Cir.2006). The Court may not, however, resolve contested facts. See id.(internal citation omitted). Only if those properly considered facts "conclusively establish the movant's point" is the motion for judgment on the pleadings granted. Id.(internal citation omitted). Where material facts are disputed, the Court must deny the motion. Id.

C. Procedural History

This civil action is related to Cabi et al. v. Boston Children's Hospital("Cabi"), an ongoing suit in which Cakir, along with two other plaintiffs, asserts employment discrimination, wrongful termination and retaliation claims against Children's Hospital. Cabi et al. v. Boston Children's Hosp., No. 15–cv–12306–DJC, 161 F.Supp.3d 136, 142–43, 2016 WL 593495, at *1 (D.Mass. Feb. 12, 2016). The plaintiffs in Cabi filed their complaint on June 11, 2015. Id. at *3. Less than three months later, on September 3, 2015, Children's Hospital instituted this action against Cakir. D. 1. Cakir raised a counterclaim for abuse of process in his answer. D. 9. Children's Hospital moves for judgment on the pleadings on its conversion and replevin claims. D. 12. Children's Hospital moves to dismiss Cakir's counterclaim for abuse of process. Id. The Court heard the parties on the pending motion and took the matter under advisement. D. 20.

D. Factual Summary

From October 2010 to February or April 2015, Cakir was employed as a post-doctoral fellow at Children's Hospital. D. 1 ¶ 8; D. 9 at 5. Throughout his employment, Cakir used a laptop to conduct his work ("the Laptop"). D. 1 ¶ 1; D. 9 at 1. As an employee, Cakir was subject to three Children's Hospital policies related to network resources, data storage and data ownership rights. D. 1 ¶¶ 15-17; D. 9 at 2-3; D. 13 at 7-8. At some point after his employment ended, Cakir delivered the Laptop to TechFusion, a third-party computer forensics company. D. 1 ¶¶ 3, 13, 20; D. 9 at 2. TechFusion created a forensic image of the Laptop, capturing all of the data contained on the Laptop. D. 1 ¶¶ 3, 13, 20; D. 9 at 2. Children's Hospital alleges that its employment policies grant Children's Hospital ownership of all of the images on the Laptop including all files, deleted files, hard drives, data and metadata as well as an exact forensic copy of the Laptop ("Laptop Data"). D. 1 ¶ 1. According to Children's Hospital, Cakir instructed TechFusion not to release the Laptop Data to Children's Hospital, D. 1 ¶¶ 3, 24, and continues to refuse to produce the Laptop Data, as imaged by and in the possession of TechFusion. D. 1 ¶ 26.

E. Analysis

A. Children's Hospital is Not Entitled to Judgment on its Conversion Claim (Count I)

Conversion involves "the exercise of dominion or control over the personal property of another." Third Nat. Bank of Hampden Cty. v. Cont'l Ins. Co., 388 Mass. 240, 244, 446 N.E.2d 380 (1983). A plaintiff must show that (1) the defendant intentionally and wrongfully exercised control over property owned or possessed by the plaintiff, (2) the plaintiff was damaged and (3) if the defendant legitimately gained possession under a good-faith claim of right, the plaintiff's demand for the return of the property was refused. SeeEvergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir.1993) (citing Magaw v. Beals, 272 Mass. 334, 172 N.E. 347 (1930) ). Children's Hospital contends that, pursuant to internal policies, Children's Hospital is the sole owner of the Laptop Data, D. 1 ¶ 29, Children's Hospital is entitled to immediate, exclusive and unqualified possession of the Laptop Data, id. and Cakir has wrongfully converted the Laptop Data by refusing to deliver it to Children's Hospital. D. 1 ¶¶ 28-31; D. 13 at 6-9.

Children's Hospital relies upon three policies to establish its ownership of the Laptop Data: Acceptable Use of Computer and Network Resources ("Acceptable Use Policy"), D. 13-2, Participation Agreement for Persons Using the Funds or Facilities of Children's Hospital Boston ("Participation Agreement"), D. 13-1, and Children's Hospital Policy on Inventions and Intellectual Property ("Intellectual Property Policy"). D. 9-1. The parties agree that the Acceptable Use Policy, Participation Agreement and Intellectual Property Policy apply to Cakir. D. 1 ¶ 1; D. 9 at 1-3; D. 13 at 7; D. 14 at 3 & n.1. Cakir concedes that Children's Hospital's "policies govern what [Children's Hospital] owns" and that "items falling within definitions provided by those policies are owned by [Children's Hospital]." D. 14 at 5. The parties, however, contest the limits of Children's Hospital's ownership under these policies. According to Children's Hospital, pursuant to the Participation Agreement and Acceptable Use Policy, Children's Hospital "owns all the data on the Laptop, as well as the exact forensic copy of the Laptop made at ... Cakir's instruction." D. 13 at 2. Conversely, Cakir contends that the Laptop Data contains, in part, personal and privileged communications that are not covered by the policies and Children's Hospital is not entitled to such data. D. 14 at 3-4. The Court reviews the relevant provisions of the policies. The Acceptable Use Policy provides:

CHB provides Computer and Network Resources, including email and use of the Internet, for legitimate business use in the course of your assigned duties. Use of these resources and access to the information on them is a privilege granted to you at the sole discretion of CHB.... Information stored on or transmitted over CHB's Computer and Network Resources (including email) is the sole and exclusive property of CHB, and remains so even when stored on non-CHB equipment and media (such as your personal laptop and/or mobile device).... When a User ends employment or association with CHB, all CHB

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