Davis v. HDR Inc.

606 F.Supp.3d 898

Carol DAVIS, Plaintiff,

v.HDR INCORPORATED, Defendant.

No. CV-21-01903-PHX-SPL

United States District Court, D. Arizona.

Signed June 8, 2022

Alec M. Leslie, Pro Hac Vice, Joshua D. Arisohn, Pro Hac Vice, Max Stuart Roberts, Pro Hac Vice, Bursor & Fisher PA, New York, NY, Gerald Barrett, Ward Keenan Barrett PC, Phoenix, AZ, Neal J. Deckant, Pro Hac Vice, Bursor & Fisher PA, Walnut Creek, CA, for Plaintiff.

David Michael Morrell, Pro Hac Vice, Jones Day, Washington, DC, John A. Vogt, Pro Hac Vice, Ryan D. Ball, Pro Hac Vice, Jones Day, Irvine, CA, Travis Monroe Wheeler, William Francis Auther, Bowman & Brooke LLP, Phoenix, AZ, for Defendant.

ORDER

Steven P. Logan, United States District Judge Before the Court is Defendant HDR Incorporated's ("Defendant") Motion to Dismiss (Doc. 11), in which Defendant requests that this Court dismiss this action in its entirety. Defendant's Motion has been fully briefed and is ready for review. (Docs. 11, 13 & 14).¹ For the following reasons, Defendant's Motion will be granted.²

I. BACKGROUND

Defendant HDR, Inc. is an architecture and design firm that has designed over 275 jails and prisons. (Doc. 1 at 5). In addition to its architectural services, Defendant offers its clients "strategic communications" services. (Id. at 5–6). These services involve gauging public sentiment and developing media campaigns to help clients manage the risks associated with proposed or existing projects. (Id. ). Plaintiff Carol Davis’ ("Plaintiff") allegations specifically relate to Defendant's "STRATA" service—a surveillance or "social listening" service that gathers social media data with the goal of "gaug[ing] and mitigat[ing] social and political risks before they affect a project." (Id. ). Essentially, Defendant's STRATA service uses social media data to survey, evaluate, and determine trends in public opinion and to identify key influencers and the leadership of potential opposition groups and citizen activists. (Id. at 6–7). This information allows Defendant to track a project's success, identify potential risks, and measure the effectiveness of messaging and communication. (Id. ).

This case involves two Facebook groups: "Ahwatukee411" and "Protecting Arizona's Resources & Children" ("PARC") (collectively, the "Groups"). (Id. at 8–9). Ahwatukee411 is a Facebook group "that enables local residents of the Ahwatukee Foothills area to privately discuss issues concerning the community." (Id. at 7–8). The group was formed around December 2014 and has approximately 32,400 members. (Id. ). PARC is a Facebook group that was "formed to protest the construction of a highway that cuts through the Moahdak Do'ag Mountain (South Mountain) ... [and] enables its members to privately discuss local issues." (Id. at 8). The group was formed around 2016 and has approximately 930 members. (Id. ). Both Ahwatukee411 and PARC have "always been" private, closed Facebook groups—meaning only group members can access and see posts made within the Groups. (Id. ). Both Groups require prospective members to undergo a screening process. (Id. ). Ahwatukee411's screening process is "intended to ensure that only residents (i.e. , those with a vested interest in the Ahwatukee community) can join the group." (Id. ). The intent of PARC's screening process is very similar: "to ensure that largely only residents (i.e. , those whose homes would be affected by the construction of the local highway) can join the group." (Id. ).

Plaintiff has been a member of Ahwatukee411 since approximately 2015 and a member of PARC since approximately 2016. (Id. at 9–10). Plaintiff alleges that she privately communicated with other members in the Groups and that such communications concerned topics such as "recommendations for services and debates over local issues, including the construction of a local highway [and its environmental impact,] and potential political corruption." (Id. at 10). Plaintiff alleges that she believed she was only communicating with other Ahwatukee residents or individuals whose interests aligned with the PARC organization's goals. (Id. ).

Since at least 2016, Plaintiff alleges that Defendant infiltrated the Groups and generated "an ‘influencer’ report, an analysis of public sentiment on social media platforms, and a geospatial analysis that placed communities into categories." (Id. at 9). Plaintiff alleges that Defendant "tracked, read, intercepted, analyzed, and otherwise wiretapped and/or accessed in electronic storage" Plaintiff's private posts within the Groups, without her consent. (Id. at 10). On November 10, 2021, Plaintiff filed a Complaint against Defendant on behalf of herself and two purported classes of members of the Groups. (Id. at 10–11). The Complaint alleges four counts:

(i) Interception and disclosure of electronic communications in violation of the Federal Wiretap Act, 18 U.S.C. § 2511 ;

(ii) Manufacture, distribution, possession, and advertising of an electronic communication interception device in violation of the Federal Wiretap Act, 18 U.S.C. § 2512 ;

(iii) A violation of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. ; and

(iv) Common law invasion of privacy/intrusion.

(Id. at 12–16). Defendant now moves to dismiss Plaintiff's entire complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 11).

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). A claim is facially plausible when it contains "factual content that allows the court to draw the reasonable inference" that the moving party is liable. Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. Factual allegations in the complaint should be assumed true, and a court should then "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937. Facts should be viewed "in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Servs., Inc. , 706 F.3d 1017, 1019 (9th Cir. 2013).

III. DISCUSSION

Defendant moves for the dismissal of Plaintiff's claims. (Doc. 11 at 7, 21). Defendant first argues that Plaintiff's communications in the Groups were not private to begin with and are therefore not protected under the law. (Id. at 12–15). Second, Defendant argues that Plaintiff fails to plausibly allege essential elements with respect to each of her four claims. (Id. at 15–21). The Court will first address Plaintiff's claims under the Wiretap Act and the Stored Communications Act. Then, the Court will turn to Plaintiff's common law invasion of privacy claim.

A. Wiretap Act and Stored Communications Act Claims (Counts I–III)

With respect to Plaintiff's Wiretap Act and Stored Communications Act claims, Defendant's primary argument is that Plaintiff's posts in the Groups were not private communications because they were readily accessible to the general public—and that therefore her posts are not protected under the Acts. Defendant additionally argues that Plaintiff failed to plausibly allege the essential elements of her ECPA claims. The Court finds that Plaintiff's posts were not private, protected communications and therefore does not reach Defendant's arguments concerning to the remaining elements of each claim.

In 1986, Congress passed the Electronic Communications Privacy Act ("ECPA") in an effort "to afford privacy protection to electronic communications." Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868, 874 (9th Cir. 2002). The ECPA encompasses both the Wiretap Act, 18 U.S.C. §§ 2510 – 2523, and the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701 – 2713. The former protects communications in transit while the latter protects stored communications.³ Backhaut v. Apple, Inc. , 74 F. Supp. 3d 1033, 1042 (N.D. Cal. 2014). Specifically, the Wiretap Act "provides a private right of action against any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." Id. (internal quotations omitted) (citing § 2511(1)(a) ; § 2520 (creating private right of action)). The SCA, in contrast, provides a private right of action "where a person (1) intentionally accesses (2) a facility through which an electronic communication service is provided (3) without authorization or by exceed[ing] an authorization given and (4) thereby obtains ... a wire or electronic communication (5) while that wire or electronic communication is in electronic storage." Id. at 1041 (internal quotations omitted) (citing § 2701(a) ; § 2707 (creating private right of action)).

Electronic communications which are "readily accessible to the general public" are explicitly exempted from protection under the Wiretap Act and the SCA. § 2511(2)(g). Specifically, the ECPA provides that

[i]t shall not be unlawful under [the Wiretap Act] or [the SCA] for any person—(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.

§ 2511(2)(g) (emphasis added). Although the Ninth Circuit has not addressed the "readily accessible" exception in great depth, the Eleventh Circuit has, and in doing so, found that it is not only an exception to protection under the statute, but also a required showing that is "material and essential to recovery under the [ECPA]." Snow v....