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Sewell v. Bernardin

United States District Court, E.D. New York

August 2, 2014

CHANTAY SEWELL, Plaintiff,
v.
PHIL BERNARDIN, Defendant

Page 205

For the Plaintiff: Harvey S. Mars, Esq., of Counsel, Law Office of Harvey S. Mars, LLC, New York, New York.

For the Defendant: Gary Certain, Esq., of Counsel, Certain & Zilberg, PLLC, New York, New York.

Page 206

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On January 2, 2014, the Plaintiff Chantay Sewell (the " Plaintiff" ) commenced this action against the Defendant Phil Bernardin (the " Defendant" ), who she alleges hacked her American Online (" AOL" ) e-mail account (the " AOL Account" ) and her Facebook social media account (the " Facebook Account," and collectively, with the AOL Account, the " Internet Accounts" ). In this regard, pursuant to the Computer Fraud and Abuse Act of 2008, 18 U.S.C. § 1030 et seq. (" CFAA" ), the Plaintiff alleges that the Defendant intentionally accessed her computer without authorization and obtained her personal information, electronic messages, electronic posts, contacts lists, and other material stored on her Internet Accounts.

The Plaintiff also brings a claim against the Defendant pursuant to the Stored Communications Act, 18 U.S.C. § 2701, et seq. (" SCA" ), for unlawful access to stored communications. Lastly, the Plaintiff asserts a trespass to chattels cause of action pursuant to New York State common law.

Presently before the Court is a motion by the Defendant to dismiss the Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(6). The Court pauses here to note that the Defendant's submissions use footnotes, which is contrary to this Court's Individual Rule II.A. Notwithstanding this infraction, the Court will consider the Defendant's papers in rendering its decision. However, the Court advises the Defendant's counsel that any future filings that contain footnotes will not be considered by this Court.

For the reasons that follow, the Defendant's motion is granted.

I. BACKGROUND

Unless otherwise stated, the following facts are drawn from the Plaintiff's Complaint and are construed in a light most favorable to the Plaintiff.

A. Factual Background

The Plaintiff is an individual residing in the State of New York, County of Queens. In her opposition to the Defendant's motion to dismiss, the Plaintiff states that in or about 2002, she became involved in a romantic relationship with the Defendant. This relationship lasted about nine years and was terminated in or about 2011.

The Plaintiff maintained private electronic accounts with several internet service providers. Of relevance here, the Plaintiff had an e-mail account with AOL. In addition, she had a social media account with the website Facebook. She was the sole authorized user of these Internet Accounts and maintained private passwords for them. Through the Internet Accounts, the Plaintiff maintained information electronically, including her personal information, electronic messages, electronic posts, and contact lists.

According to the Plaintiff, she did not knowingly provide the Defendant or any other third parties with the means to access the Internet Accounts. In this regard, the Plaintiff never provided the Defendant with the passwords for the Internet Accounts, nor did she authorize him to obtain and/or utilize said passwords.

The Plaintiff alleges that on an unspecified date, the Defendant gained unauthorized access to the passwords for the Internet Accounts while he was at the Plaintiff's home. Then, without permission, the Defendant later used the passwords to access the Internet Accounts. In this regard, on August 1, 2011, the

Page 207

Plaintiff discovered that she could no longer log onto or access the AOL Account because her password had been altered. Similarly, on February 24, 2012, the Plaintiff discovered that she could no longer log onto or access her Facebook Account because her password was altered. The Complaint does not provide further details with respect to the length of time the Plaintiff was denied access to either of the Internet Accounts.

In the Complaint, the Plaintiff alleges that records from Verizon (the " Verizon Records" ) indicate that the Internet Accounts, as well as the computer servers on which the Internet Accounts were stored, had been accessed without authorization or permission. In this regard, based on exhibits the Plaintiff submitted with her opposition papers, it appears to the Court that the Plaintiff bases this allegation on the fact that the Verizon Records indicate that the Internet Accounts were accessed from an IP address associated with a computer located at the home address of the Defendant's wife, Tara Bernardin (" Tara" ). Thus, the Plaintiff theorizes that the Defendant used his wife's computer to log onto the Internet Accounts and proceeded to their passwords so as to prevent the Plaintiff from accessing them.

The Plaintiff further alleges that without permission or authorization, the Defendant accessed the Plaintiff's Internet Accounts on additional dates beyond August 1, 2011 and February 24, 2012. These other dates include February 12, 2012, February 17, 2012, February 24, 2012, March 24, 2012, and March 26, 2012. According to the Plaintiff, through this unauthorized access of the Internet Accounts, the Defendant obtained access to the Plaintiff's electronic communications and electronic posts, which were in electronic storage. The Plaintiff also claims the Defendant obtained access to other personal and identifying information about her.

In addition, the Plaintiff alleges that Defendant used the Internet Accounts to publically post private information about the Plaintiff and to communicate with third parties while posing as the Plaintiff. For example, on an unspecified date in 2011, she alleges that the Defendant apparently sent an e-mail message from the AOL Account and a Facebook message from the Facebook Account to the Plaintiff's family and friends using the Plaintiff's contacts lists, which she maintained privately within the Internet Accounts. These messages contained malicious statements about the Plaintiff regarding certain sexually transmitted diseases and sexual activities.

Moreover, according to the Plaintiff, the Defendant engaged in a malicious campaign of unlawfully accessing and trespassing into the Internet Accounts and accessing her personal and confidential information, which were contained in the Internet Accounts. As a result of the Defendant's conduct, the Plaintiff claims to have incurred monetary expenses in order to ...


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