UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-60972-CIV-SINGHAL

SHANA DOTY, individually and on behalf of all

others similarly situated,

Plaintiff,

v.

ADT, LLC d/b/a ADT SECURITY

SERVICES,

Defendant.

________________________________/

ORDER

THIS CAUSE is before the Court on Defendant, ADT, LLC’s (“ADT”) Motion to 

Dismiss Amended Complaint (DE [58]). The matter has been fully briefed and the Court 

has heard argument of counsel. For the reasons set forth below, ADT’s Motion to Dismiss 

Amended Complaint is granted in part and denied in part.

I. BACKGROUND

Plaintiff Shana Doty (“Plaintiff”) contracted with ADT for its Pulse home alarm 

service which provided an internet-connected smart home system including camera 

surveillance inside and outside her home. After several years of service, ADT notified 

Plaintiff that the employee who installed her system, Telesforo Aviles (“Aviles”), had given 

himself remote access to her account that enabled him to surreptitiously open locks, 

disarm the system, and view and download security camera footage from Plaintiff’s home.

Aviles accessed Plaintiff’s home over 70 times and accessed the accounts of hundreds 

of other ADT customers in Texas.

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Plaintiff filed suit1 against ADT on behalf of herself and a putative class of “[a]ll

ADT Pulse customers in the United States whose security systems were remotely 

accessed by an employee or agent of Defendant ADT without authorization from the 

customer” and a putative subclass of “[a]ll ADT Pulse customers in the United States 

whose security systems were remotely accessed by Telesforo Aviles without 

authorization from the customer.” Plaintiff alleges that ADT sold the Pulse security 

system knowing customers’ deep concerns about privacy but failed to disclose that the 

system contained a flaw that permitted installers to obtain remote access to customers’ 

systems and video surveillance using unauthorized credentials.

The Amended Complaint alleges eight causes of action against ADT: Breach of

Contract (First Cause of Action); Negligence (Second Cause of Action); Violation of Texas 

DTPA (Third Cause of Action); Intrusion Upon Seclusion (Fourth Cause of Action); 

Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (Fifth Cause of Action); Negligent 

Hiring, Supervision, and Retention (Sixth Cause of Action); Intentional Infliction of 

Emotional Distress (Seventh Cause of Action); and Privacy Monitoring (Eighth Cause of 

Action).2 See generally, Am. Compl. (DE [47]). 

ADT raises seven grounds to dismiss the Amended Complaint with prejudice: (1)

the breach of contract claim fails to identify any term in the parties’ contract that ADT 

allegedly breached; (2) the Texas’ Deceptive Trade Practices Act (“DTPA”) claim lacks 

the particularity required by Rule 9(b); (3) the negligence, negligent hiring, and gross 

1 A second suit, Preddy v. ADT, LLC, Case No. 20-60971-CIV-SINGHAL, was filed on behalf of all 

individuals in the United States who reside in a household with an ADT Pulse security system but are not 

account holders. A motion to dismiss in that case is pending, raising both an arbitration issue and the 

grounds raised in the present motion.

2 The Amended Complaint also asserts three causes of action against Telesforo Aviles individually. 

(DE [47]).

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negligence claims are not viable under Texas law because Plaintiff fails to allege physical 

injury; (4) the Amended Complaint fails to allege intentional wrongdoing by ADT that 

would support claims for intentional infliction of emotional distress and intrusion upon 

seclusion; (5) the Amended Complaint does not allege conduct by ADT that violated the 

federal Computer Fraud and Abuse Act; (6) “Privacy monitoring” is not a viable cause of

action; and (7) Plaintiff has failed to plead a plausible class.

II. LEGAL STANDARDS

A. Motion to Dismiss Standards

At the pleading stage, a complaint must contain “a short and plain statement of the 

claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Rule 8(a) 

does not require “detailed factual allegations,” it does require “more than labels and 

conclusions;” a “formulaic recitation of the elements of a cause of action will not do.” Bell 

Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, “factual 

allegations must be enough to raise a right to relief above the speculative level” and must 

be sufficient “to state a claim for relief that is plausible on its face.” Id. “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). “The mere possibility the defendant acted unlawfully is 

insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 

1261 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 556 

U.S. 449 (2012).

In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally 

“limited to the four corners of the complaint.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 

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949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th 

Cir. 2002)). In reviewing the complaint, the court must do so in the light most favorable 

to the plaintiff, and it must generally accept the plaintiff’s well-pleaded facts as true. 

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). But “[c]onclusory allegations, 

unwarranted deductions of facts or legal conclusions masquerading as facts will not 

prevent dismissal.” Jackson v. Bellsouth Telecommunications, 372 F.3d 1250, 1262 

(11th Cir. 2004) (citation omitted); see also Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a 

court must accept as true all of the allegations contained in a complaint is inapplicable to 

legal conclusions”). 

B. Choice of Law

A federal court sitting in diversity under 28 U.S.C. § 1132(d)(2) applies the choice 

of law rule of the state in which it is located, in this case Florida. U.S. Fidelity & Guar. Co. 

v. Liberty Surplus Ins. Corp., 550 F.3d 1031, 1033 (11th Cir. 2008). The applicable test 

varies depending on the cause of action. This case involves both contract and tort claims. 

Florida applies the “most significant relationship test” as outlined in the Restatement 

(Second) of Torts to determine choice of law for tort actions. Melton v. Century Arms, 

Inc., 243 F. Supp. 3d 1290, 1299 (S.D. Fla. 2017); Bishop v. Fla. Specialty Paint Co., 389 

So.2d 999, 1001 (Fla. 1980)). For contract actions, Florida applies the doctrine of lex loci 

contractus and considers where the contract was executed. State Farm Mut. Auto. Ins. 

Co. v. Roach, 945 So.2d 1160, 1163 (Fla. 2006). 

Plaintiff lives in Texas, the security system was installed in Texas, Defendant’s 

Fort Worth, Texas office prepared and signed the contract, and Aviles accessed Plaintiff’s 

security system from Texas. The only contact this case has to the State of Florida is that 

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ADT has its principal place of business in Florida (DE [47], ¶ 10). The parties do not 

dispute that Texas law governs this action.

III. DISCUSSION

A. Breach of Contract

ADT moves to dismiss Plaintiff’s breach of contract claim on the ground that the 

Amended Complaint fails to identify any provision of the contract that was breached and, 

therefore, the breach of contract claim is inadequately pled. Plaintiff responds that her 

Amended Complaint clearly alleges a breach of an implied covenant “to provide a security 

system that was suitable for its advertised purpose and to not contain design flaws that 

compromise user safety and security.” (DE [47], ¶ 60). This alleged implied covenant 

forms the basis for Plaintiff’s breach of contract claim. ADT argues that Texas law does 

not permit creation of this implied covenant.

“Implied covenants are not favored in Texas law and, therefore, courts imply 

covenants in written contracts only in rare circumstances.” Estate of Scott, 2020 WL 

2736466, at *3 (Tex. App. May 27, 2020). In those rare circumstances, “however, a court 

may imply a covenant in order to reflect the parties’ real intentions.” Universal Health 

Servs., Inc. v. Renaissance Women's Grp., P.A., 121 S.W.3d 742, 747-48 (Tex. 2003). 

For example, “when it is clear that performance expressly promised by one party is such 

that it cannot be accomplished until a second party has first performed, the law will deem 

the second party to have impliedly promised to perform the necessary action.” Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 851 (Tex. 2009). In 

such cases, “courts may imply a return promise so the dealings of the parties can be 

construed to mean something rather than nothing at all.” Id. at 850. 

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In this case, Plaintiff alleges that she entered into a contract with ADT for security 

monitoring services. She contends, in essence, that the contract necessarily implies an 

agreement that the security monitoring services would be secure from intrusion by ADT’s 

employees. The Court agrees. A contract for a security monitoring service that is itself 

unsecure is a contract for “nothing at all.” Id.

ADT argues that the contract expressly disclaims the existence of any implied 

covenants:

24. ENTIRE AGREEMENT. THIS CONTRACT CONSTITUTES 

THE ENTIRE AGREEMENT BETWEEN THE PARTIES. I AM 

NOT RELYING ON ADT’S ADVICE OR ADVERTISEMENTS. 

ADT IS NOT BOUND BY ANY REPRESENTATION, PROMISE, 

CONDITION, INDUCEMENT OR WARRANTY, EXPRESS OR 

IMPLIED, THAT IS NOT INCLUDED IN WRITING IN THIS 

CONTRACT. . . .

(DE [55] ¶ 24). This provision cannot be a bar to an implied covenant to supply a security 

system reasonably secure from unauthorized access. The Pulse application is included 

with the standard monthly services under Services to Be Provided and the contract lists 

one bookshelf camera under Equipment To Be Installed (DE [55], Sections 2 and 3). 

Plaintiff alleges that the Pulse system had a vulnerability that gave third parties the ability

“to access the security system and various connected security devices including door 

locks and cameras.” At this stage in the proceedings, the Court cannot conclude that the 

parties’ “real intentions” for the security monitoring system included a system that could 

be remotely accessed by unauthorized parties. For this reason, the Court will deny ADT’s 

motion to dismiss the breach of contract claim.

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B. Federal Rule of Civil Procedure 9(b)

ADT moves to dismiss Plaintiff’s claim under the Texas Deceptive Trade Practices 

Act (“DTPA”), Tex. Bus. & Com. Code Ann. § 17.45, for failure to meet the pleading 

requirements of Rule 9(b). ADT contends that Plaintiff’s allegations are conclusory and 

lack recitation of the precise statements or misrepresentations made. The Court 

disagrees.

Rule 9(b) pleading requirements are designed to “alert[] defendants to the precise 

conduct with which they are charged, but are not so onerous as to ‘abrogate the concept 

of notice pleading.’” Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) 

(quoting Durham v. Bus. Management Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)). 

Rule 9(b) is satisfied if the complaint sets forth (1) precisely 

what statements were made in what documents or oral 

representations or what omissions were made, and (2) the 

time and place of each such statement and the person 

responsible for making (or, in the case of omissions, not 

making) same, and (3) the content of such statements and 

the manner in which they misled the plaintiff, and (4) what 

the defendants obtained as a consequence of the fraud.

U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1310 (11th Cir. 2002) (quoting 

Ziemba, 256 F.3d at 1202.

Plaintiff has met her burden of pleading under Rule 9(b). Plaintiff alleges facts 

describing the vulnerabilities in ADT’s Pulse system, ADT’s knowledge and expressed 

commitment to security issues, the date when Plaintiff purchased the home monitoring 

system, and her unwillingness to purchase the system if the vulnerabilities had been 

disclosed. The First Amended Complaint provides ADT with adequate notice of the basis 

for Plaintiff’s DTPA claim and, therefore, ADT’s Motion to Dismiss the DTPA claim is 

denied.

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C. Negligence Claim

ADT moves to dismiss Plaintiff’s negligence claim because she has not alleged a 

physical injury as required by Texas law. “For many breaches of legal duties, even 

tortious ones, the law affords no right to recover for resulting mental anguish.” TempleInland Forest Products Corp. v. Carter, 993 S.W.2d 88, 91 (Tex. 1999) (fear of developing 

cancer after asbestos exposure not actionable without physical injury). “Absent physical 

injury, the common law has not allowed recovery for intentional infliction of emotional 

distress except in certain specific, limited instances.” Id. ADT argues that because 

Plaintiff did not suffer physical injuries, her negligence claim cannot survive.

Plaintiff argues that the physical injury requirement is not as broad as Defendant 

contends. Whether a plaintiff can recover mental anguish damages without physical 

injury “depends on both the nature of the duty breached and the quality of proof offered 

by the plaintiff.” Id. at 91. Indeed, the Texas supreme court has held that although “there 

is no general duty not to negligently inflict emotional distress,” mental anguish can be 

compensated “in connection with defendant’s breach of some other duty imposed by law.” 

Boyles v. Kerr, 855 S.W.2d 593, 596 (Tex. 1993).3 “Without intent or malice on the 

defendant's part, serious bodily injury to the plaintiff, or a special relationship between the 

two parties, [Texas courts] permit recovery for mental anguish in only a few types of cases 

involving injuries of such a shocking and disturbing nature that mental anguish is a highly 

foreseeable result.” City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997). “These 

3 “Generally, an award of mental anguish damages must be supported by direct evidence that the nature, 

duration, and severity of mental anguish was sufficient to cause, and caused, either a substantial disruption 

in the plaintiff's daily routine or a high degree of mental pain and distress.” Serv. Corp. Int'l v. Guerra, 348 

S.W.3d 221, 231 (Tex. 2011). This is a matter of proof for trial.

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include suits for wrongful death, see Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 

549, 551 (Tex.1985), and actions by bystanders for a close family member's serious 

injury, see Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988).” Likes, 962 S.W.2d 

at 496; see also, Silcott v. Oglesby, 721 S.W.2d 290, 292 (Tex.1986) (intentional tort of 

child abduction); Leyendecker & Assocs, Inc. v. Wechter, 683 S.W.2d 369, 374 

(Tex.1984) (defamation); Billings v. Atkinson, 489 S.W.2d 858, 860–61 (Tex.1973) 

(invasion of privacy); Stuart v. Western Union Tel. Co., 18 S.W. 351, 353 (1885) (failure 

of telegraph company to timely deliver death message); Pat H. Foley & Co. v. Wyatt, 442 

S.W.2d 904, 906–07 (Tex. Civ. App. 1969) (negligent handling of corpse). These cases 

involved both negligent and intentional torts. The Texas supreme court has stated that 

“the law of mental anguish damages is rooted in societal judgments, some no longer 

current, about the gravity of certain wrongs and their likely effects.” Likes, 962 S.W.2d at

496.

Plaintiff argues that her negligence claim is not merely a claim for negligent 

infliction of emotional distress; instead, she alleges that ADT caused an invasion of 

privacy by failing to ensure that its cameras and set-up procedures were sufficiently 

robust to protect against unauthorized access and use. Specifically, she has alleged that 

“ADT had a duty to exercise reasonable care in ensuring that all ADT security systems 

were secure, safe to use, and inviolable by unauthorized parties.” (DE [47], ¶ 69). The 

Texas supreme court has held that “an unwarranted invasion of the right of privacy 

constitutes a legal injury for which a remedy will be granted.” Billings, 489 S.W.2d at 860 

(Tex. 1973). Billings involved an intentional act of wiretapping and the plaintiffs suffered 

no physical injury, but the court recognized that “[d]amages for mental suffering are 

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recoverable without the necessity of showing actual physical injury in a case of willful 

invasion of the right of privacy because the injury is essentially mental and subjective, not 

actual harm done to the plaintiff's body.” Id. at 861. 

The question of whether a cause of action exists for negligent invasion of privacy

is not resolved in Texas. Wheeler v. Yettie Kersting Mem. Hosp., 866 S.W.2d 32, 54 

(Tex. App. 1993) (recognizing that the issue of negligent invasion of privacy was 

abandoned by the plaintiff in Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993)).4 If 

Texas law were to recognize a duty by ADT to protect Plaintiff’s privacy from being 

invaded through the very security system it installed, a claim for mental anguish damages 

arising from negligent breach of that duty could be brought. See Boyles, 855 S.W.2d at 

596 (“Our decision [that there is no general claim for negligent infliction of emotional 

distress] does not affect a claimant’s right to recover mental anguish damages caused by 

Defendant’s breach of some other legal duty.”). 

Texas courts do recognize an individual right of privacy. Billings, 489 S.W.2d at 

861 (invasion of privacy is a willful tort). A Texas appellate court recently discussed the 

right of citizens to be free of unauthorized observation in their homes:

The State has an interest in protecting its citizens' personal 

privacy and security in the seclusion of their homes where they 

have a legitimate right to expect to be free from prying eyes and 

lenses. The United States Supreme Court has recognized that 

“[t]he State's interest in protecting the well-being, tranquility, 

and privacy of the home is certainly of the highest order in a 

free and civilized society.” Frisby [v. Schulte], 108 S. Ct. 2495, 

2502 (1988) (quoting Carey v. Brown, 447 U.S. 455, 471, 

(1980)). Texas has long proscribed “peeping Tom” activity by 

4 The court in Boyles noted that the plaintiff’s claim for negligent invasion of privacy had been abandoned 

before trial. 855 S.W.2d at 601, n.7. Only the claim for negligent infliction of emotional distress was tried to 

the jury, who returned a verdict for the plaintiff. The Texas supreme court held that no cause of action 

existed for negligent infliction of emotional distress but remanded the case to permit the plaintiff to proceed 

on a viable cause of action. Id. at 603.

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making it a crime to peer into a person's home or hotel room 

through a window or other opening. See, e.g., Tex. Penal Code 

§§ 42.01(11) (disorderly conduct); 21.17 (voyeurism). The 

individual's interest in seclusion and the State's interest in 

protecting it are no less when the peeping Tom wields a camera 

or peers remotely by means of a camera or electronic 

transmission device hidden in the home. “[I]n the privacy of the 

home, the individual's right to be left alone plainly outweighs the 

First Amendment rights of an intruder.” F.C.C. v. Pacifica 

Found., 438 U.S. 726 (1978).

The right of privacy also includes rights to bodily integrity and 

sexual privacy. A person's fundamental interest in bodily 

integrity and sexual privacy have been recognized as liberty 

interests that are protected from unwarranted state interference 

by the Due Process Clause. See Lawrence v. Texas, 539 U.S. 

558, 564-67; Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 

833 (1992). Those interests are invaded by a private actor who 

creates unconsented visual images of a person in a place such 

as a changing room or a bathroom where people are 

vulnerable, expose their bodies, and engage in highly private 

activities with the reasonable expectation they are not being 

photographed or recorded. 

 

Ex parte Metzger, 2020 WL 5027397, at *11 (Tex. App. Aug. 26, 2020). Texas courts 

place a great value on citizens’ privacy. In that ADT endeavored to provide Plaintiff with 

a security system to prevent intrusion, the Court concludes that ADT has a duty under 

Texas law to reasonably protect Plaintiff from invasions of privacy through unauthorized 

access of that system and that Plaintiff may recover damages for mental anguish caused 

by a breach of that duty, even in the absence of physical damages. Thus, Plaintiff’s First 

Amended Complaint states a claim for negligent invasion of privacy.

Likewise, the First Amended Complaint also states a claim for negligent hiring 

and/or supervision of Aviles. Taking the allegations of the First Amended Complaint as 

true, Aviles committed several torts arising from his installation of the Pulse security 

system in Plaintiff’s home that Plaintiff alleges could have been prevented had he been 

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better supervised. Plaintiff having alleged legally recognized torts and damages

committed by Aviles while accessing ADT’s equipment, the Court concludes that Plaintiff 

has stated a claim for negligent hiring/supervision. See Wansey v. Hole, 379 S.W.3d 

246, 247 (Tex. 2012) (quoting Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 

384 (Tex. App. 2005) (“To prevail on a claim for negligent hiring or supervision, the plaintiff 

is required to establish not only that the employer was negligent in hiring or supervising 

the employee, but also that the employee committed an actionable tort against the 

plaintiff.”)).

Finally, Defendant moves to dismiss Plaintiff’s claims for gross negligence, which 

forms the basis for her claim for exemplary damages. To recover exemplary damages, 

Plaintiff “must show both an elevated likelihood of harm and that the magnitude of the 

harm was very substantial.” Kovaly v. Wal-Mart Stores Texas, LLC, 157 F. Supp. 3d 666, 

671 (S.D. Tex. 2016). This is a matter of proof and it is, therefore, premature to make the 

determination on exemplary damages at this stage.

D. Intentional Tort Claims

ADT moves to dismiss the two intentional tort claims alleged by Plaintiff –

intentional infliction of emotional distress and intrusion upon seclusion – on the ground 

that she has not pled any facts to support the conclusion that ADT acted intentionally and 

without any basis in law or fact to hold ADT vicariously liable for the acts of its former 

employee.

1. Intentional infliction of emotional distress

ADT argues that Plaintiff’s claim for intentional infliction of emotional distress must 

be dismissed because (1) ADT’s alleged conduct cannot support the claim and (2) the 

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claim is insufficiently pled. “To recover damages for intentional infliction of emotional 

distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) 

the conduct was extreme and outrageous; (3) the actions of the defendant caused the 

plaintiff emotional distress; and (4) the resulting emotional distress was severe.” GTE 

Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) (quoting Standard Fruit & 

Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998)). “In determining whether 

certain conduct is extreme and outrageous, courts consider the context and the 

relationship between the parties.” Id. at 612. An action that is intentional, malicious, or 

even criminal does not, standing alone, mean that it is extreme or outrageous for 

purposes of intentional infliction of emotional distress. Brewerton v. Dalrymple, 997 

S.W.2d 212, 215 (Tex. 1999). The conduct must be “so outrageous in character, and so 

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded 

as atrocious, and utterly intolerable in a civilized community.” Id. at 216.

ADT argues that allegedly “allowing technicians to create authorized user 

accounts” or failing to discover such conduct occurred is not the type of outrageous 

conduct required to sufficiently allege a claim for intentional infliction of emotional distress. 

Plaintiff argues that the subjectivity of the legal standard for outrageousness has led 

Texas and federal courts to find a wide variety of conduct outrageous and that dismissal 

at the pleading stage is premature. The Court agrees that dismissal of this claim is 

premature. The nature of the conduct must be analyzed in context of the facts 

surrounding the parties’ relationship. Plaintiff alleges that ADT knew of customers’ 

concerns with privacy and hacking, advertised its home security system as safe, and yet 

created a situation where nonauthorized users could grant themselves access to 

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customers’ systems. Much more needs to be known to permit the Court to evaluate the 

outrageousness of ADT’s conduct. The Motion to Dismiss the intentional infliction of 

emotional distress claim will be denied.

2. Intrusion Upon Seclusion

ADT moves to dismiss Plaintiff’s Intrusion Upon Seclusion claim on the ground that 

she cannot plausibly allege that ADT intentionally intruded, physically or otherwise, upon 

her solitude, seclusion or private affairs or concerns which would be highly offensive to a 

reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). Although 

the intrusion alleged by Plaintiff clearly meets the “highly offensive” standard, the Court 

agrees with ADT and holds that Plaintiff has not and cannot allege facts to sustain a claim 

for intrusion upon seclusion by ADT. The voyeurism suffered by Plaintiff was not 

committed by ADT, but rather by ADT’s employee. Plaintiff alleges that ADT knowingly 

installed an unsecure security system in Plaintiff’s home, which “left the door open” for its 

employee to spy on Plaintiff and her family and that installation amounts to an intrusion 

upon seclusion. While those facts may be true, they do not support the conclusion that 

ADT committed the intrusion. Plaintiff’s reliance on Crosstex N. Texas Pipeline, L.P. v. 

Gardiner, 505 S.W.3d 580, 605 (Tex. 2016) is not applicable. Crosstex involved a 

nuisance claim, and the court addressed the intent required to hold a defendant liable for 

a nuisance: “the evidence must establish that the defendant intentionally caused the 

interference that constitutes the nuisance.” Id. This line of reasoning has no bearing on 

the tort of intrusion upon seclusion, which requires an actual intrusion, physical or 

otherwise. Valenzuela, 853 S.W.2d at 513. Again, ADT did not commit an intrusion on 

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Plaintiff’s privacy. Accordingly, Defendant’s motion to dismiss the Intrusion Upon 

Seclusion claim will be granted.

3. Respondeat Superior

ADT moves to dismiss Plaintiff’s intentional tort claims to the extent they are 

founded upon the doctrine of respondeat superior. ADT argues that Texas law does not 

allow vicarious liability to attach under the facts alleged in Plaintiff’s First Amended 

Complaint. The Court agrees.

“Under Texas law, ‘a principal is vicariously liable for the torts of [his agents] 

committed in the course and scope of their employment.’” Ross v. Marshall, 426 F.3d 

745, 763–64 (5th Cir. 2005) (quoting GTE S.W., 998 S.W.2d at 617). An employee can 

only be found to be acting within the course and scope of his employment if his actions 

are “(1) within the general authority given him; (2) in furtherance of the employer's 

business; and (3) for the accomplishment of the object for which the employee was 

employed.” Id. (citations omitted). “An employee's intentional, tortious conduct falls within 

the scope of employment when the conduct, even if contrary to express orders, is of the 

same general nature as that authorized or incidental to the conduct authorized.” Zarzana 

v. Ashley, 218 S.W.3d 152, 159 (Tex. App. 2007). “If the intentional tort is committed in 

the accomplishment of a duty entrusted to the employee . . . the employer may be liable.” 

GTE S.W., 998 S.W.2d at 617-18 (inappropriate actions toward subordinate employees 

within the scope of position as supervisor). The “scope of authority may be a question of 

law in the absence of disputed questions of fact.” Ross, 426 F.3d at 764. 

The First Amended Complaint alleges injuries caused by voyeurism committed by 

ADT’s employee. Although Plaintiff can and has alleged that ADT was negligent in 

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enabling Aviles to have access to her security system, Plaintiff alleges no facts to 

establish that Aviles’ unauthorized access of her security system was in furtherance of 

ADT’s business or committed in the accomplishment of a duty entrusted to an employee. 

Unlike an overly aggressive bouncer who injures a bar patron, Durand v. Moore, 879 

S.W.2d 196 (Tex. App. 1994), or a supervisor whose management style created a hostile 

work environment, GTE S.W., 998 S.W.2d at 617-18, Aviles’ unauthorized access of 

Plaintiff’s security system was unrelated to his job duties and conducted in furtherance of 

his own interests. Texas law does not attach liability to the employer under these 

circumstances. See Buck v. Blum, 130 S.W.3d 285 (Tex. App. 2004) (hospital not 

vicariously liable for sexual assault committed by doctor in course of physical examination 

of patient). For this reason, Plaintiff may not seek to hold ADT vicariously liable for any 

intentional torts that may have been committed by Aviles.

E. Computer Fraud and Abuse Act, 18 U.S.C. § 1030

The Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “Act”), prohibits 

unauthorized access of computer systems and grants a cause of action for damages 

against a violator of the Act. 18 U.S.C. § 1030(g).5 Several “courts have held that an 

employer can be vicariously liable for an employee's violations of the CFAA if those 

transgressions occur in the scope of employment or the employer directs the employee's 

5 The civil damages section states: “Any person who suffers damage or loss by reason of a violation of this 

section may maintain a civil action against the violator to obtain compensatory damages and injunctive 

relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct 

involves 1 of the factors set forth in subclauses4 (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). Damages 

for a violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited to economic 

damages. No action may be brought under this subsection unless such action is begun within 2 years of 

the date of the act complained of or the date of the discovery of the damage. No action may be brought 

under this subsection for the negligent design or manufacture of computer hardware, computer software, 

or firmware.” 18 U.S.C.A. § 1030(g) (West).

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conduct.” NetApp, Inc. v. Nimble Storage, Inc., 41 F. Supp. 3d 816, 835 (N.D. Cal. 2014)

(citing SBM Site Servs., LLC v. Garrett, 2012 WL 628619, at *6 (D. Colo. Feb. 27, 2012) 

(“It is reasonable to infer that Garrett accessed SBM's laptop during the time that he was 

employed with Able and in the scope of such employment.”); Charles Schwab & Co. v. 

Carter, 2005 WL 2369815, at *6 (N.D.Ill.2005) (“the Court assumes that Congress drafted 

the CFAA with an intent to permit vicarious liability”)). ADT disputes that vicarious liability 

is available under the Act and cites cases to support its position. Doe v.DartmouthHitchcock Med. Ctr., 2001 WL 873063, at *5 (D.N.H. July 19, 2001) (finding that a theory 

of vicarious liability is not “permitted by the language of the CFAA itself, nor would it further 

the basic purpose of the Act”); QVC, Inc. v. Resultly, LLC, 159 F. Supp. 3d 576, 589–90 

(E.D. Pa. 2016) (concluding that “even assuming that Congress intended to allow 

vicarious liability for CFAA claims,” such a claim could not withstand dismissal where the

complaint did not plead any facts on which such liability could be based).

The Court need not make that determination. Even assuming the Act permits 

vicarious liability, Aviles’ unauthorized access of Plaintiff’s security system was not in the 

course and scope of his employment, as discussed at length above. Accordingly, Count 

V of the First Amended Complaint will be dismissed.

F. Privacy Monitoring

Count VIII of Plaintiff’s First Amended Complaint seeks “injunctive relief, requiring 

ADT to create a fund sufficient to cover the costs of commercial and/or legal services 

needed to remedy the invasion of privacy that they have suffered, including (1) monitoring 

for the distribution of images or video from their homes, (2) taking down any such media 

that is posted, and (3) providing any such further relief as the Court deems equitable and 

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just.” (DE [47], ¶ 123). ADT moves to dismiss this count on the ground it is not a viable 

cause of action. ADT argues that injunctive relief is a remedy, not a separate cause of 

action. Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005) 

(quotation omitted); Espinoza v. Countrywide Home Loans Servicing, L.P., 2014 WL 

3845795, at *7 (S.D. Fla. Aug. 5, 2014), aff'd sub nom. Espinoza v. CountrywideHome 

Loans Servicing, LP, 708 Fed. Appx. 625 (11th Cir. 2017). 

The Court agrees with ADT that privacy monitoring is not a separate cause of 

action; the Court also agrees with Plaintiff that injunctive relief may be an available 

equitable remedy in the event ADT is held liable on the claims raised by Plaintiff. 

Accordingly, the Court will deny as moot Defendant’s Motion to Dismiss Count VIII.

G. Class Action Allegations

ADT moves to dismiss or strike Plaintiff’s class action allegations because she has 

failed to plead a plausible class definition. The Court will determine the plausibility and 

suitability of the proposed class after class certification issues have been briefed. 

IV. CONCLUSION

For the reasons set forth above, the Court concludes that, with limited exceptions, 

Plaintiff’s First Amended Complaint states a cause of action under Texas law. 

Accordingly, it is hereby

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ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss First Amended 

Complaint (DE [58]) be and the same is GRANTED IN PART AND DENIED IN PART. 

Count IV (Computer Fraud and Abuse Act) and Count IX (Intrusion Upon Seclusion) are 

DISMISSED WITH PREJUDICE. The Motion to Dismiss is otherwise DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 30th day of 

December 2020.

Copies furnished counsel via CM/ECF

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