Sartori v. Schrodt

424 F.Supp.3d 1121

Jason SARTORI, Plaintiff,

v.Julie SCHRODT, Defendant.

Case No.: 3:18cv204-RV/HTC

United States District Court, N.D. Florida, Pensacola Division.

Signed November 25, 2019

Michael Stanski, Law Office of Michael Stanski, Jacksonville, FL, for Plaintiff.

Larry Arthur Matthews, Raymond Francis Higgins, III, Matthews & Higgins LLC, Pensacola, FL, for Defendant.

ORDER

ROGER VINSON, Senior United States District Judge

The plaintiff, Jason Sartori, filed this lawsuit against his ex-wife, Julie Schrodt, alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030, et seq. (CFAA); the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. (SCA); and his privacy rights under Florida law. The state law claims were dismissed at the pleading stage, and the case proceeded to discovery. Discovery is now closed, and Schrodt has filed a motion for summary judgment on the remaining federal claims (doc. 34) (Def. Mot.). Sartori has filed a response in opposition to the motion (Pl. Resp.), and Schrodt has filed a reply to the response (Def. Reply).

I. Standard of Review

Summary judgment is appropriate if all the pleadings, discovery, affidavits, and disclosure materials on file show that there is no genuine disputed issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to prove the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Summary judgment is inappropriate if a reasonable factfinder evaluating all of the evidence could draw more than one inference from the facts, and if that inference raises a genuine issue of material fact. See, e.g., Allen v. Board of Public Educ. for Bibb County , 495 F.3d 1306, 1315 (11th Cir. 2007) (citations omitted). An issue of fact is "material" if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "genuine" if the record, viewed as a whole, could lead a reasonable factfinder to return a verdict for the non-movant. Id.

In considering a motion for summary judgment, the record must be construed in a light most favorable to the non-movant; all reasonable inferences are drawn in his favor; and his evidence must be believed. See, e.g., Allen , 495 F.3d at 1315. However, statements by counsel made in memoranda are not evidence. See Green v. School Bd. of Hillsborough Cty., Fla. , 25 F.3d 974, 979 (11th Cir. 1994) ; United States v. Smith , 918 F.2d 1551, 1562 (11th Cir. 1990). It follows that attorney arguments alone cannot preclude summary judgment. See Rich v. Dollar , 841 F.2d 1558, 1565 & n.5 (11th Cir. 1988) (reversing denial of summary judgment for defendant where the district court relied on "assertions in the memorandum prepared by Rich's counsel rather than upon the factual showing submitted under oath by Rich"); accord Smith v. Housing Auth. of City of Prichard , 2007 WL 735553, at *6 n.14 (S.D. Ala. 2007) ("These assertions [by the plaintiff in opposition to summary judgment] are unaccompanied by citations to the record, and lack support therein. Of course, mere unsupported representations of counsel do not constitute evidence that may be considered on summary judgment.") (quoting Nieves v. Univ. of Puerto Rico , 7 F.3d 270, 276 n.9 (1st Cir. 1993) ("Factual assertions by counsel in motion papers, memoranda, briefs, or other such self-serving documents, are generally insufficient to establish the existence of a genuine issue of material fact at summary judgment."); Bowden ex rel. Bowden v. Wal-Mart Stores , 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) ("opinions, allegations, and conclusory statements of counsel do not substitute for evidence" on summary judgment)).

Thus, a party opposing summary judgment must point to specific portions in the record where evidence of a genuine disputed issue of fact can be found. See, e.g. , Fed. R. Civ. P. 56(c)(1)(A) (party asserting a fact as genuinely disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"); N.D. Fla. Loc. R. 56.1(F) (stating that a party opposing summary judgment "must include pinpoint citations to the record evidence" to show that there is a genuine disputed issue of fact).

II. Background

The following facts come primarily from Schrodt's sworn affidavit (doc. 35 Ex. 1) (Def. Aff.); excerpts from her deposition (docs. 39 Ex. 1 and 40-1) (Def. Dep.); and excerpts from Sartori's deposition (docs. 35 Ex. 4 and 40-2) (Pl. Dep.). Except where noted, Sartori has not contradicted any of these facts with evidence of his own, so they are taken as undisputed.

At all times relevant, Sartori was an Army officer and member of the 7^th Special Forces Group (the Green Berets) at Eglin Air Force Base, Florida. He was married to Schrodt, and they had three young children. In 2011, Sartori bought a Toshiba laptop computer and kept it at their marital home. Although he would usually take the laptop with him when he went on deployment, it wasn't his personal work computer. Indeed, he testified that he "absolutely" never used it for work ("I had government systems to do that") [Pl. Dep. at 44-45], and he never told Schrodt that she couldn't use it. See id. at 28 ("Q: ... [Y]ou never told your wife, hey, I don't want you using my Toshiba computer, did you? A: No."). In fact, when Sartori was home from deployment, the computer was often kept in the parties' bedroom or spare room with the understanding that Schrodt could use it as needed. See Def. Aff. at ¶ 8; see also Def. Dep. at 112 (testifying that she would use the computer to get directions, look at bank information, or if she "needed to download something"). Because Sartori has not cited evidence to the contrary in his opposition to summary judgment [see Pl. Resp.], it is undisputed that the parties had joint and mutual access to the computer when he was home from deployment.

On or about April 1, 2016, Sartori came home from a three-month deployment. See Def. Aff. at ¶ 5. Shortly after his return, on April 5, 2016, Schrodt logged onto the computer while it was in their bedroom, and she opened the "Skype" program. Id. at ¶¶ 6, 8. Skype is an internet service that allows users to communicate with each other by voice, video, or instant messages. Schrodt logged onto the Skype account by using sign-on credentials that she had created while Sartori was out of the country on a prior occasion. Id. at ¶¶ 6-7. She testified: "I personally set up this Skype account, and used the same login credentials (GoGators!) my then-husband and I typically used in other family computer accounts." Id. ; accord Pl. Dep. at 44 (wherein Sartori acknowledged "I was physically located in Iraq" when Schrodt set up the Skype account).¹

When she logged onto the Skype account, Schrodt discovered sexually explicit photos and transcripts of inappropriate conversations between Sartori and a number of female contacts, some of whom served with him in the Army. See Def. Aff. at ¶ 9. The photos and conversations made clear that Sartori had been having multiple affairs with various woman from 2012 and continuing up to that day. Id. at ¶ 10. Schrodt read and printed out a copy of the Skype transcripts. Id. at ¶¶ 9-11.²

After she viewed and printed the Skype transcripts—but while she was still on the computer—Schrodt went to the web-based email client "Gmail.com" and saw that Sartori had not signed out of his email account. See Def. Aff. at ¶ 12. Because he was still signed into his account, that meant all of his emails—which are usually password-protected—"popped up" and were accessible without a password. Id. ; Def. Dep. at 38 ("I just typed in Gmail and [his emails] came up.... When I typed in Gmail.com, that is what popped up because that particular account had never been logged out of."). Schrodt proceeded to read the emails, at least eight of which were titled "Skype." See Pl. Resp. at 2. Importantly, Sartori had already opened all the emails. See Def. Aff. at ¶ 13.³ There is no claim that Sartori downloaded any of the emails onto the computer itself; rather, it appears he kept them on the Gmail web-based server after they were opened. The emails contained more evidence of his sexual affairs and, also, potential misconduct and violations of military civil and criminal law or regulations. Id. at ¶ 17.

The next day, April 6, 2016, Schrodt hired a divorce lawyer and began divorce proceedings. See Def. Aff. at ¶ 14. She provided her lawyer with a copy of the Skype transcripts at that time. Id. On April 7, 2016, she confronted Sartori and told him what she had found on the laptop, handed him copies of the Skype transcripts, and told him that she was filing for divorce. Id. at ¶ 15. At or around this time, they had a physical altercation and Sartori allegedly battered her (doc. 35 Ex. 2 at 2 n.2). He was arrested and charged in Florida state court with several counts of domestic violence, but those charges were eventually dismissed (nolle prosequi). Id.

Despite learning that Schrodt had accessed the Skype account and his personal Gmail account on April 5^th, Sartori made no effort to change the passwords or log-on information to those accounts. See Def. Aff. at ¶ 16. In fact, he testified at deposition that after she accessed the accounts the first time and learned of his affairs, he didn't change the passwords or block her from the accounts because he wasn't concerned (o...