This post
examines an opinion a federal District Court judge in Georgia recently issued
in a civil case: Sneed v. SEI/Aaron’s, Inc., 2013 WL 6669276 (U.S. District Court for the Northern District of Georgia 2013). Gwendolyn Sneed brought the action
by filing a Complaint in which she alleged that “a computer she leased from [SEI/Aaron’s,
Inc.] was secretly equipped with software that allowed [SEI/Aaron’s, Inc.] to
remotely access the Plaintiff's private communications and information.” Sneed
v. SEI/Aaron’s, Inc., supra.
More precisely, Sneed, the Plaintiff in the suit,
alleged that the computer she leased came with
PC Rental Agent ®
pre-installed. That software allows SEI to run `Detective Mode’ on its leased
computers. Detective Mode runs like a spyware/malware program and allows SEI to
take photographs with the leased computers' cameras, capture keystrokes, take
screen shots, and track the physical location of the computer. Detective Mode
can send updates on computer activity to SEI up to every two minutes. . . .
The Plaintiff alleges SEI has
used Detective Mode on all of its customers' computers to capture personal
information ranging from medical records, private emails, social security numbers,
financial information, and personal activities as seen through the computer's
camera. . . .
Sneed v. SEI/Aaron’s, Inc., supra. The story
you can find here provides a little more background about Detective Mode and
another suit filed over its alleged use.
The opinion also explains that Sneed sought to represent a
class on behalf of
all [SEI/Aaron’s, Inc.] customers. The Plaintiff alleges
that SEI does not disclose to its customers that it installs PC Rental Agent ®
on its leased computers or that it uses the software's Detective Mode function
to gather information about customers. . . .
The Plaintiff brings claims for common law invasion of privacy/intrusion on seclusion, computer invasion of privacy
under [Georgia Code] § 16–9–93(c), and intentional infliction of emotional distress. . . . Her complaint was filed in state court on March 5, 2013, the
Defendant removed the complaint to this Court on March 26, 2013. . . .
Sneed v. SEI/Aaron’s, Inc., supra.
As
Wikipedia explains, in the U.S. federal court system,
removal jurisdiction refers to the right of a defendant to move
a lawsuit filed in state court to the federal district
court for the federal judicial district in which the state court sits.
This is a general exception to the usual American rule giving the plaintiff the
right to make the decision on the proper forum. Removal occurs when a defendant
files a "notice of removal" in the state court where the lawsuit is
presently filed and the federal court which the defendant would like to remove
the case to.
For more on how the process works, check out Wikipedia’s
entry on removal jurisdiction. As this article explains, deciding whether to seek
removal involves a number of issues implicating litigation tactics. A defendant may decide to remove a case on
the premise that the plaintiff’s lawyer is not familiar with federal court
practice and/or on the related premise that the federal court judge may be more
objective than a state court judge.
After SEI/Aaron’s,
Inc. removed the case to federal court, it filed a motion to dismiss Sneed’s
suit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sneed v. SEI/Aaron’s, Inc., supra. As I have noted in prior posts, a Rule
12(b)(6) motion asserts that a cause of action pled in a Complaint is
substantively inadequate because it fails “to state a claim upon which relief
can be granted.” And as Wikipedia explains, the
Rule 12(b)(6) motion . . . is how lawsuits with insufficient
legal theories underlying their cause of action are dismissed from
court. For example, assault requires intent, so if the plaintiff has
failed to plead intent, the defense can seek dismissal by filing a 12(b)(6)
motion. . . .
Or, as the
judge in this case explained, a complaint should be dismissed under Rule 12(b)(6)
only where it appears that the facts
alleged fail to state a `plausible’ claim for relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . A complaint may survive a motion to dismiss for failure
to state a claim . . . even if it is `improbable’ that a plaintiff would be
able to prove those facts. . . . Bell Atlantic v. Twombly, 550 U.S. 544 (2007). In ruling on a motion to dismiss, the court must accept the facts
pleaded in the complaint as true and construe them in the light most favorable
to the plaintiff. . . .
Generally, notice pleading is all that is required for a
valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d
974 (U.S. Court of Appeals for the 11th Circuit 1985). . . . Under notice pleading, the plaintiff need only
give the defendant fair notice of the plaintiff's claim and the grounds upon
which it rests. See Erickson v. Pardus, 551 U.S. 89 (2007).
Sneed v. SEI/Aaron’s, Inc., supra.
The judge
then took up SEI/Aaron’s, Inc.’s challenges to Sneed’s causes of action,
beginning with the invasion of privacy claim. Sneed v. SEI/Aaron’s, Inc., supra.
He noted that SEI/Aaron’s, Inc.’s motion to dismiss
argues that [Sneed’s] claim for invasion of privacy must fail
because the allegations supporting that claim are only based upon information
and belief and because there are no credible allegations that SEI actually
obtained data from [her] computer. [Sneed] counters that her allegations are
sufficient and that there is no way for her to know whether SEI did in fact
access her computer without engaging in discovery.
Sneed v. SEI/Aaron’s, Inc., supra.
The judge
then analyzed both parties’ arguments, noting that Sneed’s
invasion of privacy claim is based upon an intrusion into her
seclusion or other private affairs. `The intrusion aspect of this type of
invasion of privacy “involves a prying or intrusion, which would be offensive
or objectionable to a reasonable person.”’ Everett v. Goodloe, 268
Ga.App. 536, 602 S.E.2d 284 (Georgia Court of Appeals 2004) (quoting Yarbray
v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835 (GeorgiaSupreme Court 1991)).
Here, [Sneed] alleges that [SEI/Aaron’s, Inc.] leased a
computer to her without informing her that the computer was equipped with
software that would allow [SEI/Aaron’s, Inc.] to monitor [her] activities. [Sneed]
further alleges that [SEI/Aaron’s] accessed financial information, personal
information, and even images of [Sneed] at her computer. These are allegations
of potential intrusions on privacy that would be `offensive or objectionable to
a reasonable person.’ See id.
Sneed v. SEI/Aaron’s, Inc., supra.
The judge also noted that SEI/Aaron’s, Inc. “nevertheless” insisted that Sneed’s
claim must fail because [she] only
alleges that, `[u]pon information and belief, the Plaintiff's computer was
secretly accessed by Defendant, resulting in her physical location being
tracked and her images being taken with the webcam and her communications being
stolen, all via PC Rental Agent.’ (Complaint ¶ 35). [SEI/Aaron’s] relies upon Innotex Precision
Ltd. v. Horei Image Products, Inc., 679 F.Supp.2d 1356 (U.S. District
Court for the Northern District of Georgia 2009), where this Court refused to
provide the assumption of truth to pleadings based on information and belief.
However, in that case, the court
rejected four paragraphs from the complaint that were `”threadbare recitations”
of factors cited by Georgia courts in deciding whether to pierce the corporate veil.’
Id. (quoting Iqbal, supra). Here, on the other hand, the allegation upon
information and belief does not recite the elements of a claim or make a
conclusory statement. Rather, the allegation states [Sneed] believes [SEI/Aaron’s] has accessed specific
aspects of her private information using a specific software program [SEI/Aaron’s] installed on her computer.
Importantly, it is unclear how [she] could
know at this time beyond information and belief whether [SEI/Aaron’s] actually accessed [her] computer. See Awbrey
v. Great Atlantic & Pac. Tea Co., 505 F.Supp. 604 (U.S. District
Court for the Northern District of Georgia 1980) (denying summary judgment
to defendant on wiretapping claim and noting that `the fact that most of the
plaintiffs have no personal, first-hand knowledge that any particular phone
call was tapped is not remarkable. Indeed, it would be unusual if anyone other
than defendant, and its employees involved in the wiretapping, had knowledge of
the specific incidents of wiretapping’).
Sneed v. SEI/Aaron’s, Inc., supra. The judge
therefore held that because Sneed “has sufficiently alleged facts to sustain a
claim for intrusion upon seclusion”, SEI/Aaron’s motion to dismiss that cause
of action must be denied. Sneed v.
SEI/Aaron’s, Inc., supra. So, that
part of Sneed’s suit survived, at least for a while.
The judge
then took up SEI/Aaron’s argument that Sneed had not alleged facts sufficient
to plead a claim under Georgia Code § 16–9–93(c), which provides as
follows:
Any person who uses a computer or computer network with the
intention of examining any employment, medical, salary, credit, or any other
financial or personal data relating to any other person with knowledge that
such examination is without authority shall be guilty of the crime of computer
invasion of privacy.
He also
noted that Georgia Code § 16–9–93(g)(1) “further” provides that “`[a]ny
person whose property or person is injured by reason of a violation of any
provision of this article may sue therefor and recover for any damages sustained
and the costs of suit.’” Sneed v. SEI/Aaron’s, Inc., supra. In its
motion to dismiss SEI/Aaron’s argued that
§ 16–9–93(g)(1) requires [Sneed]
to allege that she has been injured in order to sustain a claim for Computer
Invasion of Privacy, and that [she] has
not done so. However, [Sneed] alleges that [SEI/Aaron’s] accessed her computer and viewed
financial and personal information as well as pictures of [her] taken by the
computer's webcam.
Additionally, [Sneed] alleges she and
potential class members have been injured by [SEI/Aaron’s] use of Detective Mode because their
information `may have been possibly transmitted to other third parties thereby
placing [the putative class] at an increased risk of fraud and identity theft
and causing direct financial expenses associated with credit monitoring,
replacement of compromised credit, debit, and bank card numbers.’ . . .
Sneed v. SEI/Aaron’s, Inc., supra.
The judge
therefore found that Sneed’s allegations were sufficient to show Sneed
has been injured by [SEI/Aaron’s] intrusion on her privacy through the PC Rental
Agent ® software. See [Georgia Code] § 16–9–93(g)(1) (`Without
limiting the generality of the term, ‘damages' shall include loss of profits
and victim expenditure.’). Accordingly, the Court concludes [Sneed] has pled
sufficient facts to support a claim under §§ 16–9–93(c) and (g),
and [SEI/Aaron’s] motion to dismiss
should be denied in this respect.
Sneed v. SEI/Aaron’s, Inc., supra.
Finally,
the judge took up SEI/Aaron’s argument that Sneed had not adequately stated a
claim for intentional infliction of emotional distress in her Complaint. Sneed v. SEI/Aaron’s, Inc., supra. He explained that to
`assert a claim for intentional infliction of emotional distress,
plaintiffs must show “(1) the conduct giving rise to [the distress] was
intentional or reckless; (2) the conduct was extreme and outrageous; (3) the
conduct caused emotional distress; and (4) the emotional distress was severe,”’
Peterson v. Merscorp Holdings, Inc., 2012 WL 3961211(U.S. District Court
for the Northern District of Georgia 2012) (quoting Blue View
Corp. v. Bell, 298 Ga.App. 277, 679 S.E.2d 739 (Georgia Court of Appeals 2009)).
Sneed v. SEI/Aaron’s, Inc., supra. The judge
also noted that
[e]motional distress includes all highly unpleasant mental
reactions such as fright, horror, grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. The law
intervenes only where the distress inflicted is so severe that no reasonable
person could be expected to endure it.
Sneed v. SEI/Aaron’s, Inc., supra (emphasis in the original) (quoting Abdul–Malik v. AirTran Airways, Inc., 297 Ga.App. 852, 678 S.E.2d 555 (Georgia Court of Appeals 2009)).
The judge then explained that there
were no allegations in the Complaint stating
[Sneed] herself
suffered emotional distress, let alone severe emotional distress. The closest
allegations are the allegations that `[t]he acts of [SEI/Aaron] constitute a wanton,
voluntary, and intentional wrong, which was so terrifying and insulting as
naturally to [sic] humiliate, embarrass, and frighten Plaintiff and class
members.’ (Complaint ¶ 51). These allegations do not show a sufficiently severe
level of emotional stress.
Indeed, allegations
of emotional stress more severe than humiliation, embarrassment, and fright
have been held insufficient by Georgia courts. See Abdul–Malik v.
AirTran Airways, supra (concluding evidence of sleeplessness and weight
gain was insufficient for a claim of intentional infliction of emotional
distress); Witter v. Delta Airlines, 966 F.Supp. 1193 (U.S.
District Court for the Northern District of Georgia 1997) (evidence of anxiety,
sleeplessness, overeating, diarrhea, and headaches insufficient to establish
severe emotional distress. . . .
[Sneed’s] allegations
only state she was subject to humiliation, fear, and embarrassment. She does
not allege any physical symptoms or further mental symptoms, or provide any
details. There is no indication that she has sought professional help.
Sneed v. SEI/Aaron’s, Inc., supra.
The judge
therefore found that Sneed’s “allegations do not indicate that she suffered
sufficiently severe emotional stress to sustain a claim for intentional
infliction of emotional distress”, which meant that SEI/Aaron’s “motion to
dismiss should be granted in this respect.”
Sneed v. SEI/Aaron’s, Inc., supra.
So, he
denied the motion to dismiss on Sneed’s first two claims but granted it on the
third. Sneed v. SEI/Aaron’s, Inc., supra.
That may dispose of the intentional infliction of emotional distress
cause of action, but Sneed may, if the facts justify such a step, be able to
file an amended Complaint under Rule 15 of the Federal Rules of Civil Procedure. In the Amended Complaint she
could, if the facts allow, try to remedy the deficiencies in her initial
Complaint.
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