Skapinetz v. Coestervms.Com, Inc.

MARK SKAPINETZ Plaintiff, v. COESTERVMS.COM, INC. et al., Defendants.

Civil Action No. PX-17-1098

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 9, 2018

MEMORANDUM OPINION

Pending before the Court is a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) filed by Defendants COESTERVMS.COM INC. and Brian Coester. The Court has reviewed the parties' submissions and rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons stated below, the Defendants' motion is granted in part and denied in part.

I. BACKGROUND

Mark Skapinetz is a real estate appraiser in Atlanta, Georgia. At all times relevant to this lawsuit, Skapinetz maintained two email accounts related to his real estate appraisal business, What's it Worth Appraisal Services, LLC. One account, the wiwapp@gmail.com ("wiwapp account"), was exclusively dedicated to Skapinetz's business. ECF No. 1 at ¶ 16-17. The second account, mappraiser14@gmail.com, was used "for his more personal dealings related to real estate and real estate appraisals." Id. at ¶18. The mappraiser14 account was not publicly linked to Skapinetz and he did not maintain many emails in the account. Id. at ¶¶ 49 & 50.

Skapinetz's email host, Google or Gmail, allows users to personalize their "security options" to receive notifications if someone signs onto the account from a new location or device. Skapinetz opted to use this security feature and supplied his business telephone number, (404) 421-0055 ("0055 number"), as the contact for notifications for both the wiwapp and mappraiser14 accounts. Id. at ¶ 19. The 0055 number is publicly available and an internet search for it will produce results about Skapinetz and his appraisal company. Id. at ¶ 20-21.

From April 2014 through April 2016, Skapinetz performed real estate appraisals as a subcontractor for Defendant CoesterVMS.com Inc. located in Rockville, Maryland. Id. at ¶¶ 6,7, 10, 22. Defendant Brian Coester, a resident of the state of Maryland, is the owner, principal, and resident agent of CoesterVMS.com Inc. Id. at ¶¶ 8-13. Shortly after terminating his business relationship with the Defendants, Skapinetz learned of a fraud lawsuit that CoesterVMS' former employees had filed against Defendants. Id. at ¶¶ 24 25. Skapinetz then composed and sent an "anonymous" email on November 11, 2016 from the mappraiser14account to a number of his colleagues which discussed Defendants' lawsuit and their general business practices. Id. at ¶ 26.

At or around 11:09 a.m. the same day, Skapinetz received an email at the mappraiser14 account from bcoester@coesterappraisals.com ("bcoester account"), which Skapinetz alleges is an e-mail address used by Defendant because the domain name "coesterappraisal.com" is owned by Brian Coester and Coester Appraisal Services. Id. ¶ 35-36. The email stated that the sender "will be in touch soon, I understand that you have an issue with myself and have decided to e-mail our clients about this and inappropriately mischaracterizing [sic] the nature of the suit and also the facutaly [sic] allegations" in the Defendants' pending lawsuit. Id. at ¶ 42. This email did not address Skapinetz by name. Id.

Shortly after, at about 11:19 a.m., Gmail sent Skapinetz a security alert which notified him that a device in Maryland using "Chrome from Windows" had signed into the mappraiser14 account. ECF No. 1 at ¶27-28. Skapinetz became concerned because neither he nor any of hisdevices were presently located in Maryland. Id. at ¶ 15. Between 11:19 a.m. and 12:51 p.m., a device using the same IP address of 2601:152:4202:5f00:35bb:3cd6:f465:b31d repeatedly accessed Skapinetz's mappraiser14 and wiwapp accounts. Id. at ¶ 29. Around 12:22 p.m., Skapinetz received a second email from the bcoester account, stating "Mark - we have been able to verify this is you . . . Brian." Id. at ¶ 44.

On January 7, 2017, Skapinetz received a message from Defendants via the social media platform Twitter regarding the anonymous email. ECF No. 1 at ¶ 71; see also ECF Nos. 1-7 & 1-8. Skapinetz then accused Defendants of hacking into his email account, to which Defendant Brian Coester replied that he did not "have a clue what you're talking about other then [sic] you sent an email to Dave, Dave sent it to me and I sent it to my IT who said it was you." ECF No. 1 at ¶ 75.

On April 20, 2017, Skapinetz filed this action for injunctive relief and damages, alleging violations of the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701(a) & 2707, and asserting common law claims for trespass to chattels, trespass to land, conversion, fraud and invasion of privacy. Skapinetz essentially avers that Defendants hacked into Skapinetz' mappraiser14 email account, which allowed Defendants to learn he was the sender of the anonymous email. Id. at ¶56-59. Defendants filed a motion to dismiss on May 24, 2017, arguing that Skapinetz's Complaint fails to state claims for relief under the SCA and that the court should decline to exercise supplemental jurisdiction over the remaining claims. ECF Nos. 9 & 10. Defendants also raise a number of substantive challenges to Plaintiff's common law claims. Id.

II. STANDARD OF REVIEW

When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the complaint includes facts sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations in the complaint are taken as true, but a court need not credit legal conclusions couched as fact. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff must plead facts to support each element of the claim to satisfy the standard. See McCleary-Evans v. Maryland Dept. of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).

Further, when a plaintiff alleges fraud, Rule 9(b) of the Federal Rules of Civil Procedure requires that such claims be pleaded with particularity. Haley v. Corcoran, 659 F. Supp. 2d 714, 721 (D. Md. 2009) (quoting Adams v. NVR Homes, Inc., 193 F.R.D. 243, 250 (D. Md. 2000); Fed. R. Civ. P. 9(b)). To satisfy this standard, a plaintiff "must, at a minimum, describe the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (internal quotation marks and citation omitted). "These facts are often referred to as the 'who, what, when, where, and how' of the alleged fraud." Id. (quoting United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 384 (5th Cir. 2003)). This requirement affords the defendants notice of the basis for the claim, safeguards against frivolous suits, and minimizes the risk of unwarranted damage to the defendant's reputation. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citation omitted). Fraud allegations that fail to comply with Rule 9(b) must be dismissed pursuant to Rule 12(b)(6). Id. at 783 n.5.

III. ANALYSIS

a. Stored Communications Act

Skapinetz argues that Defendants are subject to civil liability under the SCA for allegedly accessing his email accounts without authorization. See 18 U.S.C. § 2707(a) (providing for a private, civil cause of action for knowing or intentional violations of the SCA). To sustain a claim under the SCA, a plaintiff must demonstrate that a person intentionally accessed "without authorization a facility through which an electronic communication service is provided" and "thereby obtain[ed], alter[ed], or prevent[ed] authorized access to a wire or electronic communication while it is in electronic storage in such system[.]" Id. § 2701(a). Defendants argue that Skapinetz has failed to plead facts sufficient to aver plausibly that Defendants: (1) accessed Skapinetz's emails while they were in "electronic storage;" as defined by the SCA; (2) intentionally accessed Skapinetz's email accounts; and (3) obtained, altered, or prevented authorized access to Skapinetz's emails. See ECF No. 10 at 4-16. The Court addresses each contention in turn.

The SCA defines "electronic storage" as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.]" 18 U.S.C.A. § 2510(17); see also id. § 2711(1) (incorporating the definitions in § 2510 for purposes of the SCA). Defendants argue that Skapinetz has not sufficiently pled that the emails were in "electronic storage" because he does not allege particular facts as to the nature and status of the particular emails "obtained" by Defendants. See ECF No. 10 at 15. In response, Skapinetz argues that the SCA merely requires unauthorized access to email communications stored on a cloud-based e-mail account, as was thecase here. ECF Nos. 1 at ¶¶ 117, 119 & 14 at 8-11; see Theofel v. Farey-Jones, 359 F.3d 1066, 1077 (9th Cir. 2004) (finding that within the ordinary meaning of § 2510(17)(B)'s terms, emails on the server of an internet service provider for purposes of backup protection are in "electronic storage" as defined by § 2510(17)(B)). Skapinetz also points to a number of courts which have found that a properly stated claim under the SCA does not turn on "whether an email stored on an internet service provider's server has been opened or not." Hoofnagle v. Smyth-Wythe Airport Commission, Case No. 15-8, 2016 WL 3014702 at *10 (W.D. Va. May 24, 2016); see also Pure Power Boot Camp, Inc., et al v. Warrior Fitness Boot Camp, et al, 587 F. Supp. 2d 548, 555-56 (S.D.N.Y. 2008); accord Levin v. ImpactOffice LLC, Case No. TDC-16-2790, 2017 WL 2937938 at *3 (D. Md. Jul 10, 2017) (rejecting plaintiff's argument that "temporary, intermediate storage" includes "all stored...