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Marsh v. Curran

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

January 25, 2019

GERALD CURRAN, ESQ.. et al., Defendants.


          HON. LIAM O'GRADY

         This matter comes before the Court on Defendants' Motions to Dismiss for Lack of Jurisdiction (Dkts. 38, 40, & 42). The motions were fully briefed and the Court dispensed with oral argument, finding that oral argument would not aid the Court in its decision. For the reasons stated below and for good cause shown, Defendants' Motions to Dismiss (Dkts. 38, 40, & 42) are GRANTED IN PART, DENIED IN PART.

         I. BACKGROUND

         Plaintiff has sued his wife's lawyers ("Defendant Lawyers") and members of her family (Kristina Hampton, Derek Hampton, and Danielle Richards; collectively "Family Defendants") for allegedly recording Plaintiffs conversations with his attorneys and purported romantic partner. Monika Pawar. and using the contents of those recordings in his underlying divorce proceedings. Am. Compl. ¶¶ 2-3.

         Plaintiff's wife, Andrea Marsh, filed for divorce alleging that Plaintiff had committed adultery. Id. ¶ 17. Plaintiff alleges that the Hamptons and his wife worked together to place recording devices in his home, car, and/or phone. Id. ¶ 20. According to Plaintiff, Derek Hampton is "an information security and computer networking specialist" with "access to and expertise in technology and computer software that would enable him to engage in and assist Andrea Marsh and the other Non-Lawyer Defendants in surreptitiously intercepting Plaintiffs private electronic communications." Id. ¶ 20. Plaintiff claims to have viewed numerous emails between his wife and the Family Defendants circulating and describing the contents of his private conversations with others. Id. ¶ 22. Plaintiff also found a journal entitled "Andrea Marsh Journal of Tim's Activities," which appears to be authored by Defendant Richards. Id. ¶¶ 35-38, Ex. E, Ex. F. Plaintiff alleges that "Defendants K. Hampton and D Richards, with the assistance and support of Defendant D Hampton, transcribed the contents of the intercepted" communications into the journal and shared the information with each other, Plaintiffs wife, and Defendant Lawyers. Id. ¶ 35.

         Plaintiffs wife also sent emails to Defendant Curran, one of her lawyers, describing the intercepted private communications between Plaintiff and his lawyer, and between Plaintiff and the woman with whom he was allegedly committing adultery, Monika Pawar. Id. ¶¶ 24-25, Ex. A (copy of an email). Defendant Lawyers allegedly utilized information gathered from the recordings in the underlying divorce proceeding, such as when questioning Monika Pawar, despite knowing or having notice that their client and her family had illegally wiretapped Plaintiff. Id. ¶¶ 44-60, ¶¶ 73-105, Exs. 8-14.

         Plaintiff has also alleged that Defendants shared the contents of his private communications to individuals not associated with his divorce case, including his co-workers, neighbors, friends, and spouses of his business associates. Id. ¶ 69.

         During Plaintiffs divorce proceedings, Judge Home found that the recordings were obtained in violation of a wiretapping statute. Id. ¶ 4, ¶ 33, Ex. B. at 118-19.

         Plaintiff further alleges that his wife and Family Defendants illegally viewed and shared his private financial and identifying information. Id. ¶ 27. Plaintiff has produced an email from Defendant Kristina Hampton to one of the Defendant Lawyers describing and attaching some of Plaintiffs financial transactions. Id. ¶ 28, Ex. C. He has also produced an email suggesting that both the Hamptons had viewed Plaintiffs financial transactions. See Id. Ex. C at 9.

         Plaintiff alleges that all Defendants violated federal and state wiretapping laws, intentionally inflicted emotional distress, and aided and abetted. Id. Counts I, II, V, VI. Plaintiff also alleges that the Hamptons violated Virginia's Computer Crimes Act. Id. Counts III, IV. Finally, Plaintiff has brought a claim for temporary and permanent injunctive relief. Id. Count VII. All Defendants moved to dismiss Plaintiffs Amended Complaint for failure to state a claim.


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 550 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief so as to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Fed.R.Civ.P. 8(a)(2); Twombly, 550 U.S. at 555. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff."' Kensington Volunteer Fire Dep 7 v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, a complaint may survive a motion to dismiss "even if it appears 'that a recovery is very remote and unlikely, '" id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), so long as the complaint states a claim that is "plausible" and not merely "conceivable," Twombly, 550 U.S. at 569.

         III. ANALYSIS

         A. Defense of Unclean Hands.

         All Defendants argue that Plaintiff is barred from recovery due to unclean hands. Unclean hands is an equitable defense. Burlington Indus, v. Milliken & Co.. 690 F.2d 380, 388 (4th Cir. 1982). Motions to dismiss under Rule 12(b)(6) do not resolve the applicability of defenses. Republican Party of N.C. v. Martin,980 F.2d 943, 952 (4th Cir. 1992). Hence, ...

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