COUNCIL ON AMERICA N-ISLAMIC

RELATIONS ACTION NETWORK, INC. , et al. , Plaintif fs , v. P AUL DAVID GAUBATZ , et al. , Defendants
. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-02030 ( CKK)

MEMORAN DUM OP INION (June 24, 2011) Plaintiffs Council on American- I slamic Relations Action Networ k, I nc. (“ CAI R-AN”) and CAI R-Founda

tion, I nc. (“ CAI R-F” ) bringthis action ag ainst two sets of def endants: Paul David Ga ubatz and Chris Gaubatz (the “G aubatz Def endants” ); and the Cente r for Security Policy , I nc. (“ CSP ”) a

nd three of its employ ees, Christine B rim, Adam Savit, and Sara h Pavlis (collec tively

with CS P, the “CSP Def endants” ). Plaintiffs alleg e that De fenda nts conce ived and
car ried out a sc heme to plac e Chris Gaubatz i n an internship with CAI R-AN under an assumed identity , which allowe d him to remove and c opy thousands of Plaintiffs’ interna l documents and to rec ord private conver sations involving Plaintiffs’ employ ees w ithout consent or authorization. Plaintiffs contend that De fenda nts therea fter publicly

disclosed and published the c ontents of those documents and r ecor dings. In this action, Plainti ffs see k relief under Titles I

and I Iof the Electronic Communi cations Privacy Act of 1986 ( the “ECPA”) , 18 U.S.C. §§ 2510-2712, and the common law of the District of Columbia. 1 All the parties that ha

ve appe are d in this action to date ag ree that District of Columbia 1 law applies to Plaintiffs’ c ommon law claims.There are three motions pending be fore the Court and addr essed in this memorandum

opinion: the Gaubatz Defe ndants’ [34] Motion to Dism iss Under Rule 12(b) (6) of the Fe dera l Rules of Civil P roce dure ( “Motion to Dismis s”); Plaintiffs’ [43] Motion to Amend Compl aint (“F irst Motion t o Amend”) ; and Plaintiffs’ [48] Motion for L eave to File Second A mended Complaint (“Second Motion to Amend”). U pon consideration of the submissions by Plaintiffs and the Ga

ubatz Defe ndants, the re levant author ities, and the re cord a s a whole, the Court shall g rant in par

t and deny

in part the Ga

ubatz Defe ndants’ Motion to Dismis s and g rant Plaintiffs’ First Motion to Amend and Sec ond Motion to Amend. I. BACKG ROUND A. Factual B ackground CAI R-AN is a self

-desc ribed national Muslim advoca cy g roup with a mission that includes enha

ncing the under standing of I slam and promoting a positive imag e of Muslims in the United States. Second Am. Compl. (“2d Am. Compl.”), ECF No. [48-4] , ¶ 10. CAI R-F is an 2 org anization supporting CAI R-AN and its mission. Id. ¶ 11. B oth CAI R-AN and CAI R-F a re non-prof it corporations incorporate d in the District of Columbia. Id. ¶¶ 10- 11. They share phy sical off

ice spa ce in the D istrict of Columbia that is gene rally closed to the public a

nd
acc essible to third parties only upon invitation. Id. ¶¶ 10- 11, 27. Chris Gaubatz is Paul David Gaubatz’s son. 2d Am. Compl. ¶¶ 12-13. CSP i s a nonprofit cor poration incorpor ated a

nd located in the D istrict of Columbia. Id. ¶ 14. Christine Br im,
This fac tual backg round is derive d from the we ll-pleade d fac tual alleg ations in the 2 Second Amende d Complaint, which becomes the ope rative iter ation of the Complaint by virtue of the Court’s de cision today
. See E rickson v. Pardus , 551 U.S. 89, 94 (2007) (“ [W ]hen ruling on a def endant’ s motion t o dismiss , a judg e must acc ept as true all of the fa ctual alleg ations contained in the c omplaint.”). 2Adam Savit, and Sara h Pavlis are a ll employ ed by CSP
. Id. ¶¶ 15- 17. Sometime prior to April 2008, Defe ndants conc eived a plan to infiltrate Plaintiffs’ off ices with the aim of obtaining Plaintiffs’ internal doc uments and re cordingconver sations involving Plaintiffs’ employ ees. 2d A m. Compl . ¶ 19. Ac cordingto their plan, Chris Gaubatz would attempt to secure an internship with CAI R-AN under an assumed ide ntity

and deliver

any materia ls that he was a

ble to obtain from Plaintiffs’ off ices to Paul David Ga

ubatz and the CSP Def endants for

further dissemination. Id. In further ance of this plan, the Gaubatz Defenda nts enter ed into two written ag ree ments with CS P to provide CSP with materials. Id. ¶ 35. Consist ent with the agree d-upon plan, Chris Gaubatz s oug ht and obtained a n internship with the office for CAI R-AN Mar yland/Virg inia in April 2008. 2d Am. Compl. ¶ 20. Howe ver, in J une 2008, af

ter it was a

nnounced that the office for CAI R-AN Mar yland/Virg inia would be closing , Chris Gaubatz sought a n internship at CAI R-AN’s he adquar ters in the District of Columbi a. Id. ¶¶ 10, 21. Chris Gaubatz obtained his internship with CAI R-AN under false pr etense s. During the application proc ess, he made false statements and omitted important fac ts about his backg round, interests, and intentions. 2d Am. Compl. ¶¶ 22-23. Amongother thing s, he used a n assumed
name a nd repr esente d that he wa s a student at a liber al ar ts colleg e, that his fathe r wa s in the construction business, and that he was a prac ticing Muslim. Id. ¶ 22. When Chris Gaubatz made these re prese ntations, he knew the m to be false, a nd he made them in order to induce Plaintiffs to repose trust and conf

idence in him so t hat he mig ht obtain an internship with CAI R-AN. Id. ¶¶ 23-25. He succe eded a

nd was hire d as an inter

n. Id. ¶ 29. As a c ondition of and in consideration for his internship, Chris Gaubatz signe d a
3confide ntiality and non-disclosure ag ree ment (the “ Confidentiality Ag ree ment”). 2d A m. Compl
. ¶¶ 29, 102. The other pa

rty to the agree ment is identified as the “ Council on America n-I slamic Relations.” Id. Ex . A (Confidentiality Ag ree ment) at 1. The ag ree ment provides: Non-Disclosure of “Conf idential In form ation” I agre e t h at I shall not at any time afte r the termination of my internship with CAI R, use for my self or others, or disclose or divulge to others
. . . any trade secr ets, confide ntial information, or any other proprieta ry data of CAI R in violation of this agr ee m en t
. . . . The intern further ag ree s to take and protec t the s ecr ecy of, and to avoid disclosure or use o f, t h e “Confidential I nformation” in order to preve nt it from falling into public domain or into the posses s i o n of persons not bound to maintain the confide ntiality of Confidential I nformation. Id. Ex . A (Confidentiality Ag ree ment) at 1-2. Paul Da vid Gaubatz and the CSP Defenda nts were
awa re of the Confidentiality

Ag ree ment beca

use Chris Gaubatz t old them that he had signed the ag ree ment. Id. ¶ 31. Chris Gaubatz worked a s an intern f or CAI R-AN until Aug ust 2008, though he returne d to perfor m additional work over

a we ekend in Septembe r 2008. 2d Am. Compl. ¶ 32. During the cour se of his internship, he soug ht to collect information about Plaintiffs and the ir employ ees with the intention of publicly disclosing that infor

mation for prof

it and in order to c ast Plaintiffs in a neg ative lig ht. Id. ¶ 36. To that end, he phy sically remove d more than 12,000 of Plaintiffs’ internal doc uments without authorization and delivered those doc uments to Paul David Gauba tz. Id. ¶¶ 37- 38. Electronic documents, including e-ma ils and computer- g ener ated spre adshee ts,
wer e obtained by

acc essing Plaintiffs’ computers a nd computer sy stems with user-names and passwords that we re not a ssigne d to him. Id. ¶¶ 40- 41. Chris Gaubatz also used a c oncea led elec tronic devic e to make a udio and video
4rec ording s of conve rsations involving Plaintiffs’ e mploy ees w ithout authoriz ation and conse nt.

2d Am. Compl. ¶ 42. He was a ble to compile over

fifty computer discs c ontaining r ecor dings of Plaintiffs’ employ ees. Id. ¶ 44. The G aubatz Def endants de livered the rec ording s to CS P and Christine Brim who, with the a ssistance of the other CSP Defenda nts, org anized and edited the
rec ording s. Id. ¶¶ 45- 46. Def endants publicly

disclosed the docume nts and rec ording s that they obtained fr om Plaintiffs. The CSP Def

endants provide d a compilation of re cording s to the third-party publisher of WND Books a

nd a we bsite identified as WorldNet Da ily , http:// www.wnd.c om (last visited J une 17, 2011). 2d A m. Compl . ¶ 47. Mea nwhile, Paul David Ga

ubatz posted documents and
rec ording s on his blog, David Gaubatz, http:// dg aubatz.blogspot.c om (last visited J une 17, 2011). 2d Am. Compl. ¶¶ 56-57. In addition, Paul David Gauba tz and a co-a

uthor wrote a

book about Chris Gaubatz’s internship with CAI R-AN. Id. ¶ 48; see also P. David Gaubatz & Paul Sperry , Muslim Mafia: Inside the Se cret W orld That ’s Conspiring t o Islamize Ame rica (1st ed., WND Books 2009) (“

Muslim Mafia ”). In Muslim Mafia , the authors c hara cter ize Chris Gaubatz’s internship as a “ six -month counterintellig ence operation,” admitting that Chris Gauba tz “routinely load[ed] t he trunk of his c ar w ith box es of se nsitive documents and deliver [ed] them into the custody

of investig ative proje ct leade r P. David Ga ubatz.” 2d Am. Compl. ¶ 50. The book ref ere nces a nd quotes from mate rials obtained f rom Plaintiffs’ offic es, including internal memoranda , minutes of board me eting s, budg et re ports, rea l estate re cords, ba nk statements, strateg y paper s, employ ee e valuations, and e -mails. Id. ¶ 51.

5B. Procedural Background

The orig inal Complaint was filed on Octobe r 29, 2009. SeeCompl., EC F No. [1]. The Complaint was filed in the name of the “Council on Amer ican- I slamic Relations,” which f or
rea sons that will soon become cle ar the Court will refer to as CAI R-AN. See infra Part I I I .A. The Complaint named as de fenda nts the Gaubatz Defenda

nts and ten John and J ane D oes whose identities were then unknown but who we re a lleg ed to have participated in and bene fitted from the ac tiviti es alleg ed in the Complaint. 2d Am. Compl . ¶¶ 12- 14. The orig inal Complaint
asser ted a sing le claim under

Title I Iof the ECPA and c ommon law claims for c onversion, brea ch of f

iduciary duty , brea ch of c ontrac t, and trespa ss. Id. ¶¶ 49- 77. Contemporaneous w ith the filing of the Complaint, C AI R-AN moved f or a te mporary restra ining or der a

nd a pre liminary

injunction. SeeMem. in Supp. of Pl.’s Mot . for a TRO & Prelim. I nj., ECF No. [2-1]. On November 2, 2009, a fter r epeated ef forts to contac t the Gaubatz Def endants prove d fruitless, the Court held an ex partehear ing to a ddress CAI R-AN’s r equest for a temporar y restra ining or der. See Min. Entry (Nov. 2, 2009). O n November 3, 2009, the Court gr anted in par

t and denied in pa

rt CAI R-AN’s motion for a temporar y restra ining or der, temporar ily

prohibiting the G aubatz Def endants fr om making c erta in uses of mater ials obtained from Plaintiffs’ off

ices a nd requiringthe re turn of such materials to CAI R-AN’s c ounsel. See Council on American-I

slamic Relations v. Gaubatz , 667 F. Supp. 2d 67 (D.D .C. 2009). On Novembe r 19, 2009, CAI R-AN and the Gaubatz Defenda nts joint ly moved for a consent orde r g rantingCAI R-AN’s motion for a preliminary

injunction. SeeJ oint Mot. t o Enter Consent Order

Gra nting Pre lim. I nj., ECF No. [19] . That same da y , the Court enter ed the proposed c onsent order
. SeeConsent Order Gra nting Pre lim. I nj., ECF No. [22] . Pursuant to
6that order , the Gauba tz Defenda

nts are ( a) e njoined from makingany use, disclosure, or publication of any

document obtained f

rom any office or fa cility

of CAI R-AN, any

rec ording of meeting s of or c onversations invol ving CAI R-AN’s of ficials or e mploy ees, a

nd any copies of such docume nts or rec ording s, (b) re quired to re move from a ny website or blogunder the ir control any

such docume nts or rec ording s, and (c ) re quired to re turn any such docume nts or
rec ording s, including a

ny copies, to CAI R-AN’s c ounsel. See id. ¶¶ 1- 4. Subsequently , the Court clarifie d that its order pe rmits the Gaubatz Def endants’ c ounsel, but not the Gaubatz Def endants themselve s, to retain copie s of the docume nts at issue for indexing purpose s. See Orde r (De c. 10, 2009), ECF No. [30] , at 2. Absent fur ther a ction from the Court, the pr eliminary injunction will remain in effe ct throug hout this action. See Consent Order Gra nting Pre lim. I nj., ECF No. [22], ¶ 5. Following resolution of CAI R-AN’s motion for a preliminary

injunction, the Court g rante d CAI R-AN lea

ve to depose CSP based on CAI R-AN’s r epre sentations that CSP was believed to be in possession of materials obtaine d from Plaintiffs’ off ices. SeeOrde r (De c. 10, 2009), ECF N o. [30] , at 4. CAI R-AN subseque ntly deposed Christine B rim as CSP ’s desig nated ag ent under

Rule 30(b)(6) of the F eder al Rules of Civil P roce dure. See Tr. of D ep. of Christine Br im, ECF No. [48-3] . To date, no othe r discover y has bee n authorized by

the Court. On Dec ember

20, 2009, the Gaubatz Defenda nts filed their [34] Motion to Dism iss. On Marc h 1, 2010, afte r the Ga ubatz Defe ndants’ Motion to Dismis s was fully briefe d, Plaintiffs filed their [43] First Moti on to Amend. On Apr il 12, 2011, after Plaintiffs’ F irst Motion t o Amend wa s fully

briefe d, Plaintiffs filed their [48] Second Motion to Amend. All three motions
wer e fully

briefe d as of Ma

y 23, 2011 and re main pending . Be cause the three motions raise a

7number of ove rlappingissues, they are addre ssed tog ether

in this m emora

ndum opinion. W hile the Court’s dec ision is based on the rec ord as a whole, its considera

tion of these thre e motions has foc used on the followingdocuments, listed in chronolog ical orde r of their filing:

• The Gaubatz Defendan ts’ Motion to Dism iss: Def s.’ Mem. in Supp of Mot. to D is mi s s Un der Fe dera l Rule of Civil Procedur e 12(b)( 6) (“D efs.’ MTD Mem.”), ECF No. [34-1] ; Pls.’ Resp. in Opp’n to Mot. to Dismiss (“Pls.’ MTD Opp’n” ), ECF No. [37] ; Defs.’ Reply

Br . on Mot. to Dismi ss (“De fs.’ MTD Reply .”), ECF No. [39]
.

• P laintif

fs’ F irst Motion to Ame nd: Pls.’ Mem. of P
. & A. in Supp. of P ls.’ Mot. 1 to Amend Compl. (“Pls.’ MTA Mem.”), E CF No. [43-1]; Def s.’ Opp’n to Mot. to 1 File Am. Compl. (“D efs.’ MTA Opp’n” ), ECF No. [44] ; Pls.’ Reply Mem. in Supp. 1 of Pls.’ Mot. to Amend Compl . (“Pls.’ MTA Reply ”), ECF No. [45]
.

• P laintif

fs’ Second Motion to Am end: Pls.’ Mem. in Supp. of Mot. for L eav e t o 2 File Seco n d Am
. Compl. (“Pls.’ MTA Mem.”), ECF No. [48-2] ; Def s.’ Opp’n to 2 Pls.’ Mot. to File a Second Am. Compl. (“D efs.’ MTA Opp’n” ), ECF No. [62] ; Pls.’ Reply to Opp’n to Mot. for L eave to File a Sec ond Am. Compl., EC F No. [64]. Rece ntly , this action has foc used on proc eeding s conce rning Paul David Gaubatz’s compliance with the preliminary injunction ordere d by

this Court. For the time being , those proce eding s are being conducte d under se al. SeeSealed Or der to Show Cause ( Apr. 18, 2011), ECF No. [49]; Sealed Or der ( Apr. 28, 2011), E CF No. [57] ; Sealed Or der ( May 3, 2011), ECF No. [59] ; Sealed Or der ( J une 2, 2011), ECF No. [68] . The proc eeding s remain ong oing. II. LEGAL STANDARDS Under the Fe dera l Rules of Civil Procedur e, a c omplaint must contain “a short and plain statement of the c laim showing that the pleade r is entitled to relief,” Fe d. R. Civ. P . (8)( a), “ in order to ‘g ive the def

endant f air notice of what the . . . claim is and the g rounds upon which it rests,’” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)). Rule 12( b)(6) provides a ve hicle for parties to cha lleng e the suff iciency of a complaint on the g round that it “fa il[ s] t o state a c laim upon which re lief ca n be g rante d.” F ed. 8R. Civ. P . 12(b)( 6). When prese nted with a motion to dism iss for fa ilure to state a c laim, the

district court must acc ept as true the well-ple aded f actua l alleg ations contained in the c omplaint. Atherton v. D.C. Office of May or , 567 F.3d 672, 681 ( D.C. Cir. 2009), cert. de nied , __ U.S. __, 130 S. Ct . 2064 (2010). Althoug h “deta iled fac tual alleg ations” ar e not nec essar y to withstand a Rule 12(b)(6) motion to di smiss, t o provide the “ g rounds” of “entitle[ment] to relief,” a plaintiff must furnish “more tha

n labels and c onclusions” or “ a for mulaic re citation of the e lements of a
cause of ac tion.” Twombly , 550 U.S. at 555. “Nor does a c omplaint suffice if it tende rs ‘naked
asser tion[ s]’ devoid of ‘fur

ther fa ctual enha

nceme nt.’” Ashcroft v. Iqbal , __ U.S. __, 129 S. C t. 1937, 1949 (2009) ( quoting Twombly , 550 U.S. at 557). Rather , a complaint must contain sufficie nt fac tual alleg ations that, if acc epted a s true, “state a c laim to relief that is plausible on its face .” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y when the pla intiff pleads fac tual content that allows the c ourt to draw the rea sonable infe renc e that the de fenda nt is li able for the misconduc t alleg ed.” Iqbal , 129 S. Ct . at 1949. The pla intiff must provide more than just “a she er possibility

that a def endant ha s acte d unlawfully .” Id. at 1950. When a complaint’s well-plea ded fa cts do not enable a cour t, “dra w[ing] on its judicial experience and common sense,” “to infer

more than the mere possibili ty of misconduct,” the complaint has not shown that the pleade r is entitled to relief. Id. Under the Fe dera l Rules of Civil Procedur e, a pa rty may amend its pleading s once a s a matter of c ourse within a pr escr ibed time period. See Fe d. R. Civ. P . 15(a) (1). Where , as her e, a party seeks to ame nd its pleading s outside that time period, it may do so only

with the opposing party ’s written c onsent or the district cour t’s leave
. See Fe d. R. Civ. P . 15(a) (2). The decision whether to gr ant leave to amend a c omplaint is entrusted to the sound discretion of the district

9court, but leave “should be fre ely g iven unless there is a g ood rea son, such as futility , to the contra ry .” W illoughby v. Potomac Ele c. Power Co. , 100 F.3d 999, 1003 ( D.C. Cir. 1996), cert. denied , 520 U.S. 1197 (1997). As the Supre me Court has obser ved: I f the underly

ing fac ts or circ umstances relied upon by a plaintiff may be a proper subject of relief , he ought t o be afforde d an opp ortunity to test his claim on the merits. I n the absenc e of any appar ent or decla red rea son—such as undue delay , bad faith or dilatory motive on the part of the movant, repe at ed failure to cure defic iencies by amendments previously allowed, undue prejudice to the o p posing party by virtue of allowan ce of the amendment, futility of amendment, et c.
— t h e leave soug ht should, as the rules require , be “fr eely g iven.” Foman v. D avis , 371 U.S. 178, 182 (1962). “[A] dist rict cour t has discre tion to deny

a motion to amend on g rounds of futility wher e the pr oposed plea ding w ould not survive a motion to dismiss .” Nat’l W

restling Coaches Ass’n v. De p’t of Educ. , 366 F.3d 930, 945 ( D.C. Cir. 2004), cert. de nied , 545 U.S. 1104 (2005). Reviewfor f utilit y is practica lly

“identica l to review of

a Rule 12(b)(6) dismiss al base d on the alleg ations in the amende d complaint.” In re I nterbank Funding Corp. Secs. Litig. , 629 F.3d 213, 215- 16 (D.C. Cir. 2010) (quotation mar ks omitt ed). Be cause leave to amend should be libera lly g rante d, the par

ty opposing a

mendment bea

rs the burden of coming forwa

rd with a c olorable ba sis for deny ing le ave to amend. Abdullah v. W ashington , 530 F. Supp. 2d 112, 115 (D.D .C. 2008). III. DISCUSS ION A. Plaint

iffs’ First Motion to Am end Plaintiffs’ First Motion to Amend is limi ted in scope. Plaintiffs re quest leave to amend the Complaint to (a) cla

rify that ref ere nces to the “ Council on America n-I slamic Relations” in the Complaint are to CAI R-AN, (b) add CAI R-F a s a sec ond plaintiff, (c ) include a claim for unjust

10enric hment, and (d) introduce a handful of supple mental fa ctual alleg ations in support of claims alre ady asser ted. See Comparison of Compl. and Proposed First Am. Compl., ECF No. [50]
. Be cause leave to amend is to be “f ree ly g iven,” a nd beca use the g rounds stated for the Gauba

tz Def endants’ opposition are insufficient to wa rra nt denying the relief

soug ht, the Court shall gr ant Plaintiffs’ First Motion to Amend.

1. Scope Be cause g rantingleave to amend is espec ially favor ed whe re the proposed c hang es do not radic ally resha pe the a ction, see Sm ith v. Cafe Asia , 598 F. Supp. 2d 45, 58 (D.D .C. 2009), the Court will begin by

addre ssing e ach of

the four pr oposed cha

ng es and howthey

relate to this
case . As shown below, the sc ope of Plaintiffs’ F irst Motion t o Amend is limit ed. First, Plaintiffs propose to make a tec hnical cor rec tion to clarify

that ref ere nces to the “Council on Americ an-I slamic Relations” in the ca ption and body

of the orig inal Complaint are intended to re fer

to CAI R-AN, or the Council on America n-I slamic Relations Action Networ k, I nc. De spite the seeming ly trivial nature of

the proposed c hang e, the Ga ubatz Defe ndants spill a

1 fair a mount of ink arguing a g ainst it. See Def s.’ MTD Mem. at 2-5, 25-26; Def s.’ MTA Opp’n at 12-15. The ir argument is difficult to follow, mostl y beca use it seems to shift from one moment to the next , but its basic structure is this: (i) this action was brought in the name of the “Council on Americ an-I slamic Relations”; (ii) the “ Council on America n-I slamic Relations” does not exist ; (iii) something that doe s not ex ist cannot be a “re al par ty in interest”; (iv) there fore , this action is not brought in the name of the r eal pa rty in interest. The a rgument is a strang e one be cause the Gaubatz Defenda nts conce de that the “ Council on Americ an-I slamic Relations” cha ng ed its name to CAI R-AN in J une 2007 and the y introduce
11documentar y evidenc e showingas much. SeeDef s.’ MTD Mem. at 2; Decl. of D aniel Hor owitz, ECF No. [34-2], Ex . 7 (Article s of Amendment) & E x . 8 (Certificate of Ame ndment). Entirely consistent with this showing, Plaintiffs maintain that the ref ere nces to the “ Council on AmericanI slamic Relations” in the orig inal Complaint were the pr oduct of a simple mist ake. See Pls.’

1 1 MTA Mem. at 3-4; Pls.’ MTA Reply at 6-7. The y

submit a sworn dec laration by their counse l, who explains that at the time the orig inal Complaint was prepa red, c ounsel was “ unawa

re that the org anization had chang ed its formal leg al name to ‘ Council on America n-I slamic Relations Action Networ

k, I nc.’ in 2007.” Dec l. of Tillman Finley , ECF No. [45-1], ¶¶ 2-4. The Court
acc epts that “[t] his mist ake w as made unknowing ly and unintentionally

and wa s not intended to confuse or mislead De fenda nts, the Court, or anyone else .” Id. ¶ 6. Given this state of a ffa irs, the Court sees no g ood rea son to deny Plaintiffs leave to c larify that ref ere nces to the “ Council on Americ an-I slamic Relations” ar e intended to be ref ere nces to CAI R-AN. 3

Whil e the pa

rties disag ree as to the appr opriate pr ocedur al lens for approa chingthe 3 issue, their disag ree ment is of no moment. Consis tent with their view that the pr oposed amendment would e ffe ct nothing mor e than a technica l corre ction to the Complaint, P laintiffs claim that they

need only

comply with Rule 15. SeeFe d. R. Civ. P . 15(a) . The Ga ubatz Def endants c onstrue the pr oposed ame ndment as akin to substituti ng in the rea l party in interest and ther efor e ar g ue that Plaintiffs must meet the re quirements of Rule 17. SeeFe d. R. Civ. P
. 17(a) . Yet anothe r alter

native may

be Rule 21, which a

uthorizes a district court to add or dr op a party on motion or on its own. See Fe d. R. Civ. P . 21. Whil e the Court agree s with Pl aintiffs that Rule 15 is the closest fit, g rantingPlaintiffs leave w ould be appr opriate unde r all three Rules. See W illoughby , 100 F.3d at 1003 (“[L ]eave to ame nd [under Rule 15] s hould be fre ely g iven unless there is a g ood rea son . . . to the contrar y .”); Lans v. Gateway 2000, Inc

. , 84 F. Supp. 2d 112, 120 (D.D.C. 1999) ( “[I ]tis appropriate to liberally g rant lea ve to substitute a rea l party in interest whe n there has bee n an honest mistake in choosingthe nominal plaintiff.”) , aff’d , 252 F.3d 1320 ( Fe d. Cir. 2001); W iggins v. District Cabl evision, Inc

. , 853 F. Supp. 484, 499 n.29 (D.D.C. 1994) ( “[I ]tis well established that af ter a responsive ple adinghas bee n serve d, the standards f

or addingparties a

re the same whe ther the motion is made under Rule 15 or Rule 21.”) ( quotation marks omitted).
12Second, Plaintiffs seek le ave to a dd CAI R-F a s a sec ond plaintiff. Rule 21 allows a

district court to add a

party “at a ny time” and “ on just terms.” Fe d. R. Civ. P . 21. Rule 20, in turn, define s the contours of pe rmissive joinder, providing that parties may be joined as pla intiffs when ( i) their cla ims “aris[e] out of the same transac tion, occurr ence , or ser ies of tra nsactions or
occur renc es” a nd (ii) “a ny question of law or

fac t common to all plaintiffs will arise in the action.” F ed. R. Civ. P. 20. W hen aske d to decide whether permissive joinder is appr opriate, the district court should be guided by the under ly ing a ims of joinder, which include promoting judicial economy , expediting the re solution of disput es, and e liminating unnec essar y litigation. Swan v. Ray , 293 F.3d 1252, 1253 ( 11th Cir. 2002). Be cause the g ener al pre fer ence is “toward enter taining the broade st possibl e scope of ac tion [ that is] consistent with fairne ss to the parties,” United Mine W

orkers of Am. v . Gibbs , 383 U.S. 715, 724 (1966), the joinder of plaintiffs is ordinarily allowed at the elec tion of the plaintiffs so long as both prong s of the test under Rule 20
are met, Ace vedo v . Allsup’s Convenienc e Stores, Inc

. , 600 F.3d 516, 521 ( 5th Cir. 2010). Attempts to joi n a par

ty who satisfies the test for

permissive joinder should g ener ally not be denied in the a

bsence of undue pr ejudice, e x pense, or delay
. Chavez v. I

llinois State Police , 251 F.3d 612, 632 ( 7th Cir. 2001). Applying the se principles to this case is an ea sy matter. CAI R-AN and CAI R-F sha re phy sical off

ice spa ce in the D istrict of Columbia, and it is at those offices that the events underlying this ac tion were alleg ed to have transpire d. See2d Am. Compl. ¶¶ 10-11. Althoug h Chris Gaubatz’s internship is alleg ed to have formally been w ith CAI R-AN, both CAI R-AN and CAI R-F c laim an intere st in the documents and mater ials alleg edly taken f rom their shar ed off

ice space and employ ees of

both org anizations are a lleg ed to have been the subjects of surr eptitious

13rec ording s made by Chris Gaubatz. See id. ¶¶ 29, 38, 40, 42. Unsur prisingly , CAI R-AN and CAI R-F intend to pursue virtually identical leg al claims in conne ction with these alleg ed eve nts. See id. ¶¶ 69- 131. Wit hout a doubt, their cla ims arise out of the same serie s of transa ctions or
occur renc es and, a s evidenc ed by the pag es that follow, common questions of law and fa ct will arise in this ac tion. Third, Plaintiffs seek to add a claim for unjust enr ichment base d on the same se t of fac ts underlying the ir other c laims. The Gauba tz Defenda

nts do not specifica lly

respond to this aspec t of Plaintiffs’ F irst Motion t o Amend. While they do offe r a br oader

argument that g rantingleave to amend would be f

utile beca use the F irst Amendment bar s Plainti ffs’ c laims or protec ts their

1 conduct, see Def

s.’ MTA Opp’n at 2-8, an a rgument which pre sumably encompa sses Plaintiffs’ unjust enrichment cla im, the Court rejec ts that argument. See infra Part I I I .C.1. Meanwhile, beca use Plaintiffs’ unjust enrichme nt claim does “no more than state a n alternative theory

of
rec overy ,” Foman , 371 U.S. at 182, g rantingleave to amend to add this claim is appropr iate. Four th, Plainti ffs see k to add a ha ndful of alleg ations to the Complaint t hat ar e desig ned to flesh out the fa ctual basis for the claims they

have a lrea dy

asser ted. For the most part, these fac ts pertain to the natur e of the documents and ma terials at issue in this action, the non-public nature of Plaintiffs’ off

ices, the ba sis for Chris Gaubatz’s allege d fiduciar y duties, and the injuries alleg edly

flowing from the Ga

ubatz Defe ndants’ conduc t. SeeComparison of Compl. and Proposed F irst Am. Compl ., ECF No. [50]. R esponding to these propose d chang es, the Gaubatz Defenda

nts claim that “the ne w complaint is the old complaint” and suf fer s from the

1 same de fec ts as the orig inal Complaint. SeeDef s.’ MTA Opp’n at 2-8. Consistent with t his view, the Ga

ubatz Defe ndants have taken the position that their leg al ar guments apply equally to
14the orig inal Complaint and the proposed F irst Amended Complaint. See id. ; J oint St atus Report,

ECF No. [52], at 9. W hile the Court is inclined to ag ree that the addition of these f actua l alleg ations is not li kely

to chang e the outcome of the leg al issues prese nted, this certa inly does not provide a ba sis for deny ing le ave to amend. Plaintiffs’ fa ctual alleg ations merely fine-tune the basis for the relief

Plaintiffs seek in this action. Fa ctual alleg ations of this kind, which clarif y but do not reshape the ac tion, are r are ly a bad thing
. 2. F utility The c rux of the Gaubatz Def endants’ opposition to Plainti ffs’ F irst Motion t o Amend is the contention that the pr oposed ame ndments fail to improve upon the orig inal Complaint. See

1 Def s.’ MTA Opp’n at 2. Arguing that “the new complaint is the old complaint,” the Ga ubatz Def endants re hash and inc orporate the ar g uments raised in their Motion to Dismiss. See id. at 2- 8. The implication is that gr anting leave to amend would be f utile (thoug h the Gaubatz Def endants ne ver a ctually

use that word outside of

stating the standard of

revie w). The argument divides into three sub-pa

rts. First, the Ga

ubatz Defe ndants argue that lea ve to amend should be denied be cause the First Amendme nt either prote cts their conduc t or prec ludes Plaintiffs from sec uring any relief
.

1 See Def s.’ MTA Opp’n at 2-8, 10-12. The Court addre sses this argument below in re solving the Gaubatz Defenda

nts’ Motion to Dism iss, in which the argument was fir st raised. See infra Part I I I .C.1. For pr esent purpose s, suffice it to say that the Court reje cts the ar g ument, and as a result it cannot constitute g rounds for de nying Plaintiffs lea ve to amend. Second, the Ga

ubatz Defe ndants argue that lea ve to amend should be denied be cause this action bec ame moot when the materia ls at issue were returne d to Plainti ffs followingthe entry of
151

the Court’s pre liminary

injunction order. See Def s.’ MTA Opp’n at 8-9. This argument rests on a number of fa ulty premises. Most importantly , the ar g ument presuppose s that this C ourt would separ ately conclude both that Plainti ffs have fa iled to state a c laim for re lief under the ECPA and that their common law c laims are a ll barre d by the Fir st Amendment. Be cause the Court rea ches the contra ry conclusion on both ac counts, see infra Parts I I I .B.2, I I I .C.1, and I I I .C.2, the Gaubatz Def endants’ mootness a

rgument is mispl ace d. As the succ eedingpag es make clea r, there
rema ins a live ca se or c ontroversy for this Court to decide. Third, the Ga

ubatz Defe ndants argue that g rantingPlaintiffs leave to c larify that CAI R1 AN is the entity

ref ere nced in the or igina l Compl aint “may aff ect diver sity .” De fs.’ MTA Opp’n at 12. This argument simil arly presuppose s that the Court would conclude that Plaintiffs have failed to state a

claim for r elief unde r the ECPA, which ser ves as the ba sis for the Court’s fe dera l question jurisdiction, and that Plainti ffs would be unable to invoke the Court’ s diversity jurisdiction because there is an absenc e of c omplete diversity betwee n the par

ties. Howeve r, the Court concludes that Plainti ffs’ E CPA claims survive the Gauba tz Defenda

nts’ Motion to Dismiss. See infra Parts I I I .B.2 a nd I I I .C.2. As a re sult, thi s Court has orig inal jurisdiction over Plaintiffs’ claims under the ECPA and supplemental jurisdiction over Plaintiffs’ c laims under District of Columbia law bec ause the y form par t of the same c ase a

nd controve rsy . See 28 U.S.C. §§ 1331, 1367. Bec ause this Court’s jurisdiction does not rest on the diver sity of citizenship between the pa rties, the Ga

ubatz Defe ndants’ ar g ument is reduce d to a non sequitor
. 3. Undu e P rej udi ce orBad Faith L eave to amend may

be denie d for a

g ood rea son, such as undue prejudice or bad f aith. See W illoughby , 100 F.3d at 1003. The Court ca n g lean two ba sic claims of pre judice or ba d
16faith fr om the Gaubatz Defenda nts’ disjoint ed opposition. First, the Ga

ubatz Defe ndants point to the leng th of this lit iga tion as a basis for

denying Plaintiffs leave to amend. Plaintiffs filed their F irst Motion t o Amend on Mar ch 10, 2010, at which point this action had bee n pendingfor a shade ove r four

months. True, the Ga

ubatz Def endants’ Motion to Dismiss had been f ully briefe d when Plaintiffs’ F irst Motion t o Amend was filed, but the Court ha d y et to issue a fina l ruling on that motion and discovery perta ining to the merits had not begun. I n fac t, beca use this action has be en dela y ed by sever al proc eeding s collater al to the merits, discover y is stil l y et to beg in in earne st. Under these circ umstances, Plaintiffs sought leave to amend in a sufficie ntly

timely manner . More to the point, the leng th of a litiga tion cannot on its own justify denying le ave to amend; any

delay must be acc ompanied by a showingof bad f

aith or pre judice. See Caribbean Broad. Sys., Ltd. v. Cable & W ireless P.L.C. , 148 F.3d 1080, 1084 ( D.C. Cir. 1998). Whil e the Gaubatz Defenda

nts paint Pl aintiffs’ F irst Motion t o Amend as a “dilatory tactic” and complain

1 that respondingwill require the m to ex pend additional “time a nd expense,” De fs.’ MTA Opp’n at 1-2, these contentions are either e ntirely conclusory

or re late to the ordina

ry costs and inconvenienc es incidenta l to defendingag ainst any lawsuit. They

fall short of the “ g ood rea son” require d to deny

leave to amend. W

illoughby , 100 F.3d at 1003. Second, the Ga

ubatz Defe ndants contend that the mere pendenc y of this action will have

1 a “c hilling ef

fec t” on the exerc ise of their F irst Amendment rig hts. SeeDef s.’ MTA Opp’n at 11-12. The a

rgument, which the Ga

ubatz Defe ndants support only with citations to the most basic princ iples of Fir st Amendment jurisprudenc e, ag ain assumes that the F irst Amendment either pr otects their c onduct or pre cludes Plaintiffs from se curingany relief in this action. As set
17forth else wher e, the Court finds this assumption to be mispl ace d. See infra Part I I I .C.1. Viewed

from a slig htly

differ ent per spective, the alleg ed “pr ejudice” that the Gauba tz Defenda

nts identify has nothing to do with the effe ct of a ny proposed amendment, but is attributable to the ac tion itself. The a

rgument beg s the question at the hea rt of this liti g ation—namely , whether Plaintiffs can pr evail on the mer its of their claims—and that que stion cannot be a nswere d at this stage of the proc eeding s. Be cause the Court conclude s that the Gaubatz Defenda nts’ Motion to Dism iss must be denied in larg e par t, see infra Part I I I .C, the parties will nee d to conduct discove ry , and this action will remain pending , reg ardle ss of whethe r Plaintiffs’ F irst Motion t o Amend is g rante d. The limited scope of

Plaintiffs’ First Motion to Amend supports the conc lusion that g rantingPlaintiffs leave to amend will not cause the Gaubatz Defenda nts any undue pre

judice. Plaintiffs’ proposed c hang es for the most part ef

fec t technica l corre ctions and fine- tune the leg al and fa ctual basis for

the re lief they

seek in this action. I f any thing, these amendments should benef it the Gaubatz Def

endants by

providing them with gr eate r notice of what Plaintiffs’ cla ims
are and the g rounds upon which they rest. The only meaning ful expansion of this action that would flow from g rantingPlaintiffs’ First Motion to Amend perta ins to CAI R-F, but the Ga ubatz Defe ndants offe r no g ood rea son for denying CAI R-F lea

ve to join this action. Their opposition is si lent on the matter, e ither conflating CAI R-AN and CAI R-F or mentioning CAI R-F only in passing in the c ontext of their misplaced a

rgument that there is an absenc e of c omplete diversity betwee n the par

ties. See

1 Def s.’ MTA Opp’n at 4-8, 12-14. B ut allowing CAI R-F to par ticipate in this action in lieu of requiringit to bring a

separ ate a ction will benefit the Ga ubatz Defe ndants by

minimi zing the
18possibili ty of inconsistent dec isions and sparingthem the vexation and expense of re dundant litigation. I n the end, the G aubatz Def endants have fa iled to point to any undue pre

judice that would result from g rantingPlaintiffs leave to amend. Indeed, the ir claims of pre judice ring

particula rly hollow give n that they

argue that “the new c omplaint is t he old complaint” a nd maintain that the leg al ar g uments raised in their Motion to Dismiss apply equally to the First Amende d Complaint.

1 See Def s.’ MTA Opp’n at 2-8; J oint St atus Report, ECF N o. [52] , at 9. In other wor ds, the Gaubatz Defenda

nts conce de that Plaintiffs’ propose d amendments do not catch them by surprise
or ra dically

resha pe this action, let alone deprive them of an oppor tunity to mount a fair de fense
. See City of Moundridge v . Exx on Mobil Corp. , 250 F.R.D. 1, 6 (D .D.C. 2008) (“ Undue pr ejudice is not mere har

m to the non-movant but a denia l of the opportunity to present f

acts or e vidence which would have been of fer ed had the amendment be en timely .”) (quotation marks a nd notations omit ted). More broadly , the Gaubatz Defenda nts have fa iled to discharg e their bur den of comingforwa

rd with a c olorable ba sis for deny ing le ave to amend. See Abdullah , 530 F. Supp. 2d at 115. There fore , the Court will gr ant Plaintiffs’ Fir st Motion t o Amend. B. Plaint

iffs’ Sec ond Moti on to A m end I n their Second Motion to Amend, Plaintiffs reque st leave to a mend the Complaint to (a) add the CSP Defenda

nts as defe ndants, (b) a dd a cla im under Title I of the ECPA and its counter part unde r District of Columbia law, a nd (c) add a c laim for tortious interfe renc e with contra ct. See Comparison of Compl. and Proposed Second Am. Compl., ECF No. [51] . Be cause leave to amend is to be “f ree ly g iven,” a nd beca use the g rounds stated for the Gaubatz Def endants’ opposition are insufficient to wa rra nt denying the relief

soug ht, the Court shall gr ant
19Plaintiffs’ Second Motion to Amend. 1. Scope The Court beg ins by

addre ssing the thr ee pr oposed cha ng es and howthey

relate to this
case . The bottom line is that, while Plainti ffs’ Sec ond Motion to Amend is more expansive than their F irst Motion t o Amend, the pr oposed cha ng es still would not radically resha pe this action. First, Plaintiffs propose to a dd the CSP Def endants a s defe ndants in this action. The orig inal Complaint named as def endants ten John and J ane D oes whose ide ntities were the n unknown but who wer e alleg ed to have participa ted in and bene fitted from the G aubatz Def endants’ a lleg ed misconduct. SeeCompl. ¶¶ 12-14. Followingresolution of CAI R-AN’s motion for a pre liminary

injunction, the Court gr anted CAI R-AN leave to depose CSP based on CAI R-AN’s r epre sentation that CSP was be lieved to be in possession of mate rials obtained f rom Plaintiffs’ office s, and there fore might be one of the de fenda nts whose identities were unknown. See Orde r (De c. 10, 2009), ECF No. [30] , at 4. On Jul y 12, 2010, CAI R-AN depose d Christine Br im as CSP ’s desig nated a g ent under Rule 30(b)(6) of the F eder al Rules of Civil P roce dure. See Tr. of D ep. of Christine B rim, ECF No. [48-3]. Based in pa rt on CSP ’s testimony

during that deposition, Pl aintiffs now see k to add the CSP Defenda nts as defe ndants in this action. SeePl.’s

2 MTA Mem. at 2. 4 Rule 21 allows a district cour t to add a par

ty “at a ny time” and “ on just terms.” Fe d. R. Civ. P . 21. Rule 20, in turn, defines the c ontours of per missive joinder, providing tha t parties may be joined as de fenda

nts in a single a ction if (i) “ any rig ht to relief is asse rted a g ainst them

Be cause the document is not pag inated, the Court will ref er to the pa g e number s 4 g ener ated by

the Court’s CM/ECF Sy stem. 20jointly , sever ally , or in the alter native with re spect to or a rising out of

the same tra

nsaction,
occur renc e, or se ries of tra

nsactions or oc curr ence s” and ( ii) “any question of law or

fac t common to all defe ndants will arise in the a ction.” F ed. R. Civ. P. 20(a)(2). I n this case, the CSP Def endants a re a lleg ed to be pa

rticipants in the same sc heme to infiltrate Plaintiffs’ of fice s with the aim of obtaining Plaintiffs’ internal doc uments and re cordingconver sations involving Plaintiffs’ employ ees a

nd, like the Gaubatz Defenda nts, the CSP Def

endants a re a lleg ed to have publicly disclosed and published mate rials obtained f rom Plaintiffs’ offic es. See2d Am. Compl. ¶¶ 2- 5, 47. Moreove r, Plaintiffs intend to assert the sa me set of leg al claims ag ainst both sets of defe ndants. See id. ¶¶ 69- 131. In sum, Pl aintiffs cla im that the CS P Defe ndants are liable on essentially

the same le g al theorie s and the same set of fa cts. As a r esult, g rantingPlaintiffs leave to name the CSP Defenda nts as defe ndants in this action will promote judicial economy , expedite the re solution of Pl aintiffs’ c laims, and eliminate unnec essar y litigation. In short, it aligns with the g ener al pre fer ence “towar d enter taining the broade st possibl e scope of ac tion [ that is] consistent with fairne ss to the parties.” United Mine W orkers of Am. , 383 U.S. at 724. Second, Plaintiffs propose to a dd a cla im under Title I of the ECPA, commonly ref err ed to as to the Wiretap Act, 18 U.S.C. §§ 2510-2522, and its counte rpar t under District of Columbia law, D.C. Code §§ 23-541- 23-556. The c laim is based on alleg ations that Chris Gaubatz, with the assistance of Paul David Ga ubatz and the CSP Def

endants, used a

conce aled e lectronic device to make unauthor ized recor dings of conver sations involving Plaintiffs’ employ ees a nd that Def endants late r used a

nd disclosed the conte nts of those conve rsations. See2d Am. Compl. ¶¶ 70- 78. These sa

me fa ctual alleg ations were raised in the or igina l Compl aint, but Plainti ffs at that time only

asser ted common law c laims in connection with those alleg ations. SeeCompl. ¶¶
213, 32. I n other wor ds, Plainti ffs now se ek leave to “state an alter native theor

y of re cover

y .” Foman , 371 U.S. at 182. Under these c ircumstance s, g rantingleave to amend is appropr iate. Third, Plaintiffs propose to add a common law cla im for tortious interfer ence with contra ct. The c laim is based on alleg ations that Paul David Gaubatz and the CS P Defe ndants

5 interfe red w ith Pl aintiffs’ c ontrac tual relationship wit h Chris Gaubatz by inducing and assisting Chris Gaubatz in breac hing the Confidentiality Ag ree ment by

phy sically

removingmateria ls from Plaintiffs’ off

ices a nd making surre ptitious rec ording s of Plaintiffs’ employ ees. See2d Am. Compl. ¶¶ 111-116. In other wor ds, the claim is based on e ssentially the same nuc leus of fa cts supporting Plaintiffs’ othe r cla ims. W hile addingthe claim to this action will likely require the parties to conduc t discovery as to Paul David Ga

ubatz and the CSP Def

endants’ a

war eness of Chris Gaubatz’s alleg ed contr actua l relationship with Plainti ffs, that is a minor matter . The addition of the cla im to thi s case will not radically expand the scope of

the litigation. Unde r these c ircumstance s, g rantingleave to amend is appropr iate.

2. F utility The Ga ubatz Defe ndants’ opposition to P laintiffs’ Second Motion to Amend is brief , consisting of

less than two pag es. Onc e ag ain, the cr ux of their opposition is that the proposed amendments fa il to im prove upon the orig inal Complaint, arguing that the “[t] he law is a s clea r

2 now as it was . . . whe n [t heir] motion t o dismiss was filed.” SeeDef s.’ MTA Opp’n at 2. The Court addre sses the Ga

ubatz Defe ndants’ Motion to Dismis s below. See infra Part I I I .C. For prese nt purposes, suffic e it to say that the Court will deny

the Gaubatz Defenda

nts’ Motion to Dismiss i n almost its entirety . The only component of the Motion to Dism iss that will be gr anted
Neither party addre sses this claim in briefing Plaintiffs’ Second Motion to Amend. 5 22has no bea ring upon the proposed c hang es re levant to Plaintiffs’ Second Motion to Amend. As a result, the Ga

ubatz Defe ndants’ ar g uments for dismissal do not constitut e g rounds for de nying Plaintiffs leave to amend. The Ga ubatz Defe ndants also sug g est that Plaintiffs’ proposed c laim under Title I of the ECPA, commonly

ref err ed to as to the Wiretap Ac t, 18 U.S.C. §§ 2510-2522, and its counterpar t under D istrict of Columbia law, D.C. Code §§ 23-541-23- 556, would not survive a motion to

2 dismiss
. See Def

s.’ MTA Opp’n at 2. Among othe r thing s, these statutes make it a criminal offe nse for

any person to intentionally

(a) interce pt or attempt to interce pt wire, ora l, or elec tronic communications or (b) procur e any other pe rson to interce pt or attempt to interce pt wire, ora l, or elec tronic communications. See 18 U.S.C. § 2511(1); D.C. Code § 23-542(a ). B oth statutes
cre ate a private r ight of

action for

any person whose communications have been unla wfully interce pted, used, or disc losed. See18 U.S.C. § 2520; D.C. C ode § 23-554. In this case, Plaintiffs claim that Defe ndants violated the Wiretap Ac t and its District of Columbi a ana log when Chris Ga

ubatz, with the assistance of Paul Da vid Gaubatz and the CSP Defenda nts, used a
conce aled e lectronic device to make unauthor ized recor dings of conver sations involving Plaintiffs’ employ ees a

nd when De fenda

nts later used a

nd disclosed the conte nts of those
conver sations. See2d Am. Compl. ¶¶ 70-78 The Ga ubatz Defe ndants argue, in a sing le sentenc e without citation to any leg al authority , that this claim would not survive a motion to dism iss because the ECPA “applies only 6
The Ga ubatz Defe ndants do not even me ntion the District of Columbia’s analogto the 6 Wiretap Act in their opposition. Whi le the Wiretap Ac t and its counterpa rt under D istrict of Columbi a law ha

ve bee n descr ibed as “ virtually identical,” Napper v. United States , __ A.3d __, 2011 WL 2226858, at *6 (D.C. June 9, 2011), there are text ual diffe renc es betwe en the two. Whil e those diff

ere nces ma

y or may not turn out to be important in this case , they are not 232

to server s and not to computers at an end use r’s location.” Def s.’ MTA Opp’n at 2. I n making this arg ument, the Gaubatz Defenda nts clear ly

confuse Plaintiffs’ claim under the Wiretap Ac t (Count One of the Second Amende d Complaint) with P laintiffs’ cla im under the Stored Communi cations Ac t (the “SCA”) , 18 U.S.C. §§ 2701-2712 (Count Two of the Second A mended Complaint). Both statutes fall under the umbrella of

the ECPA (the Wiretap Ac t is Titl e I of the ECPA and the SCA is Tit le I I ), but they are not conce rned w ith the same conduc t. Stated briefly , the Wiretap Ac t is concer ned with the conte mporane ous interce ption of communications and the SCA is concerne d with the unauthorized ac cessingof stored c ommunications. See18 U.S.C. §§ 2511, 2701. Consist ent with this dist inction, Plainti ffs’ Wireta p Act cla im turns on the alleg ation that Chris Gaubatz unlawfully rec orded live c onversations, while Pl aintiffs’ SCA claim turns on the alleg ation that Chris Gaubatz unlawfully obtained docume nts from Plaintiffs’ computer sy stems. See 2d Am. Compl. ¶¶ 70-85. The G aubatz Def endants’ a

rgument that the ECPA

2 “applies only

to server s,” De fs.’ MTA Opp’n at 2, may have some rele vance to Plainti ffs’ SCA claim, see infra Part I I I .C.2, but it has no bea ring on the viability

of Plaintiffs’ Wiretap Ac t claim. Ther efor e, the Ga

ubatz Defe ndants have failed to show that amendment would be f utile. 3. Undu e P rej udi ce orBad Faith The Ga ubatz Defe ndants have also failed to show that Plainti ffs’ Sec ond Motion to Amend is made in ba d faith or that g rantingleave to amend would ca use them any

undue prejudice . The Ga

ubatz Defe ndants’ cur sory opposition does not use the word “pr ejudice,” but it includes this para g raph:

L eave to amend should be d enied. The new complaint’s statutory
materia l to this motion. 24cause of action and the new insufficient leg al theory could have been fi led near ly two y ear s ag o as part of the orig inal complaint. T h e third-par ty deposition was taken ma ny months ag o.

2 Def s.’ MTA Opp’n at 2. To the extent the Gaubatz Defe ndants intend to sugg est that the timing of Plaintiffs’ Second Motion to Amend alone justifies denying le ave to amend, they are mistaken. Delay alone c annot serve as g rounds for de nying le ave to amend; any delay must be acc ompanied by a showingof bad f

aith or pre judice. See Caribbean Broad. Sys., Ltd. , 148 F.3d at 1084. Here , the Gauba

tz Defenda

nts have fa iled to alleg e, let alone establish, any bad fa ith or prejudice
. I n any event, while Plaintiffs c ould have a cted soone r, Plaintiffs moved to amend in a sufficie ntly

prompt manner. Plaintiffs filed the ir Second Motion to Amend on April 12, 2011, at which point the Court had y et to issue a fina l ruling on the Gaubatz Defenda nts’ Motion to Dismiss and discovery

perta ining to the mer its of this action had not begun. To date, me ritsbased discove ry

still has not begun. I n the end, the G aubatz Def endants have fa iled to discharg e their bur den of c oming forwa rd with a c olorable ba sis for deny ing le ave to amend. See Abdullah , 530 F. Supp. 2d at 115. For the re asons set for

th above, the Court c oncludes that g rantingleave to amend is appropr iate in this case. H oweve r, in order to fac ilitate the prompt resolution of this lit iga tion, the Court shall require Plaintiffs to effe ct servic e of the Summons and the Sec ond Amended Complaint upon t he CSP Defenda nts, and to file proof of

service with the Court, on or befor e J uly 25, 2011. SeeFe d. R. Civ. P . 21 (providingthat a district cour t may impose “just terms” on the addition of any

party ). I f Plaintiffs fail to eff

ect se rvice of proc ess by

the designated date, the Court will dis miss thi s action without prejudice ag ainst the CSP Def endants. No e x tensions will be g rante d absent c ompelling c ircumstance s.
25C. The Gaubatz Defe ndant s’ Motion t

o Dism iss The Ga ubatz Defe ndants’ Motion to Dismis s predates Plaintiffs’ reque sts for leave to amend the Complaint. Nonethe less, the Gaubatz Defenda nts have c onsistently

maintained that their leg al ar guments apply with equal for ce to Plaintiffs’ Sec ond Amended Complaint. See

2 Def s.’ MTA Opp’n at 2; J oint St atus Report, ECF N o. [52] , at 9. In fac t, when the Ga ubatz Def endants we re dire cted to show c ause why their Motion to Dismi ss should not be denied without prejudice w ith leave to re -file a fter ta iloring the ir arg uments to speak to the alleg ations and cla ims raised in Plaintiffs’ amende d pleading s, the Gaubatz Defenda nts electe d to rest on their ar g uments as pre viously articulated. SeeMin. Order (Apr. 13, 2011) ; J oint St atus Report, ECF No. [52], at 9. Theref ore, in a ddressingthe Gaubatz Defenda nts’ arguments for dismissal, the Court will refe renc e the a lleg ations and cla ims in t he Second A mended Complaint which, by virtue of the Court’ s decision above , is now the operative version of the Complaint. For the
rea sons set forth below, the Court will gra nt in part and de ny

in part the Ga

ubatz Defe ndants’ Motion to Dism iss.

1. The Gaubatz De fend ants’ F irst Am endm ent De fense The F irst Amendment embodies our na tional commitment to t he fr ee e x chang e of ide as, but its protections are not boundless. Ashcroft v. Am. Civil Liberties Union , 535 U.S. 564, 573 (2002). The hear

t of the Ga

ubatz Defe ndants’ def

ense to this action is their conte ntion that the First Amendme nt either prote cts their conduc t or bars Plaintiffs fr om obtaining a ny relief
. See

1 2 Def s.’ MTD Mem. at 11-17; Defs.’ MTD Reply at 1-5; De fs.’ MTA Opp’n at 2-8; Defs.’ MTA Opp’n at 2-3. I t is not alway s easy to rec oncile the f

ree doms affor ded by

the Fir st Amendment with the protec tions afforde d to individuals by various statutes and the common law, but this
26much is clea r: the protec tions afforde d by the Fir st Amendment, far rea chingas they

may be, do not place the unlawful a cquisition of information beyond the re ach of judicial revie w. B eca

use that is precise ly

what is at issue in this action, the Fir st Amendment does not re quire dismissal of Plaintiffs’ claims ag ainst the Gaubatz Defenda nts at this ti me. The Ga ubatz Defe ndants rely

on the principle that if a publisher law fully obtains truthful information about a matter of public sig nificanc e, then the g overnme nt may not punish the publication of that information in the absence of a g overnme ntal interest of the highe st order. 7 Smith v. Daily Mail Publ’g , 443 U.S. 97, 103 (1979). That principle is both well-established a nd uncontrove rsial. Howe ver, it only applies whe re the publisher has “ lawfully acquir ed” the information. Cohen v. Cowles Media Co. , 501 U.S. 663, 669 (1991). In this case, Plaintiffs alleg e that the Ga

ubatz Defe ndants ac quired the materials at issue in violation of Chris Gaubatz’s contra ctual, fiduc iary , and other leg al obligations to P laintiffs. In fac t, cre diting the f actua l alleg ations in the Second Amende d Complaint, t he Ga ubatz Defe ndants’ conduc t was potentially criminal. See supra Part I I I .B.2; infra Part I I I .C.2. I f Plaintiffs’ alleg ations are to believed ( and

8

For purposes of this motion, Pl aintiffs do not dispute that the Gauba tz Defenda

nts are 7 within the class of publishers e ntitled to invoke this principle or that their speec h touched upon a matter of public sig nificanc e. The Court theref ore ha s no occa sion to address either issue. Be cause the Gauba

tz Defenda

nts’ conduct wa s potentially criminal, there is no need to 8 define the pre cise c ontours of the c oncept of “unlawf ul acquisition” at this time, though seve ral courts have intimated that conduct conside rably short of a c riminal offe nse will suffice
. See, e .g. , Cohen , 501 U.S. at 671; Boehne r v. Mc Dermott , 484 F.3d 573, 579 ( D.C. Cir.) ( en banc ), cert. denied , 552 U.S. 1072 (2007); Veilleux v . Nat’l Broad. Co. , 206 F.3d 92, 127- 28 (1st Cir. 2000); Food Lion, Inc. v. Capital Cit ies/ABC, Inc. , 194 F.3d 505, 521- 24 (4th Cir. 1999); Spear Pharm., Inc. v . W illiam Blai r & Co., LL C , 610 F. Supp. 2d 278, 288 (D. D el. 2009). Similarly , beca use Plaintiffs alleg e that both of the G aubatz Def endants we re a ctively

involved in unlawfully acquir ing Plaintiffs’ materials, the Court nee d not addre ss where the line should be dra wn betwee n unlawful a cquisition and the passive a cce ptance of stolen mater ials. See Peav y v. W FAA-TV, Inc

. , 221 F.3d 158, 193 ( 5th Cir. 2000), cert. de nied , 532 U.S. 1051 (2001). 27at this stage they must be), the Ga

ubatz Defe ndants did not gather infor mation from Plaintiffs’ office s lawfully
. I t is for this reason that the G aubatz Def endants’ r eliance upon the Supreme Court’s decision in Bartnicki v. Voppe r , 532 U.S. 514 (2001), is misplaced. That case involved the “novel a nd narr ow” que stion of what deg ree of protec tion the First Amendment pr ovides to speec h that discloses the conte nts of an illeg ally interce pted communication whe re the defe ndants “play ed no par

t in the illega l interce ption” and their “ acc ess to the information . . . wa s obtained lawfully .” Id. at 518, 525. Answe ring that narr ow question, the Bartnicki Court merely held that “a stra ng er’ s illega l conduct” doe s not preclude a F irst Amendment def ense. Id. at 535. The Court assumed, without deciding , that the g overnme nt’s interest in protec ting pr ivate communications would justify prohibiting the inter ceptor ’s own use of those communications, noting that “ [t ]he normal method of dete rringunlawful c onduct is to impose an appropr iate punishment on the person who e ng ag es in it.” Id. at 529. Bartnickionly prese rves a

First Amendment def

ense f or the “ law-a

biding possessor

of informa

tion” and “doe s not apply to punishing pa

rties for obta ining the r eleva nt information unlawfully .” Id. at 529, 532 n.19. Be cause Plaintiffs’ alleg ations take the G aubatz Def endants outside the c ateg ory of the “ lawabiding possessor of infor mation,” Bartnickiis no shield. Howeve r, that is not to say that the Fir st Amendment is irreleva nt to this case . I t may , for example, turn out that Pl aintiffs will be unable to establish that some or all of the de fenda nts in this action participate d in the unlawful a cquisition of information. But ther e is another First Amendment doctr ine more r eleva nt to the present motion—namely , the principle that the specia l protec tions that the First Amendment a ffor ds defe ndants cha rg ed with def

amation may

also
28extend to other kinds of leg al claims whe re the plaintiff see ks damag es for reputational or emotional harm a lleg edly flowing from the publication of protecte d speec h. See Snyder v

. Phelps , __ U.S. __, 131 S. C t. 1207, 1215 (2011); Barr v. Clinton , 370 F.3d 1196, 1203 ( D.C. Cir. 2004). I n those situations, reg ardle ss of how a c laim is labeled, a pla intiff will often be require d to satisfy

the more one rous showingrequire d to rec over what ar e re fer red to loosely

as “publication dama g es.” See Hustler Magazine v. F alwell , 485 U.S. 46, 56 (1988). Other wise, plaintiffs would be fr ee to r eca st claims for def amation in another

form and the reby

“chok[e] off the ‘bre athing space ’ nec essar y to safeguard ‘ the fre edoms protec ted by the Fir st Amendment.’” Barr , 370 F.3d a

t 1203 (quoting Hustler , 485 U.S. at 56). I n their Motion to Dismi ss, the Gaubatz Defenda nts argue that Plaintiffs are attempting to make a n “impermissible end run” around the First Amendme nt by asser ting what are eff

ectively defa mation claims seekingpublication damag es in the guise of var ious statutory and common law cla ims. But in response, Plaintiffs have expressly disclaimed dama g es for

reputa tional or emotional harm, see Pls.’ MTD Opp’n at 8, a nd the Court will hold them to t hat re prese ntation. Whil e that should be the e nd of the matter , the Gaubatz Defenda nts neverthe less complain that Plaintiffs “plead[] damag es in a va g ue and c onclusory manner ,” fa

ulting Plaintiffs for f

ailing to come f orwa rd with specif

ic fa ctual alleg ations showing that they suffe red da

mag es that ar e not for r eputational or e motional harm. SeeDef s.’ MTD Reply

at 1. Howe ver, Plaintiffs ar e not require d to plead with par ticularity damag es that would ty

pically be expected to f

low from their claims. See Fe d. R. Civ. P . 8(a) (3), 9( g ); Browning v. Clint on , 292 F.3d 235, 245 ( D.C. Cir. 2002). F ollowing discove ry , Plaintiffs ulti mately may or may not be able to pr ove that they suffe red da

mag es that ar e not for r eputational or e motional harm, such as a ctual pec uniary
29damag es. See Sny der v. Phe lps , 580 F.3d 206, 218 n.11 ( 3d Cir. 2009) (noting that the Fir st

Amendment “is inapplica ble . . . when the plaintiff see ks damag es for actua l pecuniar

y loss, as opposed to injury

to reputation or state of mind.”), aff’d , __ U.S. __, 131 S. C t. 1207 (2011). B ut at this early

stag e, “the char acte r of [Plainti ffs’] damag e is not definite,” making dismissal on First Amendme nt gr ounds inappropria te. Steele v . Isikoff

, 130 F. Supp. 2d 23, 29 (D.D .C. 2000). For the fore g oing r easons, the Court will deny the Gaubatz Defenda

nts’ Motion to Dismiss i nsofar

as it seeks dismissal of Plaintiffs’ claims base d upon the protec tions afforde d by the Fir st Amendment.

2. P laintif

fs’ S tore d Com m uni cations ActClaim (Count Tw o of the Second Am ended Com plain t) Congr ess ena cted Title I Iof the ECPA, or the SCA, 18 U.S.C. §§ 2701-2712, with the aim of addr essing what it perc eived a s the “g rowingproblem” of unauthorized persons deliberately

g aining acc ess to wire or elec tronic communications not i ntended to be a vailable to the public. S. Rep. No. 99-541, at 35 ( 1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3589. To that end, Cong ress c riminaliz ed the a ct of obtainingwire or elec tronic communications by
acc essing without authorization a facility throug h which an e lectronic communication servic e is provided. Sec tion 2701(a) of Title 18 of the United States Code pr ovides: [W ]hoever— (1) intentionally acc esses without authorization a fac ility throug h which an e lectronic communication servic e is provided; or (2) intentionally exceeds an authorization to acc ess that fac ility ; and there by obtains, alters, or preve nts authorized acc ess to a wire or elec tronic communication while it is in elec tronic storag e i n s u ch sy stem shall be punished as provided in subsection (b) of this section.

3018 U.S.C. § 2701(a). B y its terms, criminal liability under Sec tion 2701(a) a

rises whe re a

person (i) “intentionally

acc esses” (ii) “a

fac ility throug h which an e lectronic communication servic e is provided” (iii) “without authorization” or by “exeed[ing] an author ization” given a nd (iv) ther eby “obtains . . . a w ire or e lectronic communication” ( v) while that wire or ele ctronic communication is in “elec tronic storag e.” Id. Congr ess cr eate d a private ca use of a ction for “ any . . . person a g g rieve d” by

an intentional violation of Section 2701(a)
. Id. § 2707(a)
. Plaintiffs claim that Defe ndants violated Section 2701(a ) whe n Chris Gaubatz obtained 9

e-ma ils, computer-g ener ated spre adshee ts, and other e lectronic documents ele ctronica lly stored on their computer s and computer serve rs, networ

ks, and sy stems with user-names and pa sswords that wer e not assig ned to him. See 2d Am. Compl. ¶¶ 3, 37, 40-41, 60, 62, 80-85. The Gaubatz Def endants’ a

rguments as to why

this claim should be dismi ssed ar e disjointed and poorly articulated. What is clear is that, at least for pur poses of this motion, the Gaubatz Defe ndants do not contest that Chris Gaubatz intentionally acc essed Plaintiffs’ c omputers, that he did so without proper authorization, that he there by succe eded in obtainingacc ess to elec tronic communications, and that Plaintiffs would have standing to sue as ag g rieve d persons. The Gaubatz Defenda

nts instead limit their motion to four arguments. First, they arg ue that Section 2701(a) does not apply

beca use Chris Gaubatz di d not acc ess “a fac ility throug h which an elec tronic communication service is provide d.” Second, the y argue that Section 2701(a ) does not apply beca use the doc uments at issue wer e not in “ele ctronic stora g e” at the time that they wer e
Of the va

rious defe ndants, only

Chris Gaubatz is alleg ed to have direc tly acc essed 9 Plaintiffs’ computer sy stems; Paul David Gaubatz and the CSP Defenda nts are sue d under a theory that they conspired w ith or aided a nd abetted Chris Ga

ubatz in commit ting these acts. See 2d Am. Compl. ¶¶ 82-83. Neither Plaintiffs nor the Gaubatz Defenda nts have a ddresse d whether such a the ory

of liability

is available unde r the SCA.

31obtained. Third, they argue that Section 2701(a ) does not apply beca use the doc uments at issue
wer e not “in tra

nsit” at the time that they wer e obtained. F inally , they argue that the a

pplication of Section 2701(a ) to the fa cts of this case would rende r the statute c onstitut ionally infirm. Whil e the Ga

ubatz Defe ndants’ ar g uments may or may not bear fruit upon furthe r deve lopment of the fa ctual re cord, the y do not warr ant dismissal at this early stag e. The Court addre sses ea ch argument in turn. i. “A F acility Through Which an Electr onic Com m uni cation Service is Pr ovided” For liability to arise unde r Section 2701(a ), a de fenda nt must acce ss “a f

acility throug h which an e lectronic communication servic e is provided.” 18 U.S.C. § 2701(a). Citing to this lang uag e, the Ga

ubatz Defe ndants contend that the SCA “applies to transfe r fa cilities that forwa rd data to an end use r,” suc h as “la rg e ser vers tied to [internet servic e provide rs] or other data c arr iers,” a

nd does not extend its protections to “home or off ice c omputers.” De fs.’ MTD Mem. at 23. In short, the Gaubatz Defenda nts argue that the SCA does not apply here beca

use Plaintiffs’ office s and off ice c omputers “a

re not a communications fac ility .” Id. Whil e the argument is not entirely

without merit, it ul timately must fail beca

use it rests upon a misapprehe nsion as to the rele vant inquiry and the f actua l alleg ations relied upon by Plaintiffs in support of their c laim. Given the c omplex ity

of the SCA, the slippag e in the Ga ubatz Defe ndants’ for

mulation of the re levant inquiry

is problematic. So at the outset, it is important to define that inquiry . Under Section 2701(a) , the question is not whether CAI R’s office s are a communica tions facility , but whether Chris Gaubatz acc essed a “fa cility throug h which an e lectronic communication servic e is provided.” 18 U.S.C. § 2701(a). The rea ch of this languag e turns on the c onstruction of two 32terms—“f acility ” and “ elec tronic communication service.” Congr ess def

ined only the sec ond of these te rms. An “e lectronic communication servic e” is “any service which provide s to users there of the a bility to send or re ceive wire or elec tronic communications.” 18 U.S.C. §§ 2510(15), 2711( 1). Examples include telephone companies a nd
e-ma il service pr oviders, see S. Rep. No. 99-541, at 14 (1986) , reprinted in 1986 U.S.C.C.A.N. 3555, 3568; H. Rep. No. 99-647, at 37 (1986), but the ter m is not so narrowly

confine d. The lang uag e chose n by

Congr ess ca

ptures any

service that stands as a “ conduit” for the transmission of wire or ele ctronic c ommunications from one user to another. Quon v. Arc h W ireless Operating Co., Inc. , 529 F.3d 892, 902 ( 9th Cir. 2008), cert. de nied in relev ant part , __ U.S. __, 130 S. Ct . 1011 (2009). To the extent the Gaubatz Defe ndants intend to sugg est that liability may arise unde r Section 2701(a ) only wher e the e lectronic communication servic e is provided by a third-pa rty , such as a

commerc ial internet ser

vice pr ovider, they

are mistaken. Congr ess draf ted Section 2701(a ) broa dly , and “pr oviding a n elec tronic communication service to the public” is not part of the statutory inquiry
. Dev ine v. Kapasi , 729 F. Supp. 2d 1024, 1027 (N.D
. I ll. 2010) (emphasis omitted). Consistent with thi s rea ding, se vera l courts have conclude d that an employ er ma

y provide a n “ele ctronic c ommunication service ” to its own employ ees. See, e .g. , Shefts v. Petrak

is , 758 F. Supp. 2d 620, 635 (C.D. I ll. 2010); Bloomington-Normal Seating Co., Inc. v . Albritton , 2009 WL 1329123, at *4 (C.D. I ll. May 13, 2009); Ideal Ae rosmith, Inc. v. Acutronic USA, I

nc. , 2007 WL 4394447, at *6 (E.D. Pa. D ec. 13, 2007) ; Bohach v . City of Reno , 932 F. Supp. 1232, 1236 (D. N ev. 1996). Meanw hile, the term “ fac ility ” is not expressly define d in the SCA, but t he leg islative history and the ter

m’s usag e else wher e re veals that Cong ress intende d the term to include the
33phy sical equipment used to f acilitate e lectronic communications. The leg islative history indicates that Cong ress unde rstood that an “e lectronic communication servic e” c ould be provided throug h the same f

acilities that are used for

an “e lectronic communication sy stem,” see S. Rep. No. 99-541, at 14 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3568, which is defined a s “any wire, r adio, elec tromag netic, photooptical or photoe lectronic fac iliti es for the transmission of wire or elec tronic communications, and any computer f

acilities or re lated ele ctronic e quipment for the e lectronic storag e of suc h communications,” 18 U.S.C. § 2510(14). This re adingalso flows from the c ommon definition of the term “f acility” as “ the phy sical mea ns or equipment require d for doingsomething.” Oxford Eng lish Dictionary Online, http:// www.oe d.com/viewdictionar y entry /Entry /67465 (last visited J une 20, 2011). I n this context, the “something” that a fa cility must do is t o serve as the phy sical mea ns or equipment “throug h which an e lectronic communication servic e is provided.” 18 U.S.C. § 2701(a). Whil e that much is cle ar, the interac tion between the terms “f acility ” and “ elec tronic communication servic e” w ill not alway s prese nt an ea sy question. When the definitions of eac h term ar e incor

porate d into the operative statutory lang uag e, Section 2701(a ) re quires a de fenda nt to acc ess the phy sical mea ns or equipment “thr oug h which” a “ser vice whic h provides to users there of the a

bility to send or re ceive wire or elec tronic communications” is “provided.” 18 U.S.C. §§ 2701(a), 2510(15) , 2711(1). This for mulation is admit tedly

a little unwieldy . What does it mean in the re al world? On the one ha nd, the statute cle arly

is trigg ere d when a

defe ndant direc tly or indirec tly

acc esses the phy sical ser ver- side computer de dicated to r unning a n e-ma il client by , for instanc e, downloadinge-ma ils from the serve r. On the othe r hand, the statute clea rly is not trigg ere d when a

defe ndant mere ly

acc esses a

phy sical client-side computer a nd
34limit s his acce ss to documents stored on the c omputer’s loca l hard drive or other phy sical media.

See United States v. Steige r , 318 F.3d 1039, 1049 ( 11th Cir. 2003) (conc luding that Sec tion 2701(a) does not apply

to the act of

hacking into a persona l computer to download infor mation stored on the ha

rd drive) , cert. de nied , 538 U.S. 1051 (2003). Mapping the world be tween the se two poles may prove diff

icult, but the Court need not undertake that ende avor in this case (or at least at this ear ly stag e) be cause the Gaubatz Def endants a re ope ratingunder the err oneous assumption that Plainti ffs’ SCA cla im is confined to the alleg ation that Chris Gaubatz acc essed Plaintiffs’ of fice computers a

nd limit ed his ac cess to documents stored on the c omputers’ loca l hard drive s. SeeDef s.’ MTD Mem. at 23-25; Defs.’ MTD Reply

at 19-25. Quite the contra ry , Plaintiffs repeatedly

alleg e that Chris Gaubatz accesse d their “c omputer ser

vers, ne tworks, or sy stems” (whic h the Court will sim ply ref er to c ollectively as “c omputer ser

vers” ). 2d Am. Compl. ¶¶ 3, 40, 80-81. Plaintiffs contend that they use these 1 0 computer se rver s to provide an “ elec tronic communication service” to their employ ees. See Pls.’ MTD Opp’n at 21-22. Whil e the Ga ubatz Defe ndants are corr ect that liability under Sec tion 2701(a) would not arise if a ny unauthorized ac tivity

was limited to Pl aintiffs’ of fice computers, liability may arise if discovery

reve als that Chris Gaubatz acc essed Plaintiffs’ c omputer ser vers and that those ser

vers we re the phy sical mea ns “throug h which” a

“ser vice whic h provides to users ther eof the ability

to send or re ceive wire or elec tronic communica

tions” was “pr ovided.”
Strictly speaking , Plaintiffs alleg e that Chris Gaubatz accesse d their “ computers or 1 0 computer se rver s, networks or sy stems.” 2d Am. Compl. ¶¶ 3, 40, 80-81 (e mphasis added) . The term “c omputer” is expansive. I t could encompa ss a serve r hosting a n elec tronic communication service , but it could also refe r to a pure ly local off ice c omputer, one w ithout any network a cce ss whatsoeve r. B eca

use its usag e in the Second A mended Complaint is open to interpretation, the Court will avoid the term here
. 3528 U.S.C. §§ 2701(a), 2510(15) , 2711(1).

The Ga ubatz Defe ndants’ ar g ument may or may not turn out to have merit upon fur ther development of

the fa ctual re cord. Resolvingthat issue will require the parties to conduc t discovery as to which of Plaintiffs’ sy stems, if any , wer e ac cesse d by Chris Gaubatz and whe ther those sy stems were used to provide a n elec tronic communication service. A t this t ime and at this stag e of the proce eding s, it is s imply “pre mature a

nd speculative” to interrog ate f urther into the nature of Plaintiffs’ sy stems. Bec ker v . Toca , 2008 WL 4443050, at *4 (E.D. L a. Sept. 26, 2008). Where, a s here , a plaintiff a lleg es that it provides an e lectronic communication servic e throug h its own sy stems and that the def endant intentionally

and without authorization obtained stored communications by

acc essingthose sy stems, the plaintiff states a c laim under Sec tion 2701(a). Expe rt Janitorial, L LC v. W illiams , 2010 WL 908740, at *5 (E.D. T enn. Mar . 12, 2010). Be fore proce eding to the Gaubatz Defenda nts’ second a

rgument, the Court pauses to note that there is a red he rringto be avoided in this ca se. True , Chris Gaubatz is alleg ed to have
acc essed Plaintiffs’ loca l office computers, but that is larg ely beside the point (at least with respe ct to Plaintiffs’ SCA claim). The point is that he is alleg ed to have used those loca l office computers to ac cess Plaintiffs’ c omputer ser vers a nd it is t hose ser

vers that must be shown to have pr ovided an e lectronic communication servic e to Plaintiffs’ employ ees. Sec tion 2701(a) is ag nostic on the question of how a defe ndant g oes about “ acc ess[ing] . . . a fac ility throug h which an ele ctronic c ommunication service is provided.” 18 U.S.C. § 2701(a) . The re sult would be the
same re g ardle ss of whethe r Chris Gaubatz accesse d Plaintiffs’ computer se rver s by sitti ng down at one of Plaintiffs’ local off

ice c omputers, by

hackingin remotely

throug h a per sonal computer at home, or by

somehow plug g ing in dire ctly to the serve r itself.
36ii. “Electr onic Storage”

Section 2701(a) require s that an ele ctronic c ommunication be in “ele ctronic stora g e” at the time that it is i mproperly obtained. 18 U.S.C. § 2701(a) . The ter m “elec tronic storag e” is elsewhe re de fined to include:

• “[A]ny temporar

y , intermediate storag e of a wi re or elec tronic communication incidental to the ele ctronic tra nsmissi on there of”; a

nd

• “[A]ny storag e o f [ a wi re or elec tronic] communication by an elec tronic communication service for purposes of backup protec tion of such communication.” 18 U.S.C. §§ 2510(17), 2711(1). Courts have strug g led to define the re ach of this langua g e. Gene rally speaking , the controve rsy cente rs on a r ecur

ring fac t pattern—namely , when the intended re cipient of a

n elec tronic communication has downloaded the communication from the computer se rver

hosting the e lectronic communication servic e. See ge nerallyJ ames G. Car r & Patricia L . Be llia, The L aw of Electronic Surveillance § 8:35 (West 2011 ed.). The ma jority of courts that have addre ssed the issue have deter mined that “prior a cce ss is irreleva nt to whether the messag es at issue we re in e lectronic storag e,” c oncluding that elec tronic communications that
are stored on a se rver

hosting a n elec tronic communication service a fter the y have be en deliver ed to an end- user r emain in “e lectronic storag e” pr ovided they are reta ined for pur

poses of ba ckup protec tion. Theofel v. Farey -Jone s , 359 F.3d 1066, 1077 ( 9th Cir.), cert. de nied , 543 U.S. 813 (2004); see also Pure P ower Boot Camp v. W arrior Fitness Boot C

amp , 587 F. Supp. 2d 548, 555 (S.D.N.Y. 2008). The Ga ubatz Defe ndants argue that the e lectronic documents at issue in this case wer e not in “elec tronic storag e” be cause they wer e stored on the hard dr ives of Plaintiffs’ loca l office computers at the time they wer e obtained. SeeDef

s.’ MTD Mem. a

t 23-24. The a

rgument rests,

37in part, on a c orre ct statement of the law. I t is entirely non-controve rsial that “e -mail messag es downloaded a

nd stored on, and subse quently acc essed solely

from, a use r’s pe rsonal computer do[] not fall within the SCA’s definition of electr onic storag e.” Thompson v. Ross , 2010 WL 3896533, at *5 (W.D. Pa. Sept. 30, 2010); accord Bailey v. Bailey , 2008 WL 324156, at *6 (E.D. Mich. Fe b. 6, 2008). This is beca use (a ssuming the c omputer is not used to provide an e lectronic communication servic e) suc h communications are neither store d on a tempora ry basis “incident to [ their] electronic transmission” nor stored “ by an ele ctronic c ommunication service for purposes of ba ckup prote ction of such c ommunication.” 18 U.S.C. §§ 2510(17), 2711(1)
. Nonethele ss, the Gaubatz Defenda nts’ argument g oes nowhe re be cause it once ag ain turns upon a misappre hension as to the fa ctual alleg ations relied upon by Plaintiffs in support of their SCA claim. Plaintiffs have ne ver limited themselves to alleg ing that Chris Gaubatz directly
acc essed e lectronic documents stored e x clusively on the har d drives and othe r phy sical media of their loca l office computers. Rathe r, Plaintiffs alleg e that Chris Gaubatz i mproperly obtained
acc ess to elec tronic communications while they wer e in elec tronic storag e in the computer
serve rs used by

Plaintiffs to provide an ele ctronic c ommunication service to their employ ees. 2d Am. Compl. ¶¶ 80-81; see also Pls.’ MTD Mem. at 21-22. I f those alleg ations are proven true , liability may arise unde r Section 2701(a ). Once ag ain, the Ga

ubatz Defe ndants’ ar g ument may or may not turn out to have merit upon further

development of

the fa ctual re cord. B ut resolving that issue will require the parties to conduct discove ry

as to which doc uments, if any , wer e ac cesse d by Chris Gaubatz and how those documents we re store d and for what purpose s. At this early stag e, Plaintiffs have put forwa rd suffic ient fac tual alleg ations to state a plausible c laim for re lief. See In re I ntuit Privacy
38Liti

g. , 138 F. Supp. 2d 1272, 1277 (C.D. Cal. 2001) ( concludingthat alleg ations that the defe ndant ac cesse d data plac ed in elec tronic storag e in plaintiffs’ c omputers satisfied the liber al pleadingrequire ments of Fe d. R. Civ. P . 8(a) (2))
.

iii. “In Trans it” The Ga ubatz Defe ndants also ar gue that Section 2701(a ) does not apply in this case beca use the doc uments at issue wer e not “in tra nsit” at the time they

wer e ac cesse d. SeeDef

s.’ MTD Mem. at 24. How ever , the “in tra nsit” require ment perta ins only to claims arising under Title Iof the ECPA, commonly ref err ed to as to the Wiretap Ac t, 18 U.S.C. §§ 2510-2522, which addre sses the improper

“interc eption” of w ire, ora l, and elec tronic communications. The SCA, meanwhile, is c oncer

ned with stored c ommunications, and a plaintiff invokingits protections need not e stablish that the documents ac cesse d wer e “in tra nsit” at the time they

wer e ac cesse d. iv. The Gaubatz De fend ants’ Constitutional Argume nts The Ga ubatz Defe ndants contend that the SCA would be constitutionally infirm if applied to this case. SeeDef

s.’ MTD Reply

at 19-21. Spec ifically , they argue that apply

ing Sec tion 2701(a) here would extend the statute to situations beyond the power of Cong ress to re g ulate under its Commerce Clause power and would re nder the statute unconstitutionally vague. See id. For sever al re asons, these a

rguments do not warr ant dismissal of Plainti ffs’ SCA cla im at this time. First, the Ga

ubatz Defe ndants raise d these a rguments for the f

irst time in reply , depriving Plaintiffs of an opportunity to rende r a me aning ful response
. See Baloch v. Norton , 517 F. Supp. 2d 345, 348 (D.D.C. 2007) ( “I f the movant ra ises arguments for the f irst time in his reply

to the non-movant’s opposition, the court [may ] either ignor e those a rguments . . . or provide the nonmovant an opportunity

to respond.”) , aff’d , 550 F.3d 1191 ( D.C. Cir. 2008). Whil e the Ga ubatz
39Def

endants purpor

t to frame the ir constitutional arguments as a r esponse to Plaintiffs’ “interpr etation” of

the statute, the interpr etation re fer red to is the same one attributed to Plaintiffs by the Gauba

tz Defenda

nts in their openingmemorandum, mea ning that there w as no re ason why the Gauba

tz Defenda

nts could not have ra ised the ar g ument at the outset. Second, e ven if the Court were to consider the G aubatz Def endants’ c onstitut ional arguments, they turn upon a misapprehe nsion as to the fac tual alleg ations relied upon by Plaintiffs in support of their SCA claim. In particula

r, the Ga ubatz Defe ndants err oneously assume that Plaintiffs seek to hold Def endants liable on the alleg ation that Chris Gaubatz acc essed doc uments stored exclusively on the har d drives and loc al media of Plaintiffs’ local off

ice c omputers. Third, and most importantly , resolvingthe Gauba tz Defenda

nts’ constitutional arg uments at this early stag e would be pre mature. The doctrine of constitutional avoidance counsels that fe dera l courts should ref rain fr om deciding abstrac t and hy pothetical constitutional questions and formulatingrules of constitutional law without refe renc e to the par ticular fa cts to which they are to be applied. Clint on v. Jone

s , 520 U.S. 681, 690 n.11 (1997). B efor e the Court ca n opine on the mer its of the Gaubatz Defenda

nts’ constitutional arg uments, the parties must conduc t discovery as to what documents, if any , may

have be en ac cesse d by

Chris Gaubatz and how those doc uments were stored by Plaintiffs at the time they wer e obtained, on what sy stems, and for what purposes. I f, for instanc e, it turns out that Chris Gaubatz did not acce ss a communication “tr ansmitted in whole or in pa

rt by a . . . sy stem that aff

ects interstate or for eig n commerc e,” 18 U .S.C. §§ 2510(12), 2711( 1), the Ga ubatz Defe ndants’ constitutional arguments may have some merit. But at this stage of the proc eeding s, it is t oo ear ly to say
. For the re asons set for

th above, the Court sha ll deny the Gaubatz Defenda

nts’ Motion to
40Dismiss i nsofar as it seeks dismissal of Plaintiffs’ SCA claim. 3. P laintif

fs’ Conversion Claim (C ount Th ree in the Second Ame nded Com plain t Under District of Columbia law, conve rsion is defined a s the (i) “ unlawful e x erc ise” (ii) “of ow nership, dominion or control” ( iii) “over the persona l property of anothe r” ( iv) “in denia l
or re pudiation” of that pe rson’s rig hts. Shea v. F ridley , 123 A.2d 358, 361 (D.C. 1956). In this
case , Plaintiffs claim that Defe ndants unlawfully conver ted (a ) phy sical docume nts and (b) elec tronic docume nts, including e -mails and computer -g ener ated spre adshee ts. See2d Am. Compl. ¶¶ 38, 40-41, 87. In their Motion to Dismi ss, the Gaubatz Defenda nts contend that Plaintiffs have fa iled to state a plausible c laim of conve rsion as to both cate g ories of doc uments. See Def s.’ MTD Mem. at 17-18, 20.

i. P hysical Docum ents The Ga ubatz Defe ndants first ar gue that Plaintiffs’ conve rsion claim must fail insofar a s it seeks re cover

y for the D efe ndants’ alleg ed takingof phy sical docume nts beca use all the documents we re slate d to be shredde d. SeeDef s.’ MTD Mem. at 17-18; Defs.’ MTD Reply at 8- 9. Fr om this factual pre mise, the Gauba tz Defenda

nts argue that Plaintiffs have failed to a lleg e that Def endants de prived them of a cog nizable property

rig ht. SeeDef

s.’ MTD Mem at 17-18; Def s.’ MTD Reply

at 8-9. The Court ca

nnot acc ept the fa ctual pre mise to the argument. Plaintiffs have a lleg ed that Chris Gaubatz removed thousa nds of documents fr om Plainti ffs’ of fice s. See2d Am. Compl. ¶¶ 3, 38. Plaintiffs do not alleg e that any of these doc uments were slated to be shre dded. Without
conver ting the G aubatz Def

endants’ Motion to Dismiss to a moti on for summary judgme nt, the scope of the Court’s re view is limit ed to the alleg ations in the pleading s. SeeFe d. R. Civ. P
. 4112(d). B eca use the prof

fer ed ar g ument require s the premature c onsideration of ma terials outside the pleading s, it fails at the outset. Howeve r, eve n acc epting the fa ctual pre mise, the arg ument rests on a misappr ehension a s to the scope of

an owne r’s prope rty

rig hts under District of Columbia law. One of the many sticks in the owner’ s bundle of prope rty rig hts is the right to destroy the prope rty , Almeida v. Holder , 588 F.3d 778, 788 ( 2d Cir. 2009), and Plaintiffs’ a lleg ations that Defe ndants phy sically
remove d thousands of Plaintiffs’ docume nts are suf ficient to state a

claim that Def

endants deprive d Plaintiffs of their “r ight of destruction,” f

or lac k of a be tter desc ription. This right assumes a he ighte ned importanc e whe re, a s here , the prope rty in question is allege d to include confide ntial, proprietar

y , and privileg ed mater ials. See2d Am. Compl. ¶¶ 5, 51-52, 89. In this
case , even a ssuming that some sub-se t of the thousands of doc uments alleg edly remove d from Plaintiffs’ office s were slated to be shre dded, Plaintiffs would not nece ssarily be pre cluded f

rom
rec overingfor c onversion as to those doc uments. There fore , the Court shall deny the Gaubatz Def endants’ Motion to Dismiss ins ofar as it seeks dismissal of Plaintiffs’ claim that De fenda nts
conver ted Plaintiffs’ phy sical docume nts.

ii. Electr onic Docum ents The Ga ubatz Defe ndants next arg ue that Plaintiffs’ conve rsion claim must fail insofar a s it pertains to the “c opying of digital f iles” bec ause the mere copying of elec tronic data

does not constitute conver sion. SeeDef s.’ MTD Mem. at 20. So far as the Court can tell, the a rgument divides into two sub-parts. First, the G aubatz Def endants a rgue that ele ctronic data does not qualify as the sort of “ persona l property” prote cted by the tort of conve rsion. See id. Second, the Gaubatz Defenda

nts argue that Plaintiffs’ fa ctual alleg ations do not indicate that De fenda nts
42exercised “ owner ship, domini on, or control” over Plaintiffs’ e lectronic data. See id.

Whether the District of Columbia cour ts would acc ept the first a rgument is not clear. Whil e other

courts have conclude d that the law of conver sion in other jurisdictions may protec t elec tronic data

or informa

tion, see, e .g. , Kremen v . Cohen , 337 F.3d 1024, 1034 ( 9th Cir. 2003) (applying Ca lifornia law) ; Thyroff v. Nationw ide Mut. Ins. Co. , 8 N.Y.3d 283, 292 (N .Y. 2007) (applying N ew Yor

k law), it re mains an open que stion whether District of Columbi a law w ould protec t intangible pr operty of this kind, see Kaempe v . Mye rs , 367 F.3d 958, 963 ( D.C. Cir 2004) (obser ving that the District of Columbia courts have provided limited g uidance on the protec tions to be af forde d to intangible pr operty ); Equity Grp., Ltd. v. PaineW ebber I nc. , 48 F.3d 1285, 1286 (D.C. Cir. 1995) (

per curiam ) (same). Mea nwhile, Mary

land, to which the District of Columbi a courts ofte n look for guidance in the absenc e of othe r pre cede nt, see Athridge v. Ae tna Cas. & Sur. Co. , 351 F.3d 1166, 1171 ( D.C. Cir. 2003), does not extend the tort of conve rsion to cover intang ible proper

ty rig hts beyond those that “a re me rg ed or inc orporated into a transf era ble document,” Allied Inv. Corp. v. J asen , 731 A.2d 957, 965 (Md. 1999). Plaintiffs’ c onversion claim would be on shaky

g round (to the e x tent it relates to ele ctronic data) if the D istrict of Columbi a cour

ts were to adopt a similar appr oach. But the Court ne ed not dec ide this question because Plaintiffs have other wise fa iled to state a pla usible claim for the conver sion of elec tronic data . To rec over f or conve rsion under District of Columbia law, the plaintiff must show that the def endant e x erc ised “owne rship, dominion or control” over the plaintiff’s pr operty
. Shea , 123 A.2d at 361. This re quires the defe ndant to do something that “seriously interfe res” with the plaintiff’s rig ht to control the proper ty in question. Blanken v . Harris, Upham &Co., Inc. , 359 A.2d 281, 283 (D.C. 1976).
43Whil e ther e may be other avenue s for re dress whe n the interfe renc e is less serious, suing for
conver sion is not among them. Pearson v. D odd , 410 F.2d 701, 707 ( D.C. Cir.), cert. de nied , 395 U.S. 947 (1969). I n this case, Plaintiffs’ Sec ond Amended Complaint is devoid of fa ctual alleg ations indicating that Def

endants e x erc ised the re quisite ownership, dominion, or control over Plaintiffs’ elec tronic data . Wherea s Plainti ffs a lleg e that their phy sical files we re r emoved f rom their off ices, ther e is no compar able, non- conclusory alleg ation perta ining to Plaintiffs’ ele ctronic data. At best, Plaintiffs have a lleg ed that De fenda nts acc essed a

nd copied e lectronic data 1 1 (tec hnically , Plaintiffs impl y that Def endants c opied elec tronic data , but the implication is clear enoug h). See2d Am. Compl. ¶¶ 40-41. Howe ver, a plaintiff fa ils to st ate a

claim for c onversion wher e the de fenda

nt is only alleg ed to have made c opies of docume nts while the plaintiff re tains the orig inals beca

use the mer e copy

ing of documents does not ser iously interfe re w ith the plaintiff’s rig ht of control. See F urash & Co., Inc. v. M

cClave , 130 F. Supp. 2d 48, 58 (D.D .C. 2001) (c iting Pearson , 410 F.2d at 706); accord FM C Corp. v. Capit al Cit ies/ABC, Inc. , 915 F.2d 300, 303- 04 (7th Cir. 1990) (a pply ing Ca lifornia law) ; Internet Arc hive v . Shell , 505 F. Supp. 2d 755, 763 (D. Colo. 2007) (applying Colora do law). The exercise of owner ship, dominion, or control is an essential e lement of a claim for c onversion under District of Columbia law, and be cause the Second Ame nded Complaint is devoid of any alleg ation that Def

endants deleted, c orrupted, or

otherwise inter fer ed with Plaintiffs’ control ove r their e lectronic data, Plaintiffs have fa iled to state a c laim that is plausible on its fac e. The ref ore, the Court shall gr ant Plaintiffs’ alleg ation that Def endants “ exercise[d] . . . ownership, dominion, or control 1 1 over [their] property ,” 2d Am. Compl. ¶ 88, is the sort of “f ormulaic re citation” of a

n element of a ca use of a ction that should be disreg arde d on a motion to dism iss, Twombly , 550 U.S. at 555. 44the Gauba tz Defenda

nts’ Motion to Dism iss insofar as it see ks dismis sal of Plaintiffs’ cla im that Def endants c onverte d Plaintiffs’ elec tronic data
.

4. P laintif

fs’ Breach of Fiduciary Duty Claim (Count F our of the Second Am ended Com plain t) Under District of Columbia law, a plaintiff a sserting a cla im for bre ach of fiduciar y duty must alleg e that (i) the defe ndant had a fiduciar y duty to the plaintiff, (ii) the de fenda nt brea ched that duty , and (iii) the br eac h was the pr ox imate ca use of a n injury
. See Paul v. Judicial W atch, Inc. , 543 F. Supp. 2d 1, 5 (D.D .C. 2008). In their Motion to Dismi ss, the Gaubatz Defenda nts focus on the f

irst of these e lements, arguing tha t Plainti ffs have fa iled to come for war d with fac tual alleg ations that would sugg est that there exis ted a f iduciary relationship between Chris Gaubatz and Pl aintiffs. SeeDef s.’ MTD Mem. at 21-22; Defs.’ MTD Reply Mem. at 12-13. The Gaubatz Defenda

nts contend that there was no c ontrac tual relationship between the pa rties and that “[i] t is not enough to say that Chris Gaubatz was an inter n.” De fs.’ MTD Me m. at 22. Howeve r, eve n assuming that no contrac tual relationship ex isted betwee n Chris Gaubatz and Plaintiffs, but see infra Part I I I .C.5, Pl aintiffs have come f orwa rd with sufficie nt fac tual alleg ations to survive a motion to dismi ss. Significa ntly , the District of Columbia courts have deliberately left the de finition of a “fiduc iary rela tionship” open-ende d, allowing the conc ept to fit a wide a rra y of fa ctual circ umstances. High v. Mc Lean Fin. Corp. , 659 F. Supp. 1561, 1568 (D.D .C. 1987); see also United Feature Sy ndicate, Inc . v. Miller Fe atures Syndicate, I nc. , 216 F. Supp. 2d 198, 218 (S.D.N.Y. 2002) ( “[T] he exact limits of what constitutes a fiducia ry relationship are impossible of statement.” ) (quotation mar ks omitt ed). D ecidingwhether a fiduc iary

relationship ex ists in a particula r ca se re quires “a

sear ching inquiry

into the nature of

the re lationship, the promises 45made, the ty pe of se rvice s or advice g iven and the le g itimate expectations of the par ties.” Firestone v. Fire

stone , 76 F.3d 1205, 1211 ( D.C. Cir. 1996) (quotation marks omitted). B eca use the inquiry

is fact- intensive, it is often inappropria te to decide whether

a fiduc iary

relationship exis ted eve n in the context of a motion for summary judgme nt. Id. Consist ent with this observation, courts have obse rved that a claim for brea ch of f

iduciary duty is ge nera lly

not
amena ble to dismiss al for f

ailure to state a

claim when the claimed g round for dismiss al is the absenc e of a

fiduciar y relationship. See Abercrom bie v. Andre w Coll ege , 438 F. Supp. 2d 243, 274 (S.D.N.Y. 2006); Thompson, Cobb, Bazil io & Assocs., P.C. v. Grant Thornton LL P , 2002 WL 458997, at *6 (D.D .C. Mar. 25, 2002). To the extent the Gaubatz Defenda nts intend to sugg est that a fiduc iary relationship can
never exis t betwee n an intern a nd the entity

eng ag ing the intern, the a fore mentioned authorities fore close such a

n expansive argument. Meanwhile, Plaintiffs alleg e that Chris Gaubatz s ecur ed his internship only

by making a number

of af firmatively

false sta tements and omitting mate rial information about his bac kg round, intere sts, and intentions with t he spec ific intention of inducing Plaintiffs to repose a measure of trust and c onfidenc e in him, and that as a result of the trust and conf

idence repose d in him, C hris Gaubatz was affor ded ac cess to conf idential, proprieta ry , and privileg ed mater ials as well as non- public are as of Plaintiffs’ of fice s. See2d Am. Compl. ¶¶ 2, 19-20, 22-23, 25-26, 33, 93. T hese a lleg ations imply a re lationship akin to one betwee n employ er a

nd employ ee, which under some circ umstances may suffice to support a claim for br eac h of fiducia ry duty under D istrict of Columbia law. See Cahn v. Antioch Univ. , 482 A.2d 120, 131-32 (D .C. 1984). I n any event, they

suffice to sugg est that the re lationship betwee n Chris Gaubatz and Plaintiffs extended beyond the normal bounds of a contra ctual
46relationship t o form a spe cial re lationship founded upon trust and conf idence
. See Paul , 543 F. Supp. 2d at 6. Whether Plaintiffs will be able to show that the re lationship was g rounded in a highe r leve l of trust than is normally prese nt betwee n those involved in arm’s- leng th business transac tions is a question that must be answ ere d afte r discover y . Plaintiffs have stated a plausible claim for

brea ch of f

iduciary duty . There fore , the Court shall deny the Gaubatz Def endants’ Motion to Dismiss ins ofar as it seeks dismissal of Plaintiffs’ claim for brea ch of fiduciar y duty
. 5. P laintif

fs’ Claim for Breac h of

Contrac t (Count F ive of the Second Am ended Com plain t) To state a c laim for bre ach of contra ct under

District of Columbia law, a plaintiff must alleg e (i) a

valid contra ct betwe en the pa rties, (ii) an oblig ation or duty arisingout of the contra ct, (iii) a bre ach of

that duty , and (iv) da

mag es ca used by that brea ch. Tsint olas Realty Co. v. Mende z , 984 A.2d 181, 187 (D.C. 2009). In this case, Plaintiffs alleg e that Chris Gaubatz brea ched the Confidentiality Ag ree ment enter ed into betwee n him and CAI R-AN and tha t the other De fenda

nts induced, aide d and abe tted, or conspire d with Chris Gaubatz to breac h the ag ree ment. See 2d Am. Compl. ¶¶ 100-110. In their Motion to Dismi ss, the Gauba tz Defenda

nts argue that Plaintiffs have failed to state a valid claim for br eac h of contra ct for thr ee r easons. First, the Ga

ubatz Defe ndants argue that Plaintiffs have failed to show that ther e we re two parties to the a g ree ment. The a rgument is this: (i) the supposed c ontrac t identifies the “Council on Americ an I slamic Relations” as the r eleva nt counter- party ; (ii) the “Council on Amer ican I slamic Relations” does not exist; (iii) there fore , there wer e not two par ties to the contrac t. See Def s.’ MTD Mem. at 21. There are sever al problems with this argument. Not least amongthem is that the second pr ong of the a rgument require s consideration of materials outside the plea dings

47and the sc ope of the Court’s revie w at this time is li mited to the alleg ations in the pleading s. See

Fe d. R. Civ. P . 12(d). At this time, all that rea lly matters is that Plaintiffs have spe cifica lly alleg ed that CAI R-AN wa s a par ty to the Confidentiality

Ag ree ment. See2d Am. Compl. ¶ 101. That cla im is entirely

plausible g iven that Chris Gaubatz’s int ernship is alleg ed to have been w ith CAI R-AN. True, the ag ree ment that is attache d to and incorpor ated into the Second A mended Complaint i dentifies the r eleva nt counter- party

as the “ Council on America n-I slamic Relations” and not CAI R-AN, or the Council on America n-I slamic Relations Action Networ k, I nc. See id. Ex . A (Confidentiality

Ag ree ment) at 1. Assuming without deciding that the re fer ence is ambig uous, Plainti ffs a

re none theless entitled to conduct discove ry befor e beingasked to prove the exist ence of an e nforc eable ag ree ment betwee n Chris Gaubatz and CAI R-AN. De pendingon what evide nce Plaintiffs a re a ble to marshal, the G aubatz Def endants’ a

rgument may

or may not win out in a motion for summary judgme nt. See Novec on Ltd. v. Bulgarian-American Enter. Fund , 190 F.3d 556, 564 ( D.C. Cir. 1999) (“The party asser ting the e x istence of

an enf orce able contra ct bea

rs the burde n of proof

on the issue of c ontrac t formation.”) , cert. de nied , 529 U.S. 1037 (2000). F or now, it suffice s to say that the question is one of intent, and it is a question that is not amenable to re solution at thi s stag e of the proce eding s. Second, the Ga

ubatz Defe ndants argue that Plaintiffs have failed to plea d that the contra ct was supporte d by

adequa te consider ation. SeeDef s.’ MTD Mem. at 21. They contend that “[p] roviding the job itself can’ t be the conside ration bec ause the pleadingalleg es that def endant worke d for CAI R for months before signingthe document a nd past conduc t cannot be consideration for a late r contra ct.” Id. Plaintiffs do not alleg e that Chris Gaubatz was working
48for CAI R-AN for months before he sig ned the Confidentiality Ag ree ment; they

alleg e that he enter ed into the ag ree ment in J une 2008, the same month he is alleg ed to have secur ed his internship with CAI R-AN. See 2d Am. Compl. ¶¶ 21, 101. Even if this wer e not the ca se, the District of Columbia adher es to the majority position t hat continued e mploy ment may serve as consideration for a ne w ag ree ment if the employ ment is at-will. See Kauffman v. Int’l Bhd. of Teamsters , 950 A.2d 44, 48 (D.C. 2008). B eca use there is no indication that Chris Gaubatz’s relationship wit h CAI R-AN wa s any thing other

than at-w ill and terminable at the elec tion of either pa rty , the Gaubatz Defenda nts’ arg ument must fail. Third, the Ga

ubatz Defe ndants argue that, eve n if the par ties entere d into a valid ag ree ment, Plaintiffs have fa iled to point to any contra ctual oblig ation that was bre ache d by Chris Gaubatz’s allege d misconduct. See Def s.’ MTD Reply

at 11-12. How ever , beca use this argument was ra ised for the first time in reply , deprivingPlaintiffs of an opportunity to rende r a meaning ful response , the Court declines to c onsider it on the merits. See Baloch , 517 F. Supp. 2d at 348. B ut even if the Court were inclined to rea ch the mer its, the argument would fail. The Gaubatz Defenda

nts argue that “[if] a contrac t were formed, CAI R has not stated its contents” and “ha s not pointed to a single pr ovision of any contra ct, ora l or written, that wa s brea ched.” Def s.’ MTD Reply

at 11. This is just wrong. N ot only have Plaintiffs attached the form of the alleg ed wr itten ag ree ment to their pleading s, but they have spe cifica lly

identified which provisions of the Confidentiality Ag ree ment Chris Gaubatz alleg edly brea ched. See2d Am. Compl. ¶ 103 & Ex. A (Confidentiality Ag ree ment). Nonethele ss, couche d within this argument is the sugg estion, never fully articulated, that the Confidentiality

Ag ree ment does not cove r the mate rials alleg ed to be take n:
49[The Confidentiality Ag ree ment ] appea rs to be a bare ly modified confide ntiality ag ree ment for a softwar e company . The classes of information cover ed by the ag ree ment are information that relates to leg al rese arc h, Products softwar e source code, object code, service s, development, proce sses, purcha sing, acc ounting, fl ow char ts, marke ting, merch andis ing, and/or any customer information, other valuable busine ss information or business pra ctices. Def s.’ MTD Reply

at 11. The G aubatz Def

endants a re r efe rring

here to the ag ree ment’s definition of “c onfidential information”:

“Confidential I nformation” shall be dee me d to me an any information, including, but not limit ed to: prese ntation a nd training manuals, and that which relates to l ega l researc h, products softwar e source code, object code, s ervic es, development, proce sses, purcha sing, acc oun ting, flow char

ts, marke ting, merc handising , and/or any custo m er information, other valuable business information or business of CAI R which is disclosed by CAI R or on its behalf , befor e or afte r the date here of to the intern, either direc tly or indirect l y , in writing or by

visual inspection. 2d Am. Compl. Ex . A (Confidentiality Ag ree ment) at 1. Admittedly , the term is not define d with model clar ity . Most notably , despite the interve ntion of a colon a nd a non-e x haustive list of the ty pes of infor

mation cover ed, it appea

rs that the par

ties may have intende d the last few clause s to modify “any information,” mea

ning that the ag ree ment would cover not “any information” whatsoeve r but rathe r “a

ny information . . . which is disclosed by CAI R or on its behalf . . . to the intern.” B ut the Court need not addr ess that pre cise que stion now. I t merely flag s it as a question that may

require the par

ties’ attention in discovery . For now, it is sufficient to note that the def inition ex pressly

includes “infor

mation that relate s to leg al re sear ch” a nd “valua ble business information,” a

nd Plaintiffs have a lleg ed that the mate rials taken by Chris Gaubatz included privileg ed communications and documents containing Plaintiffs’ proprieta

ry information. See 2d Am. Compl. ¶¶ 5, 52, 65. Those alleg ations are sufficie nt to state a

50plausible claim that Chris Gaubatz breache d the Confidentiality Ag ree ment. For the fore g oing r easons, the Court sha ll deny the Gaubatz Defenda

nts’ Motion to Dismiss i nsofar

as it seeks dismissal of Plaintiffs’ brea ch of c ontrac t claim. 6. P laintif

fs’ Trespass Clai m (Count Seven in the Second Ame nded Com plain t Under District of Columbia law, a tre spass is (i) an una uthorized entry

(ii) onto the plaintiff’s prope rty

(iii) that interfe res with the plaintiff’ s possessory interest. Sarete, Inc . v. 1344 U. Street Ltd. P’ship , 871 A.2d 480, 490 (D.C. 2005). In this case, Plaintiffs’ tre spass claim divides into two branche s. First, Plaintiffs claim that Chris Gaubatz commi tted a tre spass mere ly by enter ing the ir offic es bec ause he “only g ained a cce ss to the property . . . throug h the use of prete nse, subterf

ug e, misrepr esentation, and/or conc ealment.” 2d Am. Compl. ¶ 120. Second, Plaintiffs claim that Chris Gaubatz committed a trespass by exceedingthe conse nt he obtained from Plaintiffs by

“stea ling doc uments, acc essing restric ted ar eas a nd networks, a

nd rec ording without permission conversations in P laintiffs’ off ices.” Id. The Ga

ubatz Defe ndants prese nt three rea sons why

they believe this cla im should be dismi ssed. First, the Ga

ubatz Defe ndants argue that Plaintiffs have failed to plea d that “the pr emises
wer e private and not open to the public.” Def s.’ MTD Mem. a

t 22. Even assuming that a plaintiff must plead that the prope rty at issue was not ope n to the public in order to state a cla im for tre spass (something this Court doubt s), Plaintiffs do alleg e that their of fice s “ar e not g ener ally open to the public and ma y be ac cesse d by

third parties only

upon invitation or authorization” and that “[t]he public is not permitted ac cess to the a rea s of the off

ices . . . whe re doc uments are stored or ma intained or whe re [Plaintiffs’] computers and computer serve rs, networ

ks, and sy stems are stored and ma intained.” 2d Am. c ompl. ¶¶ 27-28. Give n these e x press a lleg ations, 51the Gauba tz Defenda

nts’ first argument is without m erit. Second, the Ga

ubatz Defe ndants argue that Plaintiffs’ tre spass claim must fail bec ause they have not a lleg ed dama g es. SeeDef s.’ MTD Mem. at 22. Howeve r, provided the damag es
are of the kind that would ty pically be expected to f

low from a tr espass, Plaintiffs ar e not require d to plead their da mag es with particula

rity
. SeeFe d. R. Civ. P . 8(a) (3), 9( g ); see also Pearson , 410 F.2d at 707 (“The measure of dama g es in trespa ss is . . . the actual diminution of [ ] value c aused by

the [defenda

nt’s] i nterfe renc e.”) . Reg ardle ss, District of Columbia law allows a plaintiff to rec over nominal da mag es for trespass. Dec ker v . Dreisen-Freedm an, Inc. , 144 A.2d 108, 110 (D.C. 1958). The ref ore, e ven assuming for the sa ke of a rgument that Plaintiffs could not rec over a ctual dama g es, that still would not be fatal to their cla im. Third, the Ga

ubatz Defe ndants argue that Plaintiffs’ tre spass claim must fail bec ause Chris Gaubatz was author ized to enter Plaintiffs’ off ices. SeeDef

s.’ MTD Reply

at 7-8. While this arg ument was fir st raised in re ply , the Court will address it bec ause Plaintiffs ar g uably opened the door in their opposition. SeePls.’ MTD Opp’n at 19. How ever , the ar g ument is unavailing . As an initial matter, it has no bea ring on the sec ond branc h of Plaintiffs’ trespa ss claim—namely , the contention that Chris Gaubatz ex cee ded the c onsent that he obtaine d from Plaintiffs by

doing thing s like acc essing restric ted ar eas a nd networks. As a

g ener al matter, “ [a] condition or restric ted conse nt to enter land c rea tes a privileg e to do so only in so far a s the condition or restric tion is compli ed with.” Restate ment (Second) of Torts § 168 (1965)
. There fore , “on-site e mploy ees ma y exceed the sc ope of the ir invitation to acce ss, and so not be ‘rig htfully ’ on, the e mploy er’ s proper ty . . . at a plac e or time for bidden by their employ er.” ITT Indus., Inc . v. Nat’l Labor Relations Bd. , 413 F.3d 64, 72 n.2 ( D.C. Cir 2005).
52As to the first bra nch of Plaintiffs’ tre spass claim—that is, the contention that Chris Gaubatz commi tted a tre spass mere ly by enter ing Plaintiffs’ of

fice s beca use he obta ined Plaintiffs’ consent throug h subterfug e and f raud—the Gaubatz Defenda nts’ consent a

rgument is premature. Consent “g iven upon fra udulent misrepre sentations” will not alway s defe at a c laim for tre spass. Dine v. W

estern Ex terminating Co. , 1988 WL 25511, at *9 (D.D .C. Mar. 9, 1988). Consent may

be inef fec tive if “induce d . . . by a substantial mistake conc erningthe nature of the invasion of [the owner’ s] i ntere sts or the extent of the harm to be e x pecte d from it and the mistake is known to the other or is induce d by the other’ s misreprese ntation.” Restatement (Second) of Torts §§ 173, 892B (2) ( 1965); see also De snick v . Am. Broad. Cos., Inc. , 44 F.3d 1345, 1352 (7th Cir. 1995) (noting that it is no defense to tre spass wher e “a competitor g ain[s] entry to a business firm’s pre mises posing a s a customer but in fact hopingto steal the firm’s trade secr ets.”). B eca

use this is precisely

what Plaintiffs have alleg ed occ urre d here , whether the Gaubatz Defenda

nts’ argument will win out is a question that must await discove ry . For the fore g oing r easons, the Court will deny the Gaubatz Defenda

nts’ motion to di smiss insofar a s it seeks dismissal of Pl aintiffs’ tre spass claim. I n summary , the Court will gr ant the motion ins ofar

as it seeks dismissal of Plaintiffs’ claim that De fenda nts converte d Plaintiffs’ elec tronic data

and will deny

the motion in all other respe cts. The Ga ubatz Defe ndants will be require d to serve a

nd file their Answ er to the Sec ond Amended Complaint on or bef ore July 8, 2011.

53IV. CONCLUSION

For the re asons set for

th above, the Court sha ll gr ant Plaintiffs’ [43] First Motion to Amend and the ir [48] Second Motion to Amend, on the condition that Plaintiffs serve the Summons and the Sec ond Amended Complaint upon ea ch of the CSP Def endants on or be fore J uly 25, 2011. The CSP Defenda nts will t hen have twenty -one da y s from the date of ser

vice to
serve and file a

responsive ple ading
. See Fe d. R. Civ. P . 12(a) (1)( A)(i) . I n addition, the Court shall g rant in par

t and deny

in part the Ga

ubatz Defe ndants’ [34] Motion to Dism iss. Specifica lly , the Court will gr ant the motion insofar a s it seeks dismissal of Pl aintiffs’ c laim that Def endants c onverte d Plaintiffs’ elec tronic data and will deny

the motion in all other respe cts. The Ga ubatz Defe ndants will be requir ed to serve and file the ir Answer to the Second Amende d Complaint on or before J uly 8, 2011. Finally , the Court will hold an Initial Scheduling Confere nce on Aug ust 17, 2011, at 9:00 a.m., in Courtroom 28A before J udg e Colleen Kollar

Kotelly . An appr opriate or der a ccompa nies this memorandum opinion.

Date: J une 24, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

54