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Steinbach v. Village of Forest Park

August 25, 2009

THERESA STEINBACH, PLAINTIFF,
v.
VILLAGE OF FOREST PARK, AN ILLINOIS MUNICIPAL CORPORATION, CRAIG LUNDT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, ANTHONY CALDERONE, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, AND JOHN DOE 3, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

AMENDED MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Theresa Steinbach ("Steinbach") is suing Defendant Anthony Calderone ("Calderone"), Mayor of the Village of Forest Park, Craig Lundt, a city employee, and the Village of Forest Park itself ("Forest Park"). Steinbach is the Commissioner of Forest Park and also a city employee. She alleges that Defendants violated her privacy, and in the process, violated federal and state laws, by reading and forwarding emails from her professional email account to Calderone's account without authorization. Steinbach alleges a total of fourteen counts against Defendants. Defendant Forest Park moves to dismiss the complaint, in its entirety, under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the following reasons, Defendant's Motion to Dismiss will be granted in part and denied in part.

II. STANDARD OF REVIEW

A Motion to Dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I must take all facts alleged in Plaintiff's complaint as true and draw all reasonable inferences from those facts in favor of the Plaintiff. Caldwell v. City of Elmwood, 959 F.2d 670, 671 (7th Cir. 1992). Plaintiff, for her part, must do more than solely recite the elements for a violation; she must plead with sufficient particularity so that her right to relief is more than a mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must plead her facts so that, when accepted as true, they show the plausibility of her claim for relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiff must do more than plead facts that are "consistent with Defendants' liability" because that only shows the possibility, not the plausibility,of her entitlement to relief. Id. (internal quotations omitted).

III. STATEMENT OF RELEVANT FACTS

Steinbach was elected to the position of Commissioner of Forest Park in 2003, while Defendant Anthony Calderone was the elected Mayor of Forest Park. Upon her election, Forest Park provided her with an email account. Steinbach contacted Defendant Craig Lundt, an IT technician employed by Forest Park, to configure her Forest Park email to be forwarded to her personal email account, which was not associated with Forest Park.

In 2006, Steinbach ran for mayor against Calderone, but lost the election. Around May, 2006, Steinbach contacted Lundt because she was not receiving all of her Forest Park email in her personal account. To resolve the problem, Lundt gave Steinbach direct access to her Forest Park email account through Hostway Corporation ("Hostway"), a third party webmail server. To use Hostway, Lundt gave Steinbach a username and password. On July 7, 2006, Steinbach accessed her Forest Park email via Hostway for the first time. She was surprised to notice that her "sent" folder contained emails from her Forest Park account which were forwarded to Calderone. These forwarded emails included private emails from Steinbach's constituents. There were a total of eleven emails forwarded from Steinbach's account to Calderone's account. When news of the scandal broke, local papers interviewed Calderone. His official comment was that he was not involved.

On August 4, 2006, Steinbach filed her original complaint. After filing two amended complaints, she filed her final Verified Third Amended Complaint on March 26, 2009 containing fourteen counts against Calderone, Lundt, and the Village of Forest Park. Plaintiff voluntarily dismissed Count 1 in its entirety. Count 2 is brought against Lundt and Forest Park for a violation of the federal Wiretap Act. Counts 3 and 4 are brought against Forest Park, Calderone, and John Doe, alleging violations of the federal Wiretap Act. Counts 5, 6, and 7 alleging violations of 720 ILL. COMP. STAT. 5/14, the Illinois eavesdropping statute, and brought against all Defendants have been voluntarily dismissed. Count 8, against all Defendants, alleges a violation of the tort of intrusion upon seclusion. Count 9, also against all Defendants, alleges a violation of the federal Computer Fraud and Abuse Act. Count 10 holds Forest Park liable for the actions of its employees through the doctrine of respondeat superior. Plaintiff has failed to allege a Count 11. Counts 12, 13 and 14, brought against the Defendants individually and Forest Park, each allege a violation of the Stored Communications Act. Counts 3, 4, 8, 9, 12, and 14 have been dismissed as to Defendant Calderone. Defendant Forest Park now moves to dismiss the counts against it. For the following reasons, Defendant's Motion to Dismiss is granted in part, and denied in part.

IV. DISCUSSION

Counts 1-4: Federal Wiretap Act

Counts 1-4 against Forest Park involve alleged violations of the Federal Wiretap Act. 18 U.S.C. §§ 2511, 2520. Plaintiff has voluntarily dismissed Count 1 against Forest Park. Count 4 has been dismissed against the only other remaining defendant, Calderone, and as a result, must also be dismissed against Forest Park, since liability was premised on the doctrine of respondeat superior. Therefore, my discussion is limited to Counts 2 and 3.

Plaintiff alleges that Defendant Lundt and John Doe violated the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2511(1)(a)(b)(c) and (d), and that Forest Park is liable for the acts of its employees under the doctrine of respondeat superior. She seeks statutory damages pursuant to 18 U.S.C. § 2520(c)(2). Defendant argues that the ECPA does not apply to municipalities and should therefore be dismissed against Forest Park, however, Plaintiff maintains that a 2001 amendment of § 2520 makes it clear that it applies to municipalities. For the following reasons, Count 2 and 3 are dismissed against Forest Park.

The Federal Wiretap Act provides that "any person who-(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication" shall be found in violation of the statute and subject to civil or criminal penalties. 18 U.S.C. § 2511(1)(a). Section 2520 provides for a private right of action against any "person or entity" who violates the Act. The Seventh Circuit has held that neither section allows for the liability of municipalities. Abbott v. Village of Winthrop Harbor, 205 F.3d 976, 980 (7th Cir. 2000). "Person" is defined as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation." 18 U.S.C. § 2510(6). Municipalities are not included in this definition, and the Seventh Circuit found no legislative intent to the contrary. Abbott, 205 F.3d at 980. The legislative history is also silent as to the purpose of the addition of the word "entity" to section 2520 in 1986. Id. The Court was "persuaded that municipalities are immune from suit, not only because of the corroborating testimony in the legislative history, but simply because Congress has never amended the definition of 'person' in § 2510(6)." Id.

Plaintiff argues that the PATRIOT ACT's 2001 amendment to ยง 2520, which added the phrase "other than the United States" after the word "entity," clarified that municipalities are subject to liability under this section. ...


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