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Larocca v. Larocca

United States District Court, E.D. Louisiana

January 23, 2015

LOISA C. LAROCCA
v.
JOSEPH R. LAROCCA AND DANIEL J. SENSEBE

ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

I. NATURE OF THE MOTION AND RELIEF SOUGHT

Before the Court is Defendant, Joseph R. LaRocca's, Motion for Summary Judgment.[1] Plaintiff, Eloisa C. LaRocca has filed an opposition.[2] The motion, set for submission January 21, 2015, is before the Court without oral argument. Accordingly, and for the reasons enumerated below,

IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. No. 44) is DENIED.

II. FACTS AND PROCEDURAL HISTORY

On June 7, 2013, Plaintiff, Eloisa C. LaRocca (hereinafter "Plaintiff"), filed suit for damages from Joseph LaRocca[3] (hereinafter "Defendant") under 18 U.S.C. § 2510, et seq., the federal Wiretap Act, as amended by the Electronic Communications Privacy Act (ECPA).[4] Mrs. LaRocca and Mr. LaRocca formerly were married as husband and wife.[5] In or about May 2011, while residing together, Defendant filed for divorce.[6] In the original complaint, Plaintiff alleges that, by use of the eBlaster spyware program, the "Defendant unlawfully intercepted and transferred the private communications and computer activities" of Plaintiff to an email address, in violation of the ECPA.[7]

III. LAW AND ANALYSIS

Defendant moves for summary judgment, arguing that Plaintiff "cannot demonstrate with sufficient summary judgment evidence that the software installed on her computer by Defendant continuously transmitted any intercepted communications as required to state a claim" under the ECPA.[8] Defendant contends that unless the eBlaster spyware, which indicated that reports would be sent every sixty (60) minutes, also "created a concurrent report with each communication, then it would have been created from stored communications and therefore use of the eBlaster software would fall outside the purview of the ECPA."[9]

A. Summary Judgment Standard of Review

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 749 (5th Cir. 2002). The proponent of the motion bears the burden of showing a lack of evidence to support his opponent's case. Fed.R.Civ.P. 56(c); Stauffer v. Gearhart, 741 F.3d 574, 582 (5th Cir. 2014).

A genuine dispute of material fact exists when the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Royal v. CCC & R. Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). A party cannot "defeat summary judgment with conclusory allegations, unsubstantial assertions, or only a scintilla of evidence.'" Celtic Marine Corp. v. James C. Justice Companies, Inc., 760 F.3d 477, 481 (5th Cir. 2014); TIG Ins. Co., 276 F.3d at 759.

B. The Wiretap Act and Title I of the ECPA

In 1986, Congress passed the Electronic Communications Privacy Act (ECPA), Pub.L. No. 99-508, 100 Stat. 1848. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). Title I of the ECPA ("Title I") amended the federal Wiretap Act, which previously addressed only wire and oral communications, to "address the interception of... electronic communications."[10]

The Wiretap Act, 18 U.S.C. § 2511(1)(a)("Act"), proscribes "intentionally intercept[ing]... any wire, oral, or electronic communication, " unless the intercept is authorized by court order or other exceptions. An "electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire... system." 18 U.S.C. § 2510(12). "Intercept" is defined as "the aural or other acquisition of the ...


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