Sewell v. Bernardin

50 F.Supp.3d 204

Chantay SEWELL, Plaintiff

v.Phil BERNARDIN, Defendant.

No. 14–CV–0007.

United States District Court, E.D. New York.

Signed Aug. 2, 2014.

Law Office of Harvey S. Mars, LLC, New York, NY, by Harvey S. Mars, Esq., of Counsel, for Plaintiff.

Certain & Zilberg, PLLC, New York, NY, by Gary Certain, Esq., of Counsel, for Defendant.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On January 2, 2014, the Plaintiff Chantay Sewell (the “Plaintiff”) commenced this action against the Defendant Phil Bernardin (the “Defendant”), who she alleges hacked her American Online (“AOL”) e-mail account (the “AOL Account”) and her Facebook social media account (the “Facebook Account,” and collectively, with the AOL Account, the “Internet Accounts”). In this regard, pursuant to the Computer Fraud and Abuse Act of 2008, 18 U.S.C. § 1030 et seq. (“CFAA”), the Plaintiff alleges that the Defendant intentionally accessed her computer without authorization and obtained her personal information, electronic messages, electronic posts, contacts lists, and other material stored on her Internet Accounts.

The Plaintiff also brings a claim against the Defendant pursuant to the Stored Communications Act, 18 U.S.C. § 2701 et seq. (“SCA”), for unlawful access to stored communications. Lastly, the Plaintiff asserts a trespass to chattels cause of action pursuant to New York State common law.

Presently before the Court is a motion by the Defendant to dismiss the Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6). The Court pauses here to note that the Defendant's submissions use footnotes, which is contrary to this Court's Individual Rule II.A. Notwithstanding this infraction, the Court will consider the Defendant's papers in rendering its decision. However, the Court advises the Defendant's counsel that any future filings that contain footnotes will not be considered by this Court.

For the reasons that follow, the Defendant's motion is granted.

I. BACKGROUND

Unless otherwise stated, the following facts are drawn from the Plaintiff's Complaint and are construed in a light most favorable to the Plaintiff.

A. Factual Background

The Plaintiff is an individual residing in the State of New York, County of Queens. In her opposition to the Defendant's motion to dismiss, the Plaintiff states that in or about 2002, she became involved in a romantic relationship with the Defendant. This relationship lasted about nine years and was terminated in or about 2011.

The Plaintiff maintained private electronic accounts with several internet service providers. Of relevance here, the Plaintiff had an e-mail account with AOL. In addition, she had a social media account with the website Facebook. She was the sole authorized user of these Internet Accounts and maintained private passwords for them. Through the Internet Accounts, the Plaintiff maintained information electronically, including her personal information, electronic messages, electronic posts, and contact lists.

According to the Plaintiff, she did not knowingly provide the Defendant or any other third parties with the means to access the Internet Accounts. In this regard, the Plaintiff never provided the Defendant with the passwords for the Internet Accounts, nor did she authorize him to obtain and/or utilize said passwords.

The Plaintiff alleges that on an unspecified date, the Defendant gained unauthorized access to the passwords for the Internet Accounts while he was at the Plaintiff's home. Then, without permission, the Defendant later used the passwords to access the Internet Accounts. In this regard, on August 1, 2011, the Plaintiff discovered that she could no longer log onto or access the AOL Account because her password had been altered. Similarly, on February 24, 2012, the Plaintiff discovered that she could no longer log onto or access her Facebook Account because her password was altered. The Complaint does not provide further details with respect to the length of time the Plaintiff was denied access to either of the Internet Accounts.

In the Complaint, the Plaintiff alleges that records from Verizon (the “Verizon Records”) indicate that the Internet Accounts, as well as the computer servers on which the Internet Accounts were stored, had been accessed without authorization or permission. In this regard, based on exhibits the Plaintiff submitted with her opposition papers, it appears to the Court that the Plaintiff bases this allegation on the fact that the Verizon Records indicate that the Internet Accounts were accessed from an IP address associated with a computer located at the home address of the Defendant's wife, Tara Bernardin (“Tara”). Thus, the Plaintiff theorizes that the Defendant used his wife's computer to log onto the Internet Accounts and proceeded to their passwords so as to prevent the Plaintiff from accessing them.

The Plaintiff further alleges that without permission or authorization, the Defendant accessed the Plaintiff's Internet Accounts on additional dates beyond August 1, 2011 and February 24, 2012. These other dates include February 12, 2012, February 17, 2012, February 24, 2012, March 24, 2012, and March 26, 2012. According to the Plaintiff, through this unauthorized access of the Internet Accounts, the Defendant obtained access to the Plaintiff's electronic communications and electronic posts, which were in electronic storage. The Plaintiff also claims the Defendant obtained access to other personal and identifying information about her.

In addition, the Plaintiff alleges that Defendant used the Internet Accounts to publically post private information about the Plaintiff and to communicate with third parties while posing as the Plaintiff. For example, on an unspecified date in 2011, she alleges that the Defendant apparently sent an e-mail message from the AOL Account and a Facebook message from the Facebook Account to the Plaintiff's family and friends using the Plaintiff's contacts lists, which she maintained privately within the Internet Accounts. These messages contained malicious statements about the Plaintiff regarding certain sexually transmitted diseases and sexual activities.

Moreover, according to the Plaintiff, the Defendant engaged in a malicious campaign of unlawfully accessing and trespassing into the Internet Accounts and accessing her personal and confidential information, which were contained in the Internet Accounts. As a result of the Defendant's conduct, the Plaintiff claims to have incurred monetary expenses in order to investigate the breaches to the Internet Accounts and to protect them from future unauthorized access.

B. Procedural History

On or about May 23, 2013, in a separate action, the Plaintiff filed suit against the Defendant's wife, Tara, and John Does 1–5, in the Supreme Court of the State of New York, Queens County. The Plaintiff accused Tara of computer fraud and brought the following claims: (1) fraud in connection with computers in violation of the CFAA; (2) unlawful access to stored communications in violation of the SCA; (3) trespass to chattels; and (4) civil conspiracy.

On June 18, 2013, Tara removed the case, entitled Sewell v. Tara Bernardin and John Does 1–5,

13–CV–03458–JS–AKT (“Sewell I ”), to the United States District Court for the Eastern District of New York, and the case was assigned to United States District Judge Joanna Seybert and United States Magistrate Judge A. Kathleen Tomlinson. On September 13, 2013, Tara moved pursuant to Fed. R. Civ. P. 12(c) to dismiss the Plaintiff's complaint on the pleadings. About two weeks later, on September 27, 2013, the Plaintiff notified the Court that (1) she had accepted an offer of judgment by Tara in the amount of $2,250 and (2) she had voluntarily dismissed the action against the John Doe defendants without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(a)(i).

As a result, on October 3, 2013, Judge Seybert entered an order directing the Clerk of the Court to enter judgment in favor of the Plaintiff and mark the case closed. Thereafter, on January 2, 2014, the Plaintiff commenced the present action.

II. DISCUSSION

A. Legal Standard on a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

It is well-established that a complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) only if it does not contain enough allegations of fact to state a claim for 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). In this regard, when deciding a motion to dismiss, a court is required to accept the material facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ; In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). As such, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

However, “although ‘a court must accept as true all of the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ). In addition, the Court may refer “to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [a] plaintiff['s] possession or of which [the] plaintiff[ ] had knowledge and relied on in bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir.1993) ; see also Karmilowicz v. Hartford Fin. Servs. Grp., 494 Fed.Appx. 153, 156 (2d Cir.2012).

B. Legal Standard Under the CFAA

“The CFAA...