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Epstein v. Epstein

United States District Court, N.D. Illinois, Eastern Division

April 20, 2015



THOMAS M. DURKIN, District Judge.

Plaintiff Barry Epstein ("Barry") has sued defendants Paula Epstein ("Paula"), his wife, and Jay Frank, her divorce attorney, alleging: (1) violations of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2510-2520; and (2) state-law invasion of privacy ("intrusion upon seclusion"). For the following reasons, the Court dismisses Barry's ECPA claims with prejudice, and declines to exercise supplemental jurisdiction over his state-law claim for invasion of privacy.


In June 2007, Paula accessed Barry's private computer without his "permission, knowledge or consent." R. 2 ¶¶ 9, 12. Barry alleges "on information and belief" that she caused a "rule" to be created on his computer whereby emails to and from his email accounts were automatically forwarded to Paula's email accounts. Id. at ¶ 13. On May 23, 2011, Paula filed a petition for dissolution of marriage in the Circuit Court of Cook County, Illinois. Id. at ¶ 20.[1] On October 8, 2014, Barry- through counsel-served a Request to Produce Documents (the "Request") on Paula's divorce attorney, defendant Jay Frank. Id. at ¶ 24. The Request directed Paula to produce "any and all communications, " including emails and photographs, that "allegedly relate[] to infidelity as alleged by PAULA EPSTEIN or otherwise extramarital relationship [sic]." Id. at ¶ 25; see also R. 22-1 ("Respondent's Updated Request to Produce Documents, " attached as Exhibit A to plaintiff's First Amended Complaint ("FAC")). The Request further specified that the requested materials "pertain but are not limited to the following individuals: PAULA EPSTEIN, BRETT EPSTEIN, ROSEVIVIAN HARAYO, JANCIE SALDANA, AND CARLA LIBERMAN." R. 22-1 at 1. Barry alleges that on October 10, 2014, Paula disclosed to Frank the emails she had forwarded from Barry's email accounts. R. 22 ¶ 27. Frank, in turn, delivered copies of the emails, and three photographs, to Barry's counsel on October 23-24, 2014. Id. at ¶ 33. Barry alleges that, after receiving the production, he "could not concentrate on anything other than protecting and enforcing his rights, after learning that his personal, private, and confidential communications with third persons were revealed to other individuals." Id. at ¶ 38. He filed this federal lawsuit three days later. Id. at ¶ 39.[2]

Paula and Frank moved to dismiss Barry's original complaint because he did not allege that the defendants intercepted the emails "contemporaneously" with their transmission. See, e.g., Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003) (requiring contemporaneous interception to prevail under 18 U.S.C. § 2511); see also R. 15 at 1, R. 18 at 4. In response to the defendants' motions, Barry amended his complaint by, among other things, adding the following allegation:

The interception was contemporaneous with the transmission insofar as the electronic messages destined for Plaintiff's receipt were forwarded to Defendant PAULA EPSTEIN at the same time they were received by the respective servers of the aforementioned domains, to wit, and

R. 22 ¶ 18. Barry also attached to his amended complaint unredacted copies of the "personal, private, and confidential communications" that he alleges Paula intercepted. Id. at ¶ 28; see also R. 22-3.[3] Each email indicates the date on which it was originally sent to (or from) Barry's email account, and the date on which it was forwarded to Paula's email account. In most cases, the emails were forwarded to Paula's account months, sometimes years, after Barry sent or received the emails. The shortest interval between an original email, and the email forwarding it to Paula's account, is approximately three hours. R. 22-3 at 45.[4]


A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with "fair notice" of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


Barry's FAC alleges ECPA claims against Paula for intercepting electronic communications (Counts I and II), and against Paula (Count III) and Frank (Count IV) for disclosing and using those communications. He has filed his state-law intrusion-upon-seclusion claim against Paula, only (Count V). The defendants contend that Barry has pled himself out of court.

I. Contemporaneous Interception

Under the ECPA, any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any... electronic communication" is subject to a fine, imprisonment, and/or damages. 18 U.S.C. §§ 2511(1)(a), (4)(a), and 2520. The statute defines the term "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." Id. at § 2510(4). Prior to 1986, the Federal Wiretap Act applied only to wire and oral communications. See Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 460 (5th Cir. 1994). The statute then-as now-did not expressly require contemporaneous interception. But courts reasoned that the requirement best effectuated Congress's apparent intent to bar individuals from using devices to acquire private communications. See, e.g., United States v. Turk, 526 F.2d 654, 657-58 (5th Cir. 1976) ("The words acquisition... through the use of any... device' suggest that the central concern is with the activity engaged in at the time of the oral communication which causes such communication to be overheard by uninvited listeners."). It also preserved the distinction in the statute between "interception" and "disclosure." Id. at 658. When Congress amended the Federal Wiretap Act in 1986 to cover electronic communications, it did not disturb the prevailing judicial interpretation of "interception." See Steve Jackson Games, 36 F.3d at 462 (concluding that the legislative history of the 1986 amendments "made it crystal clear that Congress did not intend to change the definition of intercept' as it existed at the time of the amendment"). Since that time, "[e]very circuit court to have considered the matter has held that an intercept' under the ECPA must occur contemporaneously with transmission." Fraser, 352 F.3d at 113 (citing United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); and Steve Jackson Games, 36 F.3d at 464).

The Seventh Circuit has not expressly adopted the contemporaneity requirement, but United States v. Szymuszkiewicz, 622 F.3d 701, 705 (7th Cir. 2010) suggests that it may do so in the appropriate case. A jury convicted Szymuszkiewicz under § 2511(1)(a) for using a "rule" to forward to his own account emails sent by third parties to his supervisor. Id. at 702. On appeal, Szymuszkiewicz argued that "any message would have reached its destination ([the victim's] inbox) before a copy was made for him." Id. at 703. The email was not "in flight, " therefore he did not "intercept" ...

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