United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JOHN S. BRYANT, Magistrate Judge.
To: The Honorable Todd Campbell, District Judge
By order entered August 27, 2013 (Docket Entry No. 5), this matter was referred to the undersigned for case management. Plaintiff amended her complaint on November 6, 2013. (Docket Entry No. 31) On December 4, 2013, defendants filed a motion to dismiss the amended complaint. (Docket Entry No. 44) This motion was referred to the undersigned for a Report and Recommendation as to disposition. (Docket Entry No. 46) For the reasons given below, the undersigned recommends that the motion to dismiss be GRANTED.
I. Statement of the Case
Plaintiff Susan DeCuyper filed this case in August 2013, alleging various claims against defendants Amy Flinn, Robert Nebel, Joy Nebel, and Sue Ruta, all surrounding these defendants' actions as board members of the homeowners association ("HOA") of Hampton Reserve, the Brentwood, Tennessee subdivision in which plaintiff and defendants resided at the time. In her amended complaint, plaintiff pleads claims for relief under eleven counts, all of which invoke state law except count III, which presents a claim for violation of the Federal Wiretap Act. (Docket Entry No. 31, ¶¶ 76-84) With this count, plaintiff alleges that as part of a conspiracy to abuse their HOA Board power for their personal gain, to the detriment of other subdivision residents, defendants used their access to email traffic on the community listserv to intercept email communications between plaintiff and other residents. Defendants argue that the allegations in this count fail to state a claim upon which relief can be granted and that the entire action is therefore subject to dismissal, since this federal statutory claim is the sole basis for invoking this Court's original jurisdiction. Plaintiff responds that the factual allegations of her pleading are sufficient to withstand defendants' Rule 12 motion.
II. Conclusions of Law
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint for "failure to state a claim upon which relief can be granted." To survive a Rule 12(b)(6) motion, "[t]he factual allegations, assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Accordingly, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In contrast to factual allegations, legal conclusions are not assumed to be true, and are not sufficient to demonstrate the requisite plausibility of entitlement to relief unless supported by sufficient, relevant facts. Id. at 679. Thus, the Supreme Court has warned that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555.
B. The Federal Wiretap Act Claim
A violation of the Federal Wiretap Act (FWA) occurs when anyone, without authorization, "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication, " or when such intercepted communications are intentionally "used" or "disclosed." 18 U.S.C. § 2511(1). One who violates the FWA may be subject to criminal penalties as well as a civil claim for damages. 18 U.S.C. § 2520. 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). Such interception is unlawful unless the interceptor is a party to the communication, or one of the parties to the communication has given prior consent to the interception; however, implied or explicit consent is vitiated where the purpose of the interception is to commit a criminal or tortious act. 18 U.S.C. § 2511(2)(d).
Defendants argue that the factual allegations supporting plaintiff's FWA claim are insufficient to survive their motion to dismiss. The pertinent allegations of the amended complaint are these:
40. Defendants and the HOA Board represented to Hampton Reserve residents that all Hampton Reserve residents would be provided use of and access to Hampton Reserve emails sent by, between and amongst other Hampton Reserve residents without interception, obstruction or unlawful interference.
79. At all relevant times herein Defendants had access to the emails of Hampton Reserve residents, including the contents of the emails by, between and amongst the 150-plus adults residing in Hampton Reserve, and had ...