DAN VALENTINE and W. BRAND BOBOSKY, individually and on behalf of themselves and all others similarly situated, Plaintiffs,
WIDEOPEN WEST FINANCE, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
EDMOND E. CHANG, District Judge.
Plaintiffs Dan Valentine and W. Brand Bobosky brought this proposed class action alleging that their Internet service provider (ISP), Defendant WideOpen West Finance, LLC, violated the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 2510 et seq.  In their Second Amended Complaint [R. 135], Plaintiffs alleged that WOW intercepted, disclosed, and used their electronic communications when WOW diverted their communications to a third-party advertising service, NebuAd, Inc., in direct violation of §§ 2511(1)(a), 2511(1)(c), and 2511(1)(d) of the ECPA. In December 2012, this Court granted WOW's motion to dismiss [R. 136] the § 2511(1)(a) interception claim for failure to state a claim. Fed.R.Civ.P. 12(b)(6); R. 157, Mot. Dismiss Order at 5-10. At the same time, because neither party's briefs addressed Plaintiffs' disclosure and use claims under §§ 2511(1)(c) and (d) respectively, the Court requested position papers on what to do with those remaining claims. Mot. Dismiss Order at 10-11. Before the Court now are Plaintiffs' motion to reconsider the dismissal of the § 2511(1)(a) interception claim [R. 165], the parties' position papers on the §§ 2511(1)(c) and (d) disclosure and use claims [R. 158, 159, 164, 172], and Plaintiffs' motion for leave to amend their complaint [R. 163], along with a Proposed Third Amended Complaint [R. 161-1]. For the reasons explained more fully below, both of Plaintiffs' motions [R. 163, 165] are denied, and the §§ 2511(1)(c) and (d) claims are dismissed.
WOW is an Internet service provider in several states, including Illinois. R. 135, Second Am. Compl. ¶ 15. WOW provided Internet services to over 300, 000 customers, including Plaintiffs Dan Valentine and Brand Bobosky. Id. ¶¶ 13-14. Plaintiffs allege that, in or around late 2007, WOW installed, on its broadband network, devices that diverted all of WOW's customers' Internet communications to NebuAd. Id. ¶¶ 26-32, 45, 91. NebuAd then accessed and analyzed these communications to serve targeted advertisements to WOW customers. Id. ¶¶ 92-93. Plaintiffs' Second Amended Complaint alleges that WOW's diversion of their communications to NebuAd violated three provisions of the ECPA: § 2511(1)(a) (interception of communications), §2511(1)(c) (disclosure of communications), and § 2511(1)(d) (use of communications). Id. ¶¶ 87-89, 107. In a Proposed Third Amended Complaint, Plaintiffs now allege two additional ECPA violations: § 2511(1)(a) (procurement of interception), and § 2511(3)(a) (divulging communications). R. 161-1, Proposed Third Am. Compl. ¶¶ 90-91 (citing § 2511(1)(a)), 110-17 (citing § 2511(3)(a)).
By way of background, the parties have already briefed four separate motions to dismiss connected to this lawsuit. In 2009, the United States District Court for the Northern District of California dismissed an earlier lawsuit brought by Plaintiff Valentine against WOW and five other ISPs for lack of personal jurisdiction. See Valentine v. NebuAd, Inc., 2009 WL 8186130, at *2, *10 (N.D. Cal. Oct. 6, 2009) (limiting its dismissal to lack of personal jurisdiction and declining to rule on whether the complaint stated a claim). Valentine then filed this case against WOW in this Court in December 2009. R. 1. WOW filed two motions to dismiss that version of the Complaint. R. 22, 59. Although the parties briefed both motions, neither motion was resolved on the merits. R. 42 at 5 (denying motion to dismiss pending a status hearing to more clearly define the issues), R. 123 (granting a motion to compel arbitration of six non-ECPA claims and denying the motion to dismiss as moot).
Parallel to these motions to dismiss, Plaintiffs filed two amended complaints. Valentine first amended his complaint in September 2011, adding W. Brand Bobosky as an additional named plaintiff. R. 101-1, First Am. Compl. ¶ 6b. Plaintiffs amended their complaint again in May 2012, abandoning their arbitrable claims and proceeding solely on the ECPA claim. Second Am. Compl. In response to Plaintiffs' Second Amended Complaint, WOW filed another motion to dismiss [R. 136], which this Court granted in part. Mot. Dismiss Order at 20 (dismissing § 2511(1)(a) interception claim).
II. Legal Standard
Federal Rule of Civil Procedure 54(b) states that a court may reconsider an interlocutory ruling "at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). Motions for reconsideration serve the narrow purpose of presenting newly discovered evidence or correcting manifest errors of law or fact. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (citation omitted). A motion to reconsider is proper when "the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). But a motion for reconsideration "does not provide a vehicle for a party to... advance arguments that could and should have been presented to the district court prior to the judgment." Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000) (internal quotation marks and citation omitted); see also Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) ("[R]econsideration is not for rehashing previously rejected arguments.").
Plaintiffs advance two arguments in support of their motion for reconsideration. First, Plaintiffs contend that WOW never presented this Court with the argument that Plaintiffs' interception claim should fail because WOW never accessed the contents of their electronic communications. Second, citing numerous cases that Plaintiffs did not rely on in earlier briefings, Plaintiffs argue that this Court made a manifest error of law. Finally, although technically not part of their motion for reconsideration, Plainitffs' in their position papers [R. 158, 164] urge this Court to keep their disclosure and use claims pending even if the Court refuses to grant reconsideration. The Court addresses each of these arguments in turn.
Plaintiffs first argue for reconsideration of the dismissal of their § 2511(1)(a) interception claim because WOW did not raise the argument on which the Court based its dismissal. Plaintiffs contend that the issue of "access to" the contents of their electronic communications was not raised by WOW in its motion to dismiss. R. 165, Pls.' Mot. Recons. at 1, 4. To be sure, if the Court had made a decision outside the adversarial issues presented, reconsideration might be warranted. See Bank of Waunakee, 906 F.2d at 1191. But WOW's motion and its opening brief properly teed up this issue for both Plaintiffs and the Court to consider. Thus, reconsideration on this basis is not warranted.
Plaintiffs' reconsideration motion is premised on the assertion that the Order added an "access" requirement, over and above the element of "acquisition, " into the ECPA's § 2511(1)(a) interception provision. See Pls.' Mot. Recons. at 1, 6 n.1; see also R. 174, Pls.' Reply Br. at 2. Plaintiffs point to one sentence in the Order that they believe introduces such a requirement: "Yes, WOW diverted the communications to NebuAd, but it was NebuAd that actually acquired the communications in the sense of the statute, meaning it was NebuAd that actually accessed the communications when it analyzed them to fashion targeted ads." Mot. Dismiss Order at 7-8 (emphasis added).
To be clear, the Court did not intend to impose such a requirement. The quoted sentence from the Order merely underscored that Plaintiffs' Second Amended Complaint only alleged that NebuAd -not WOW-had acquired (and accessed) the contents of Plaintiffs' communications. What was, and still is, missing from Plaintiffs' pleadings are any factual allegations that WOW ever acquired or accessed such contents. Yes, Plaintiffs' point is well-taken that "acquisition of" contents might not necessarily coincide with "access to" contents. See Pls.' Reply Br. at 4. Indeed, it is possible to envision a scenario where an ISP contracted with a third-party to extract and share, from the ISP's network, customer data that the ISP otherwise would not have had access to. The ISP might opt not to analyze the data from a certain subset of customers, all the while having ...