United States District Court, Southern District of Illinois
MEMORANDUM AND ORDER
STACI M. YANDLE DISTRICT JUDGE
This matter comes before the Court on defendants Donald Zeiser's ("Defendant Zeiser"), Steven Jacobsen's, Kyvon Services, LLC's, Mark Stueck's, William Reynolds', and Brighton Lewis, Inc.'s (collectively "Defendants") Motions to Dismiss (Docs. 100, 102, 104, 106 & 107). Plaintiffs Theresa Troeckler and Candice Zeiser ("Plaintiff Zeiser") (collectively "Plaintiffs") filed their responses (Docs. 100, 113, 115, & 117). For the following reasons, the Court GRANTS in part and DENIES in part the motions.
Troeckler is the mother of Plaintiff Zeiser. Plaintiff Zeiser was previously married to Defendant Zeiser. On April 12, 2012, Troeckler located a black box attached underneath her vehicle after receiving a call from an anonymous individual informing her she was being tracked. The Madison County Sheriff's Department took the black box into evidence and ultimately identified it as a World Tracker Enduro Pro tracking device owned by Tracking the World, Inc. The Sheriff's Department further concluded that the tracking device had been removed and reattached multiple times by Jacobsen and Reynolds at Defendant Zeiser's request. Ultimately, the Sheriff's Department learned from Tracking the World, Inc. that the device was registered to Stueck who had worked for Kyvon from approximately 2001 through November 2011. For several years, Stueck worked exclusively for Kyvon's client, Defendant Zeiser.
On September 28, 2012, the Sheriff's Department also found that an internet provider address registered to Defendant Zeiser indicated repeated unauthorized log-in attempts to Troeckler's personal email account which continued until 2013 and during the pendency of the Sheriff's investigation. On November 7, 2012, the Sheriff's Department determined that Defendants Zeiser and Stueck had accessed Plaintiff Zeiser's email account, computer, and cell phone without her consent or knowledge.
Plaintiffs' Second Amended Complaint alleges as follows: (1) Count I – Invasion of Privacy – Intrusion Upon Seclusion against all defendants; (2) Count II – Negligence against HTTP Management Group, Inc., Procomm Voice and Data Solutions, Inc., Kyvon, Lawrence Hopp, and Margaret Christine Hopp; (3) Count III – Civil Conspiracy against all defendants; and (4) Count IV – Punitive Damages against Defendant Zeiser, Stueck, Reynolds and Jacobsen. HTTP Management Group, Inc., Procomm Voice and Data Solutions, Inc., Kyvon, Lawrence Hopp, and Margaret Christine Hopp were dismissed from this case, leaving only Counts I, III and IV pending.
Defendants Zeiser, Jacobsen, Kyvon, Stueck, Reynolds, and Brighton Lewis, Inc. filed identical motions to dismiss Plaintiffs' Second Amended Complaint asserting that Plaintiffs fail to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, with respect to Count I, Defendants argue that tracking Troeckler's vehicle did not constitute a private matter or private fact. Further, they maintain that Plaintiffs did not affirmatively allege sufficient conduct when they stated Defendants likely accessed Plaintiff Zeiser's personal accounts or that an IP address registered to Defendant Zeiser showed evidence of logins to Troeckler's email. With respect to the civil conspiracy allegations in Count III, Defendants contend this count necessarily fails because Plaintiffs failed to state the independent cause of action for intrusion upon seclusion underlying their conspiracy allegations. Finally, Defendants maintain that Count IV must be dismissed because punitive damages are a type of remedy, not a separate cause of action.
Count I – Invasion of Privacy by Intrusion upon Seclusion
Illinois follows the Restatement (Second) of Torts which defines invasion of privacy by intrusion upon seclusion as follows:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Busse v. Motorola, Inc. , 813 N.E.2d 1013, 1017 (Ill.App.Ct. 2004) (citing Restatement (Second) of Torts § 652B, at 278 (1977)). To state a cause of action for the tort of invasion of privacy by intrusion upon seclusion, a plaintiff must allege the following four elements: "(1) an unauthorized intrusion or prying into the plaintiff's seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person; (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering." Johnson v. K-mart Corp., 723 N.E.2d 1192, 1196 (Ill.App.Ct. 2000).
Defendants first argue that Plaintiffs fail to allege the third element in that the tracking of a vehicle is not a private matter or fact because a vehicle can be readily observed by others. The third element of the tort of invasion of privacy by intrusion upon seclusion "is a predicate for the other three. Without private facts, the other three elements of the tort need not be reached." Busse, 813 N.E.2d at 1017. An Illinois court has found that the privacy element has been satisfied where a defendant poked holes in the ceiling of a women's restroom to view the women changing clothes and using the restroom. Benitez v. KFC Nat'l Mgmt. Co., 714 N.E.2d 1002 (Ill.App.Ct. 1999). Patients also satisfied the privacy element where a video camera in a nurse manager's office captured video of nurses performing medical examinations on the patients. Acuff v. IBP, Inc. , 77 F.Supp.2d 914, 924 (C.D. Ill. 1999). Illinois courts, however, have held that facts found in public records, such as names, addresses, dates of birth, and marriage are not private facts and thus do not satisfy the privacy element. Johnson, 723 N.E.2d at 1196-97. The privacy element was also not satisfied where neighbors aimed a surveillance camera at the plaintiffs' garage, driveway, side-door area, and backyard because those areas could be viewed by a passerby on the street. Schiller v. Mitchell, 828 N.E.2d 323, 329 (Ill.App.Ct. 2005).
While Illinois courts have not specifically addressed the placement of a GPS tracking device in the context of this tort, other jurisdictions provide guidance. For instance, a New Jersey court, also following the Restatement (Second) of Torts, concluded that the privacy element was not satisfied where a wife, at the behest of her hired investigators, placed a GPS tracking device in her soon-to-be ex-husband's vehicle to investigate his "suspected infidelities." Villanova v. Innovative Investigations, Inc., 21 A.3d 650, 652 (N.J. App. Ct. 2011). The court found it relevant that there was no evidence that the ex-husband drove the vehicle into a private or secluded location where he had a reasonable expectation of privacy. Id . at 656. The Court finds this opinion persuasive.
Here, unlike Benitez and Acuff which alleged surveillance in the private locations of a restroom and nurse's office, Plaintiffs do not allege that the GPS tracking device captured any private activity. Rather, the facts in this case are analogous to Villanova, Johnson, and Schiller to the extent that Plaintiffs have failed to plead that the placement of the GPS led to the disclosure of private facts. Specifically, like Villanova, Plaintiffs failed to plead that the GPS vehicle conveyed information that the vehicle was driven into a private secluded location in which Plaintiffs would have a reasonable expectation of privacy. In other words, Plaintiffs have failed to plead how a passerby on the ...