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Loughnane v. Zukowski

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

September 6, 2019

DAVID LOUGHNANE, Plaintiff,
v.
ZUKOWSKI, ROGERS, FLOOD & McARDLE; KELLY A. CAHILL; MARTIN DAVIS; RYAN P. FARRELL; RICHARD G. FLOOD; DAVID W. McARDLE; E. REGAN DANIELS SHEPLEY; MICHAEL J. SMORON; HINSHAW & CULBERTSON, LLP; MATTHEW R. HENDERSON; TOM H. LUETKEMEYER; THOMAS O'CARROLL; CSI TECHNICAL SERVICES, INC.; and D4, LLC; Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE UNITED STATES DISTRICT JUDGE

         Plaintiff David Loughnane brought this lawsuit against Defendants Zukowski, Rogers, Flood & McArdle; Kelly A. Cahill; Martin Davis; Ryan P. Farrell; Richard G. Flood; David W. McArdle; E. Regan Daniels Shepley; and Michael J. Smoron (collectively, “the Zukowski Defendants”); Hinshaw & Culbertson, LLP; Matthew R. Henderson; Tom H. Luetkemeyer; and Thomas O'Carroll (collectively, “the Hinshaw Defendants”); CSI Technical Services, Inc. (“CSI”);[1] and D4, LLC (“D4”). Plaintiff alleges that Defendants have violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701. He also brings an Illinois state-law claim for intrusion upon seclusion. Currently pending before the Court are three motions to dismiss: one filed by the Zukowski Defendants, one filed by the Hinshaw Defendants, and one filed by D4.[2]For the reasons stated below, the motions are denied.

         Background[3]

         I. Loughnane's Employment at ZRFM

         Loughnane is an attorney who was employed at the firm of Zukowski, Rogers, Flood & McArdle (“ZRFM”) from December 1, 2011 to January 9, 2017. Am. Compl. ¶ 29, ECF No. 68. As part of his employment at ZRFM, Loughnane was issued a cell phone. Id. ¶ 30. Although ZRFM paid for the phone, Loughnane alleges that ZRFM treated it as his personal phone, rather than one belonging to the firm. Id. ¶¶ 31, 35- 39, 46, 50. For instance, when Loughnane needed to replace the phone, he went to the AT&T store personally, selected a replacement, and donated the old phone to charity. Id. ¶ 38.

         Loughnane states that ZRFM personnel “set up” the phone “so it would connect to and operate with ZRFM's office computer system including email, the internet, [Loughnane's] personal Gmail email account[, ] and [Loughnane's] personal home computer.” Id. ¶ 41. But, he alleges, the firm had no policy pertaining to employees' use of the phones, nor did it have a policy explaining ZRFM's right or authority to access information contained in the email accounts, phones, or computers of its employees. Id. ¶¶ 42-45. Furthermore, in addition to work email, Loughnane maintained a personal Gmail account on his phone. Id. ¶¶ 50-52.

         II. Access by the Zukowski Defendants

         Loughnane states that, despite having no authorization to do so, the Zukowski Defendants “accessed, searched, remotely intercepted[, ] and monitored emails” on both the firm's email network and Loughnane's Gmail account. Id. ¶¶ 52-53. Specifically, Loughnane alleges that on January 9, 2017, Davis “surreptitiously” entered Loughnane's office and took his cell phone, at the direction of Cahill, Farrell, Flood, McArdle, Shepley, and/or Smoron. Id. ¶¶ 10, 54-55. And, although none of the Zukowski Defendants had his permission to access the materials on his phone, id. ¶¶ 56-59, the Zukowski Defendants acquired his phone; accessed personal, private, and confidential materials on the phone; and copied, stored, and distributed its contents. Id. ¶¶ 61-64.

         III. Access by CSI

         Loughnane further alleges that the Zukowski Defendants then gave CSI access to the phone and its contents on January 9, 2017. Id. ¶¶ 69, 73. According to Loughnane, CSI failed to obtain his authorization and consent before accessing the phone. Id. ¶¶ 70-72.

         III. Access by the Hinshaw Defendants

         In addition, Loughnane states, one or more of the Zukowski Defendants gave the Hinshaw Defendants access to the phone and its contents on or before January 12, 2017. Id. ¶ 75. Again, Loughnane alleges that the Hinshaw Defendants failed to obtain his authorization and consent before accessing the contents of the phone. Id. ¶¶ 76-78. According to Loughnane, the Hinshaw Defendants continue to possess, access, and use personal information obtained from the phone. Id. ¶ 79.

         IV. Access by D4

         Finally, Loughnane states that on January 12, 2017, one or more of the Hinshaw Defendants and/or one or more of the Zukowski Defendants gave D4 access to the phone and its contents. Id. ¶ 81. Again, Loughnane alleges that D4 failed to obtain his authorization and consent before accessing the phone. Id. ¶¶ 82-84. Instead, according to Loughnane, D4 “hacked into” the phone and copied and stored 243 calendar entries, 506 call logs, 997 contacts, 3, 402 emails, 317 MMS messages, 1, 369 SMS messages, and 336 data files. Id. ¶¶ 85-86.

         Legal Standard

          To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, when considering motions to dismiss, the Court accepts “all well-pleaded factual allegations as true and view[s] them in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). At the same time, “allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.” McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 678). As such, “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         Analysis I. SCA Claim (Count I)

         The Zukowski Defendants, Hinshaw Defendants, and D4 all seek dismissal of ...


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