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Hovanec v. Miller

United States District Court, W.D. Texas, San Antonio Division

March 7, 2018

ALISON HOVANEC, Plaintiff,
v.
TRACI MILLER and MOISES LUEVANO, Defendants.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         On this date, the Court considered the Motion to Dismiss filed by Defendant Traci Miller (docket no. 9) and the Motion to Dismiss filed by Defendant Moises Luevano (docket no. 7), and the responses and replies thereto.

         Background

         Plaintiff Alison Hovanec sues Traci Miller and her ex-husband Moises Luevano for violation of the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., violation of the Federal Wiretap Act (“FWA”), 18 U.S.C. § 2511 et seq., violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., violation of the Texas Criminal Wiretap Act, conspiracy to violate those acts, intrusion on seclusion, intentional infliction of emotional distress (against Miller only), and breach of fiduciary duty (against Luevano only). Because Miller's motion to dismiss is filed under Rule 12(b)(6), the Court presumes the facts alleged in the Amended Complaint to be true. Therein, Plaintiff alleges the following:

         Alison Hovanec was married to Moises Luevano on August 31, 2002 and reached a mediated settlement in their divorce on May 14, 2015. During the marriage, they were friends with their neighbor Traci Miller, and from May 2013 to May 2015, Miller worked under Hovanec as a wardrobe consultant/sales person for two companies, Carlisle Etcetera LLC and W by Worth. From May 2015 to spring 2016, the relationship between Hovanec and Miller turned from friendly to somewhat antagonistic. Miller would complain about Hovanec to other wardrobe sales consultants and upper management at Carlisle Etcetera LLC and W by Worth, leading to her termination as the local Director of Business Development for W by Worth in May 2015. In the spring of 2016, Miller encouraged her minor daughter to refrain from socializing with Hovanec's daughter on a few occasions.

         On May 16, 2016 at 12:05 p.m., Hovanec received an email from “Alison Hovanec” from the email address alisontheloser@gmail.com that referred to her as “such as sucker.” Hovanec's mother also received an email from that address entitled, “Your Daughter is dating a married man!” and making disparaging remarks about her, including that she was a loser who was in a “downward spiral” and was not competent or able “to keep a job for more than a few months.” Miller also viewed Hovanec's LinkedIn profile on May 16. That same day, Miller called Carlisle Etcetera to complain about the return of a blouse she purchased from Plaintiff six months earlier. Also that day, Luevano informed Hovanec that Miller had asked to meet with him to allegedly discuss the well-being of Hovanec.

         Hovanec suspected it was Miller who had sent the emails, so she sent an email under the name Roslyn James and the email address roslynjames1954@gmail.com to alisontheloser@gmail.com at 2:21 p.m. to obtain the IP address of the user through a Stat Counter linked to the email. The user of alisontheloser@gmail.com responded and clicked a website link that allowed Hovanec to identify the user as an AT&T U-Verse user with a Mac computer in the vicinity of Hovanec's house at the IP address 108.65.34.232.

         On May 17, in order to obtain Miller's IP address to see if it matched, Hovanec forwarded an email from her true Gmail address to Miller's Gmail address. The email required Miller to click a link to a website to see the forwarded email so that Hovanec could view Miller's IP address, which was identified as 108.65.34.232. Miller clicked on the link twelve times from 12:06 p.m. to 3:33 p.m., and all revealed the same IP address.

         On May 17, 2016 at 3:38 p.m., Hovanec sent another email to Miller that included a preservation of records letter from her attorney. Three minutes later, Hovanec texted Luevano and asked him to call her because Miller “had done something” that Hovanec felt they needed to discuss, but Luevano was dismissive and did not inquire about what Hovanec wanted to discuss or what Miller had done. On May 18, Hovanec determined that Luevano was dismissive because he was already aware of what Miller was doing.

         On May 18, Hovanec made a routine review of her AOL email account, which she had used since 2001, and discovered that all of her 9, 780 emails had been deleted. Many of these emails contained confidential attorney-client communications concerning the divorce proceedings. Although Hovanec and Luevano had reached a Mediated Settlement Agreement on May 14, 2015, they still had not entered a final decree of divorce in May 2016. Hovanec contacted AOL and was informed that Luevano was the primary account holder and she was only a sub-accountholder. Hovanec then sought and obtained records regarding activity on the account and found that Luevano had accessed the account at 5:53 p.m. (after he had deleted the emails) to surreptitiously override the password changes that Hovanec made immediately after she learned that the emails had been deleted so that he could keep her out of her own email account. Hovanec was shocked to learn that Luevano had always possessed the ability to access and make use of her personal and confidential emails as he pleased, and realized that he had been accessing her emails throughout their marriage and during the pendency off their divorce to obtain information.

         In the following months, Hovanec spent a considerable amount of time determining the damage that had been done, including reorganizing her deleted emails and incurring legal expenses in connection with “the computer breach.” In this process, on October 13, 2016, she accessed an old iCloud account to recover some personal emails and photographs that had been placed in her iCloud through her iPhone. In September 2015, Hovanec had terminated use of her iPhone and iCloud because she felt that her information may have been compromised and that Luevano could track her whereabouts. Because she could not recall her password, she contacted Apple and was emailed a link to reset her password and gain access to the iCloud account that she had not accessed for approximately thirteen months.

         Upon opening her iCloud using her old Apple ID email address aliluevano@me.com, Hovanec discovered an email to that address from Google at 10:52 a.m. on May 16 stating that there was a request to add aliluevano@me.com email to “your Google account.” Another email was sent to that address stating that the alisontheloser@gmail.com account had been created at 10:53 a.m. The first email required the user to click a link to “verify” the request to add aliluevano@me.com to the Google account. Plaintiff alleges that Miller accessed her aliluevano@me.com email account to click the link to verify the addition of aliluevano@me.com to the alisontheloser@gmail.com account. Another email was sent to the aliluevano@me.com address on May 17 at 4:28 stating that the Google account alisontheloser@gmail.com was deleted, and “[y]ou received this message because aliluevano@me.com is listed as the recovery email for alisontheloser@gmail.com.” Plaintiff contends that this shows that Miller clicked on the link in the email to verify the addition of aliluevano@me.com to the alisontheloser Gmail account.

         Based on these factual allegations, Hovanec brings claims against Miller and Luevano for violations of the Stored Communications Act, the Federal and Texas Wiretap Acts, the Computer Fraud and Abuse Act, conspiracy, and common-law torts under Texas law.

         The Electronic Communications Privacy Act of 1986 included two pieces of legislation relating to electronic communications[1] - it amended existing wiretap laws in 18 U.S.C. § 2501 et seq. to prohibit interception of electronic communications and it introduced the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq. to address wrongful access to stored electronic communications. Both are criminal statutes that include civil remedies. As discussed by the Fifth Circuit,

The Wiretap Act proscribes “intentionally intercept[ing] any electronic communications.” DIRECTV, Inc. v. Bennett, 470 F.3d 565, 566-67 (5th Cir. 2006); 18 U.S.C. §§ 2511(1); 2520(a). Similarly, the Computer Fraud and Abuse Act prohibits certain intentional or knowing access to a computer without authorization. See 18 U.S.C. § 1030(a)(4)-(5); United States v. Phillips, 477 F.3d 215, 220-21 (5th Cir. 2007) (rejecting defendant's argument that the government presented insufficient evidence to “find him guilty of intentional unauthorized access” under § 1030). Finally, the Stored Communications Act requires that a defendant “intentionally access[ ] without authorization” or “intentionally exceed[ ] an authorization to access” a facility that provides electronic communication service. 18 U.S.C. § 2701(a)(1)-(2); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 459 (5th Cir. 1994) (recognizing that 18 U.S.C. § 2701 prohibits “intentional access, without authorization, to stored electronic communications”).

Larson v. Hyperion Int'l Tech., LLC, 494 F. App'x 493 (5th Cir. 2012).

         Plaintiff filed her Original Complaint on August 14, 2017, which did not include a claim under the SCA. Defendant Luevano filed a motion to dismiss, arguing that all the claims against him must be dismissed and submitted to arbitration. Defendant Miller filed a motion to dismiss all the claims against her for failure to state a claim under Rule 12(b)(6). Plaintiff then filed an Amended Complaint as of right, adding the claim under the SCA[2] (and a related conspiracy claim). Plaintiff also filed a Response to the motion to dismiss, and Miller filed a reply.

         Traci Miller's Motion to Dismiss

         Traci Miller moves to dismiss all claims (except the SCA claim, which was added in the Amended Complaint) against her for failure to state a claim upon which relief can be granted.[3] To the extent Miller has attached exhibits to her motion, the Court disregards them because Rule 12(b)(6) review is confined to the pleadings.

         Federal Wiretap Act and Texas Criminal Wiretap Act

         The Federal Wiretap Act generally prohibits the interception of wire, oral, or electronic communications and provides a civil cause of action for “any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter.” 18 U.S.C. §§ 2511, 2520. Miller contends that neither the action of setting up an email account such as the alisontheloser@gmail.com account nor accessing stored communications on a terminated iCloud storage account are violations of the Federal Wiretap Act or the Texas Criminal Wiretap Act, and moves to dismiss these claims because Plaintiff does not allege that Miller captured data communications during transmission or “in flight” and thus there was no contemporaneous interception of any electronic communication.

         The FWA defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). In Steve Jackson Games, the Fifth Circuit held that “the definition of ‘electronic communication' does not include electronic storage of such communication” and that Congress did not intend for “intercept” to apply to “electronic communications” when those communications are in “electronic storage.” Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 461 (5th Cir. 1994). The Court rejected the argument that a government agent's acquiring an email prior to its delivery and preventing that delivery (by reading and deleting undelivered emails in a bulletin board system that offered the ability to send and receive private email) were intercepted for purposes of the FWA. Rather, the unread emails in the bulletin board system were in “electronic storage.” Id. Once an email is received at the email address, it is stored and is no longer in transit, even if it has not been read. Id.; Speer v. Saenz, No. H-13-1538, 2015 WL 12551069 (S.D. Tex. Feb. 19, 2015). Thus, access to that content is not an interception. Id.[4]

         The FWA's definitions of “electronic communication” and “intercept” are virtually identical to the Texas statute's definitions of those terms, such that Texas courts may look to the cases interpreting the FWA for direction. Chavis v. State, No. 08-10-00026-CR, 2011 WL 3807747, at *5 (Tex. App.-El Paso, Aug. 26, 2011, pet. ref'd). “Texas courts have held that because of the similarity between the statutes, it is appropriate to follow the guidance of courts interpreting the FWA.” Speer v. Saenz, 2015 WL 12551069 (S.D. Tex. Feb. 19, 2015) (citing Castillo v. State, 810 S.W.2d 180, 183 (Tex. Crim. App. 1990)).

         Hovanec alleges that “[t]he actions of MILLER violate the FWA [and the Texas Criminal Act] because she willfully intercepted HOVANEC'S electronic communications when she illegally accessed her iCloud where all of her electronic communications are stored” and “further violated the FWA when she intentionally made use of and disclosed information she obtained by means of her interception of HOVANEC'S electronic communications to HOVANEC'S mother, employer, and other as yet unidentified individuals.” Am. Compl. para. 27 & 29. However, as discussed above, accessing emails in the iCloud account, even if unread, is not interception under the FWA or the Texas Act, and thus these counts are dismissed as to Miller.

         Computer Fraud and Abuse Act, 18 U.S.C. ...


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