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Alexander v. Verizon Wireless Services, L.L.C.

United States Court of Appeals, Fifth Circuit

November 13, 2017


         Appeal from the United States District Court for the Western District of Louisiana

          Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

          JENNIFER WALKER ELROD, Circuit Judge

         Matthew Edward Alexander appeals the district court's judgment dismissing his complaint for failure to state a claim against Verizon Wireless Services, L.L.C. under the Stored Communications Act, 18 U.S.C. §§ 2701- 2712. The district court adopted the magistrate judge's report and recommendation stating that Verizon is entitled to statutory immunity and a complete defense because it relied in "good faith" on an officer's representations regarding the existence of an emergency. Because we likewise conclude that Verizon acted in good faith, we AFFIRM.


         In August 2014, around 6:30 a.m., a fire took place at Illie Ray and Christine[1] Nixon's home in West Monroe, Louisiana.[2] The Nixons put out the fire. Around 8:45 a.m., the Nixons called the police to report the fire as an arson. A detective from the Ouachita Parish Sheriff's Department, Gary Gilley, arrived at their home an hour later. The Nixons told Detective Gilley that they believed Matthew Edward Alexander, a former employee of Mr. Nixon's telecommunications company and someone who had previously brought suit against the company, was responsible for the fire. Mr. Nixon gave Detective Gilley the make, model, and license plate number of Alexander's car, Alexander's home address, and Alexander's cell phone number, all of which Mr. Nixon had from when his company employed Alexander.

         Later that day, at 3:00 p.m., Detective Gilley contacted the Law Enforcement Resource Team at Verizon Wireless Services, L.L.C., the service provider for the cell phone number that Mr. Nixon gave Detective Gilley. Detective Gilley spoke with Andrea Cole, a Verizon representative. During the conversation, Detective Gilley told Cole that he needed to know where the subscriber to whom the number belonged had been that day, but not the subscriber's current location.[3] He also mentioned that he was investigating a fire that had been discovered at 6:30 a.m. and that the individual to whom the number belonged was his main lead. Cole told Detective Gilley that, after discussing the alleged arson, she believed the situation met Verizon's guidelines for releasing the information he requested and that she would fax him the appropriate paperwork.

         Cole sent Detective Gilley an "Emergency Situation Disclosure" form, which Detective Gilley filled out and returned to her.[4] The form includes a question asking whether the request "potentially involve[s] the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to the emergency." In response, Detective Gilley checked the box next to "yes." In a box for additional comments, Detective Gilley wrote: "This case is in connection with an Arson, House was set on fire with victims inside." Detective Gilley included his name, badge number, contact information, and title as a "Senior Investigator" with the Ouachita Parish Sheriff's Department. Moreover, he signed the form under a certification stating as follows: "I certify that the foregoing is true and correct and understand that Verizon Wireless may rely upon this form to make an emergency disclosure to my law enforcement agency or governmental entity pursuant to 18 U.S.C. § 2702(b)(8) and § 2702(c)(4)."

         After receiving the completed form, Verizon provided Detective Gilley with the requested information. This included the identity of the subscriber, location information, incoming and outgoing call details, and SMS[5] details. The time period spanned by these records was, as requested by Detective Gilley, from three days before the date of the incident to the "present time, " which was interpreted by Verizon as the time the records were sent around 4:15 p.m. that day. All of the information received from Verizon was non-content information.[6]

         Based in part on the information from Verizon, Alexander was arrested and charged with aggravated arson and two counts of attempted second degree murder.[7] In the criminal proceeding, Alexander moved to suppress the cell phone records obtained from Verizon. A state trial judge granted Alexander's motion, finding that there were no exigent circumstances justifying Detective Gilley's actions in obtaining the records without a warrant. Alexander's criminal proceeding is ongoing.[8]

         Proceeding pro se, Alexander filed a lawsuit against Verizon in federal district court, alleging various violations of the Stored Communications Act (SCA), 18 U.S.C §§ 2701-2711, and seeking $5, 000, 000 in damages. Verizon filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion was referred by the district court to a magistrate judge. After the motion was fully briefed, the magistrate judge issued a report and recommendation in which the judge recommended that the motion be granted. The magistrate judge concluded that, taking all of the facts in Alexander's complaint as true, Alexander's complaint establishes on its face that Verizon is statutorily immune from liability and further entitled to a "good faith reliance" affirmative defense. As such, the magistrate judge concluded that dismissal was proper. The report and recommendation also warned in bolded all caps that a party's failure to timely object to the report would bar that party, except on grounds of plain error, from attacking any unobjected-to portions of the report accepted by the district judge on appeal. Alexander did not file any written objections, and the district court dismissed Alexander's lawsuit with prejudice. Alexander timely appealed the district court's judgment.[9]


         When a party who is warned of the requirement to file timely objections to a magistrate judge's report and recommendation fails to file any such objections, and the magistrate judge's factual findings and legal conclusions are accepted by the district court, our review is for plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded on other grounds by 28 U.S.C. § 636(b)(1). When, however, the district court undertakes an independent review of the record, our review is de novo, despite any lack of objection. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). "This exception to the usual plain-error standard is especially relevant in the context of pro se cases."[10] Fogarty v. USA Truck, Inc., 242 Fed.Appx. 152, 154 (5th Cir. 2007) (unpublished)[11] (citing Douglass, 79 F.3d at 1430).

         The district court here stated in its judgment that it found the magistrate judge's report and recommendation to be "supported by the law and the record in this matter." We have held that similar statements, while potentially "judicial boilerplate, " indicate that the district court conducted an independent review of the record. Guillory, 434 F.3d at 308 n.5 (reviewing the district court's decision de novo where it stated: "Alternatively, an independent review of the record has led this court to conclude that the proposed findings and conclusions are entirely correct."); see also Hatcher v. Bement, 676 Fed.Appx. 238, 241-42 (5th Cir. 2017) (unpublished) ("The district court explicitly stated that it had made 'an independent review of the pleadings, files, and records in this case, ' and, accordingly, even if [the party whose motion was denied] did not file specific written objections, we review the district court's decision de novo."). As such, our review here is de novo.

         When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we apply the same standard as does the district court: A claim will not be dismissed unless the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 469 (5th Cir. 2006). We take all factual allegations as true and construe the facts in the light most favorable to the plaintiff. Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017). "Although dismissal under rule 12(b)(6) may be appropriate based on a successful affirmative defense, that defense must appear on the face of the complaint." Id. (quoting EPCO Carbon Dioxide, 467 F.3d at 470).


         This case does not concern whether the information obtained by Detective Gilley from Verizon can be used against Alexander in any criminal proceeding against him. The state trial court already resolved that question in Alexander's favor. Instead, we are faced with the question of whether Alexander can recover against Verizon through a civil lawsuit under the SCA. The SCA governs the privacy of stored electronic (also referred to as Internet[12]) communications in the United States. See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013) ("The SCA regulates disclosure of stored electronic communications by service providers."); Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash.L.Rev. 1208, 1208 (2004) ("The privacy of stored Internet communications in the United States is governed by a federal statute known as the Stored Communications Act ('SCA')."). Congress passed the SCA as part of the Electronic Communications Privacy Act (ECPA). Kerr, supra, at 1208. Generally, the SCA (1) prohibits unauthorized access to certain electronic communications, see 18 U.S.C. § 2701; (2) restricts service providers from voluntarily disclosing the contents of customer communications or records to certain entities and individuals, see id. § 2702; and (3) permits a governmental entity to compel a service provider to disclose customer communications or records in certain circumstances, see id. § 2703.

         Section 2707(a) creates a cause of action for any person aggrieved by a violation of the SCA. Id. § 2707(a). Section 2707(a) states:

Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or other person aggrieved by any violation of [the SCA] in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the ...

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