Marsh v. Curran

362 F.Supp.3d 320

Timothy MARSH, Plaintiff,

v.Gerald CURRAN, Esq., et al., Defendants.

Civil Action No. 1:18-cv-787

United States District Court, E.D. Virginia, Alexandria Division.

Signed January 25, 2019

Jon D. Pels, The Pels Law Firm, Bethesda, MD, for Plaintiff.

John Elphinstone McIntosh, Jr., Hudgins Law Firm PC, Bernard Joseph DiMuro, Jayna Genti, Miles Jarrad Wright, DiMuroGinsberg PC, Alexandria, VA, for Defendants.

MEMORANDUM OPINION & ORDER

Liam O'Grady, United States District Judge

This matter comes before the Court on Defendants' Motions to Dismiss for Lack of Jurisdiction (Dkts. 38, 40, & 42). The motions were fully briefed and the Court dispensed with oral argument, finding that oral argument would not aid the Court in its decision. For the reasons stated below and for good cause shown, Defendants' Motions to Dismiss (Dkts. 38, 40, & 42) are GRANTED IN PART, DENIED IN PART.

I. BACKGROUND

Plaintiff has sued his wife's lawyers ("Defendant Lawyers") and members of her family (Kristina Hampton, Derek Hampton, and Danielle Richards; collectively "Family Defendants") for allegedly recording Plaintiff's conversations with his attorneys and purported romantic partner. Monika Pawar, and using the contents of those recordings in his underlying divorce proceedings. Am. Compl. ¶¶ 2-3.

Plaintiff's wife, Andrea Marsh, filed for divorce alleging that Plaintiff had committed adultery. Id. ¶ 17. Plaintiff alleges that the Hamptons and his wife worked together to place recording devices in his home, car, and/or phone. Id. ¶ 20. According to Plaintiff, Derek Hampton is "an information security and computer networking specialist" with "access to and expertise in technology and computer software that would enable him to engage in and assist Andrea Marsh and the other Non-Lawyer Defendants in surreptitiously intercepting Plaintiff's private electronic communications." Id. ¶ 20. Plaintiff claims to have viewed numerous emails between his wife and the Family Defendants circulating and describing the contents of his private conversations with others. Id. ¶ 22. Plaintiff also found a journal entitled "Andrea Marsh Journal of Tim's Activities," which appears to be authored by Defendant Richards. Id. ¶¶ 35-38, Ex. E, Ex. F. Plaintiff alleges that "Defendants K Hampton and D Richards, with the assistance and support of Defendant D Hampton, transcribed the contents of the intercepted" communications into the journal and shared the information with each other, Plaintiff's wife, and Defendant Lawyers. Id. ¶ 35.

Plaintiff's wife also sent emails to Defendant Curran, one of her lawyers, describing the intercepted private communications between Plaintiff and his lawyer, and between Plaintiff and the woman with whom he was allegedly committing adultery, Monika Pawar. Id. ¶¶ 24-25, Ex. A (copy of an email). Defendant Lawyers allegedly utilized information gathered from the recordings in the underlying divorce proceeding, such as when questioning Monika Pawar, despite knowing or having notice that their client and her family had illegally wiretapped Plaintiff. Id. ¶¶ 44-60, ¶¶ 73-105, Exs. 8-14.

Plaintiff has also alleged that Defendants shared the contents of his private communications to individuals not associated with his divorce case, including his co-workers, neighbors, friends, and spouses of his business associates. Id. ¶ 69.

During Plaintiff's divorce proceedings, Judge Horne found that the recordings were obtained in violation of a wiretapping statute. Id. ¶ 4, ¶ 33, Ex. B. at 118-19.

Plaintiff further alleges that his wife and Family Defendants illegally viewed and shared his private financial and identifying information. Id. ¶ 27. Plaintiff has produced an email from Defendant Kristina Hampton to one of the Defendant Lawyers describing and attaching some of Plaintiff's financial transactions. Id. ¶ 28, Ex. C. He has also produced an email suggesting that both the Hamptons had viewed Plaintiff's financial transactions. See id. Ex. C at 9.

Plaintiff alleges that all Defendants violated federal and state wiretapping laws, intentionally inflicted emotional distress, and aided and abetted. Id. Counts I, II, V, VI. Plaintiff also alleges that the Hamptons violated Virginia's Computer Crimes Act. Id. Counts III, IV. Finally, Plaintiff has brought a claim for temporary and permanent injunctive relief. Id. Count VII. All Defendants moved to dismiss Plaintiff's Amended Complaint for failure to state a claim.

II. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2) ; Twombly , 550 U.S. at 555, 127 S.Ct. 1955. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court " ‘must accept as true all of the factual allegations contained in the complaint’ and ‘draw all reasonable inferences in favor of the plaintiff.’ " Kensington Volunteer Fire Dep't v. Montgomery County , 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011) ). Accordingly, a complaint may survive a motion to dismiss "even if it appears ‘that a recovery is very remote and unlikely,’ " id. (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ), so long as the complaint states a claim that is "plausible" and not merely "conceivable," Twombly , 550 U.S. at 569, 127 S.Ct. 1955.

III. ANALYSIS

A. Defense of Unclean Hands.

All Defendants argue that Plaintiff is barred from recovery due to unclean hands. Unclean hands is an equitable defense. Burlington Indus. v. Mil liken & Co. , 690 F.2d 380, 388 (4th Cir. 1982). Motions to dismiss under Rule 12(b)(6) do not resolve the applicability of defenses. Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). Hence, Defendants' assertions that Plaintiff has unclean hands do not compel dismissal of Plaintiff's claims.

B. Counts I & II: Wiretapping Claims Against All Defendants.

1. Wiretapping Claims Against Defendant Lawyers.

i. There is No Litigation Privilege or Absolute Immunity to Violations of the Wiretapping Statutes.

Defendant Lawyers argue that the wiretapping claims against them should be dismissed because their alleged use of the contents of the illegal recordings is privileged and entitled to absolute immunity. The Court disagrees.

The plain language of both the federal and the Virginia wiretapping statutes precludes attorneys from using or disclosing illegal recordings, and information derived from such recordings, even in a manner intimately associated with ongoing judicial proceedings. Both statutes prohibit "any person" - which includes attorneys - from intentionally using or disclosing "the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication" in violation of the statutes. 18 U.S.C. § 2511(1) (emphasis added); Va. Code. Ann. § 19.2-62(A) (emphasis added). While both statutes provide for limited exceptions, none of the provided exceptions include use by an attorney in a manner intimately associated with ongoing judicial proceedings. See id. Indeed, both statutes contain a provision prohibiting courts from receiving into evidence any part of intercepted communications or "evidence derived therefrom." 18 U.S.C. § 2515 ; Va. Code. Ann. § 19.2-65. Thus, by their terms, the wiretapping statutes prohibit the use and disclosure of wiretapped communications or information derived from such communications by attorneys in a manner intimately related to judicial proceedings. See United States v. Crabtree , 565 F.3d 887, 888, 891 (4th Cir. 2009) (finding that the federal wiretap statute precluded government attorneys from introducing evidence of intercepted communications and noting that the statute "explicitly applies to private parties as well as government officials"); Nix v. O'Malley , 160 F.3d 343, 352 (6th Cir. 1998) ("We decline ... to immunize attorneys for certain violations of [federal] and Ohio wiretap law" because the "proposed immunity contravenes the plain language of federal and state wiretap statutes."); United States v. Wuliger , 981 F.2d 1497, 1505 (6th Cir. 1992) ("There is nothing in the [federal wiretapping statute] which affords attorneys special treatment.").

The narrow impeachment exception to the wiretapping statutes that courts have recognized, see. e.g. , Culbertson v. Culbertson , 143 F.3d 825, 827-28 (4th Cir. 1998), cannot be extended into a blanket "litigation privilege." In Crabtree , the Fourth Circuit held that the federal wiretapping statute, which has the same language as the Virginia wiretapping statute, "clearly and unambiguously" prohibits a government attorney from introducing evidence derived from an illegal wiretap in a supervised release revocation proceeding. Crabtree , 565 F.3d at 888-89. Because the statutes explicitly apply to "any person," not just government officials, it clearly follows from Crabtree that non-government attorneys also cannot use improperly intercepted communications in court. In reaching its holding in Crabtree , the Fourth Circuit explicitly considered and rejected the argument that the impeachment...