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Hately v. Torrenzano

United States District Court, E.D. Virginia, Alexandria Division

April 20, 2017

PATRICK HATELY, Plaintiff,
v.
NICOLE TORRENZANO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Gerald Bruce Lee United States District Judge

         THIS MATTER is before the Court on Plaintiff Patrick Hately's Motion to Amend Complaint (Dkt. No. 33), United States Magistrate Judge Michael Nachmanoff s Report and Recommendation (Dkt. No. 58), and Plaintiffs Objection to the Report and Recommendation in Favor of Denying Plaintiffs Motion to Amend (Dkt. No. 75). This matter concerns Plaintiffs claim against Defendant Nicole Torrenzano under the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq., and Plaintiffs Motion to Amend the complaint to add four additional claims that the Court previously dismissed without prejudice.

         There are two issues before the Court. The first issue is whether the Court should accept the Magistrate Judge's recommendation to deny Plaintiffs Motion to Amend based on the ground that granting Plaintiffs Motion would prejudice Defendant, prejudice a non-party that Plaintiff voluntarily dismissed from this suit and seeks to rename as a defendant, or prejudice both. Upon de novo review, the Court adopts the Magistrate Judge's recommendation to deny Plaintiffs Motion to Amend because Plaintiff's attempt to amend the complaint would cause undue prejudice to Defendant.

         The second issue is whether the Court should accept the Magistrate Judge's recommendation to deny Plaintiffs Motion to Amend based on the ground that amending the complaint would be futile because it would still fail to sufficiently allege damages. Because the Court finds that amending the complaint would prejudice Defendant and the Court will analyze damages under the SCA at the summary judgment stage, the Court need not address whether amending the complaint would be futile.

         I. BACKGROUND

         Plaintiff Patrick Hately and Defendant Nicole Torrenzano were involved in a relationship for approximately five years and have two children together. In March or April 2015, Plaintiff and Defendant separated. Plaintiff alleges that Defendant was also in a relationship with non-party David Watts ("Watts"). Watts is married to Audrey Watts, who contacted Plaintiff and asked if he knew about the relationship between Watts and Defendant. Plaintiff alleges that beginning in July 2015, Defendant hacked into Plaintiffs personal cell phone account by guessing Plaintiffs password, downloaded Plaintiffs phone records, and gave them to Watts who knowingly accepted the illegally acquired information. It appears that in November 2015, Defendant filed a petition for custody and child support in a separate proceeding.

         On September 7, 2016, Plaintiff filed a five-count Complaint against Defendant Torrenzano and Watts. (Dkt. No. 1, Compl.) On October 6, 2016, Plaintiff moved to voluntarily dismiss Watts, and this Court dismissed Watts without prejudice on October 25, 2016. (Dkt. Nos. 7 & 12.) On October 24, 2016, Defendant Torrenzano filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 10), which was denied as moot on November 7, 2016 because Plaintiff had filed an amended complaint ("First Amended Complaint") on November 4, 2016. (See Dkt. Nos. 21, 22.)

         Plaintiffs First Amended Complaint-brought against Defendant but not Watts-asserts five causes of action: (1) violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030; (2) violation of the SCA; (3) Virginia Computer Fraud under Va. Code § 18.2-152.3; (4) Virginia Computer Trespass under Va. Code § 18.2-152.4(A); and (5) Virginia Computer Invasion of Privacy under Va. Code § 18.2-152.5. (Dkt. No. 21.) The latter three claims under Virginia law are hereinafter collectively referred to as the "Virginia Computer Crime Claims."

         On November 11, 2016, Defendant filed a second motion to dismiss the First Amended Complaint. (Dkt. No. 23.) The Court granted Defendant's second motion to dismiss without prejudice as to die CFAA claim (Count I) and the three Virginia Computer Crime Claims (Counts III, IV, and V). The Court dismissed the CFAA claim because Plaintiff failed to sufficiently allege that he incurred over $5, 000 in losses or damages cognizable under the CFAA, which pursuant to 18 U.S.C. § 1030(g) is the statutory threshold for bringing a CFAA action. Although defendant moved to dismiss the Virginia Computer Crime Claims on multiple grounds, the Court dismissed the Virginia Computer Crime Claims because Plaintiff failed to sufficiently allege how he sustained any injury to person or property by reason of a violation of the Virginia Computer Crimes Act ("VCCA"). By contrast, Defendant did not move to dismiss the SCA claim (Count II) based on a lack of pleading damages; Defendant moved to dismiss the SCA claim based on the server storing Plaintiff's information not operating as an "electronic storage" communication service for purposes of backup protection. (See Dkt. Nos. 23 & 24.) The Court denied Defendant's second motion to dismiss on that ground. (See Dkt. No. 30.) Subsequently, on December 16, 2016, Defendant filed an answer to the First Amended Complaint. (Dkt. No. 32.)

         On February 13, 2017, Plaintiff moved to amend the complaint by re-pleading counts I, III, IV, and V against Defendant Torrenzano, and renaming Watts as a defendant with respect to all five counts.[1] (Dkt. No. 33.) Plaintiff also filed a waiver of oral argument. (Dkt. No. 34.) On February 20, 2017, Defendant filed a "Notice of Intent to Oppose Plaintiffs Motion to Amend Complaint, " stating that Defendant did not waive oral argument. (Dkt. Nos. 37, 38.) On February 27, 2017, Defendant filed her opposition brief and noticed the matter for oral argument on March 17, 2017. (Dkt. Nos. 42, 43.) On February 27, 2017, Watts filed an opposition brief. (Dkt. No. 41.) Plaintiff filed reply briefs on March 6, 2017. (Dkt. Nos. 45, 46.)

         On March 17, 2017, the Magistrate Judge heard oral argument from counsel for Plaintiff, Defendant, and Watts regarding Plaintiffs Motion to Amend. (See Dkt. No. 48.) On March 24, 2016, the Magistrate Judge issued a Report and Recommendation, which recommended that the Court deny Plaintiffs Motion to Amend based on the grounds that amending the complaint would prejudice Defendant and Watts, and that amending the complaint would be futile. (See Dkt. No. 58.) On April 7, 2017, Plaintiff filed an Objection to the Report and Recommendation in Favor of Deny Plaintiffs Motion to Amend. (Dkt. No. 75.) There are also cross-motions for summary judgment pending (Dkt. Nos. 78, 79), but this Memorandum Opinion does not address those motions.

         On April 14, 2017, Plaintiff noticed a hearing for April 21, 2017 for the Court to consider his Objection. (Dkt. No. 81.) Upon consideration of Plaintiff s Objection, the briefs submitted to the Magistrate Judge, and the entire case record, the Court may resolve Plaintiffs Objection without the need for an oral hearing or further briefing. See Fed. R. Civ. P. 78(b); E.D. Va. Local Civil Rule 7(J).

         II. DISCUSSION

         A. ...


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