UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRENT GARBACK,

Plaintiff,

v.

LINDA LOSSING, MARVIN SHWEDEL,

CYBER-TRACE TECHNOLOGIES, and

JOHN SAVAGE,

Defendants.

 /

Case No. 09-cv-12407

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING DEFENDANT SHWEDEL'S MOTION TO

DISMISS (docket no. 5) AND GRANTING LEAVE TO FILE AMENDED COMPLAINT

Plaintiff Brent Garback has sued the above defendants for allegedly hacking into his

email account and reading his emails. Information in emails between Garback and his

divorce attorney was then allegedly used for the purpose of obtaining an advantage in

negotiating a divorce settlement between Garback and his ex-wife, defendant Linda

Lossing. Garback alleges violations of Titles I and II of the Electronic Communications

Privacy Act, 18 U.S.C. §§ 2510, et seq., as well as other state law claims. Defendant

Marvin Shwedel moves under Fed. R. Civ. P. 12(b)(6) to dismiss the claims asserted

against him. For the reasons below, the Court grants the motion and will give Garback 21

days to file an amended complaint to remedy the various deficiencies cited herein.

FACTS

The following facts are alleged in the complaint. Brent Garback was once married to

Defendant Linda Lossing. Compl. ¶ 7. Lossing and Garback divorced in June 2007. Id.

Defendant Marvin Shwedel represented Lossing in the divorce proceedings. Id. ¶ 8. In

December 2005, after extensive negotiations, Garback and Lossing reached a settlement
2

agreement, the details of which are not relevant here. Id. ¶ 10. In June 2007, Garback

discovered that during the divorce proceedings, Lossing had allegedly conspired with the

other defendants for the purpose of intercepting Garback’s emails between he and his

divorce counsel. Defendants then used the information in the emails to craft negotiating

points and ultimately a more favorable divorce settlement. Id. ¶ 12.

More specifically, Garback alleges that Lossing, knowing that Garback often

communicated with his attorney by email, hired Defendant Cyber-Trace Technologies

(“Cyber-Trace”) for the purpose of “hacking” into Garback’s email accounts to access

"stored communications" maintained by Garback’s internet service provider (“ISP”). Id. ¶

14. Defendant John Savage directed the services of Cyber-Trace. Id. ¶ 15. When Lossing

received the emails from Cyber-Trace, she passed them to Shwedel, who used them to

gain a negotiating advantage in the divorce proceedings. Id. ¶¶ 15, 17.

DISCUSSION

A. Legal Standard - Rule 12(b)(6)

“[W]hen the allegations in a complaint, however true, could not raise a claim of

entitlement to relief, ‘this basic deficiency should . . . be exposed at the point of minimum

expenditure of time and money by the parties and the court.’ ” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 557 (2007) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

§ 1216, pp. 233-34 (3d ed. 2004)). Accordingly, Federal Rule of Civil Procedure 12(b)(6)

allows a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief

even if everything alleged in the complaint is true. See Mayer v. Mylod, 988 F.2d 635, 638

(6th Cir. 1993).

In assessing a motion brought pursuant to Rule 12(b)(6), the court must presume as

true all well-pleaded factual allegations in the complaint and draw all reasonable inferences
3

from those allegations in favor of the non-moving party. Bishop v. Lucent Techs., Inc., 520

F.3d 516, 519 (6th Cir. 2008). Although the pleading standard is liberal, and the court must

accept as true all allegations in the complaint, the court need not accept as true any legal

conclusion alleged therein, even if couched as a factual allegation. Ashcroft v. Iqbal, 129

S. Ct. 1937, 1945 (2009). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

The Federal Rules of Civil Procedure do not require a claimant to set out in detail the

facts upon which he bases his claim. To the contrary, all the Rules require is “a short and

plain statement of the claim” that gives the defendant fair notice of what the plaintiff's claim

is and the grounds upon which it rests. Fed. R. Civ. P. 8(a). This requires that a claimant

put forth “enough facts to raise a reasonable expectation that discovery will reveal evidence

of [the requisite elements of the claim].” Bell Atl., 550 U.S. at 556. Thus, although “a

complaint need not contain ‘detailed’ factual allegations, its ‘[f]actual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all the

allegations in the complaint are true.’” Ass’n of Cleveland Fire Fighters v. Cleveland, Ohio,

502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl., 550 U.S. at 555). Therefore, the Court

will grant a Rule 12(b)(6) motion only in cases where there are simply not “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl., 550 U.S. at 570. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is

entitled to relief.’” Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).

B. Analysis
4

Schwedel seeks dismissal of all counts against him because, he claims, the

allegations fail to state a claim for relief. The Court addresses each count below. 

1. Count One - Titles I & II of the Electronic Communications Privacy Act

Count one alleges, inartfully, violations of Titles I and II of the Electronic

Communications Privacy Act of 1986 ("ECPA"), codified at 18 U.S.C. § 2510 and 18 U.S.C.

§ 2701, respectively. The Court addresses each claim separately. 

a. Title I of the ECPA - 18 U.S.C. § 2510 ("The Wiretap Act")

Garback alleges that Shwedel and others violated Title I of the ECPA, 18 U.S.C. §

2511 ("Wiretap Act"), when they allegedly "hacked" into Garback’s email account and read

his emails. Section 2511 prohibits, among other things, the “interception” of any wire, oral,

or electronic communication, 18 U.S.C. § 2511(1)(a), as well as the intentional use of the

contents of any electronic communication with knowledge that the information was obtained

through the interception of an electronic communication, 18 U.S.C. § 2511(1)(d). These

provisions may be enforced in a civil action brought by one whose communication was

intercepted. 18 U.S.C. § 2520(a). Both sides agree that “electronic communication”

includes email. The issue here is whether Garback has sufficiently alleged an

"interception." Shwedel argues that Garback has failed to allege that anyone, let alone

Shwedel, "intercepted" Garback’s email.

"Intercept” is defined in the Wiretap Act as the “aural or other acquisition of the

contents of any wire, electronic, or oral communication through the use of any electronic,

mechanical, or other device.” 18 U.S.C. § 2510(4). The Sixth Circuit has not addressed

the issue, but another judge from this District has agreed with the other circuits that have.

All agree that the term "intercept" "'encompasses only acquisitions contemporaneous with

transmission.'" See Bailey v. Bailey, No. 07-11672, 2008 WL 324156, at *4 (E.D. Mich.
5

Feb. 6, 2008) (Cox, J.) (emphasis added) (quoting United States v. Steiger, 318 F.3d 1039,

1047 (11th Cir. 2003) and citing Steve Jackson Games, Inc. v. United States Secret

Service, 36 F.3d 457 (5th Cir. 1994); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th

Cir. 2001); In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003); and Fraser v. Nationwide

Mutual Ins. Co., 352 F.3d 107 (3rd Cir. 2003)). Judge Cox noted that the general

reasoning behind these decisions is that "based on the statutory definition and distinction

between 'wire communication' and 'electronic communication,' the latter of which

conspicuously does not include electronic storage, Congress intended for electronic

communication in storage to be handled solely by the Stored Communications Act." Bailey,

2008 WL 324156, *4. As did Judge Cox, the Court finds this reasoning persuasive and

adopts it here.

This standard does not require courts to measure the time between transmission and

receipt to determine whether an acquisition was contemporaneous with transmission.

Rather, courts must consider the method used by alleged violators. In Steiger, for example,

the Eleventh Circuit held that the conduct at issue did not constitute interception when an

anonymous source used a Trojan Horse virus. An anonymous source uploaded a

photograph with an embedded Trojan Horse virus to an online news group. Once Steiger

downloaded the photograph, the virus permitted the anonymous source to enter Steiger's

computer via the internet and locate incriminating evidence. The source later passed the

evidence to law enforcement. 318 F.3d at 1041-44. Based on this evidence, Steiger was

indicted for violating a series of federal statutes involving the sexual exploitation of minors.

He moved to suppress the evidence arguing, in part, that the anonymous source violated

the Wiretap Act to obtain the evidence. The panel held there had been no interception by
 1 Although the court's holding on this issue is arguably dicta, its reasoning is persuasive

nonetheless.

6

the source.1 Id. at 1046. It adopted the contemporaneity standard used by the Fifth and

Ninth Circuits and held:

[T]here is nothing to suggest that any of the information provided in the source's

emails to [law enforcement] was obtained through contemporaneous acquisition

of electronic communications while in flight. Rather, the evidence shows that the

source used a Trojan Horse virus that enabled him to access and download

information stored on Steiger's personal computer. This conduct, while possibly

tortious, does not constitute an interception of electronic communications in

violation of the Wiretap Act. 

Id. at 1050; see Bailey, 2008 WL 324156, *4 (no interception where defendant uploaded

to plaintiff's computer a program allowing defendant to learn plaintiff's passwords and later

used the program to access plaintiff's electronic communications, citing Steiger as

analagous). 

Similarly, courts have found that simply accessing another's stored email does not

constitute interception because it is not done contemporaneously with the transmission of

the original email. See, e.g., Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107, 114 (3d

Cir. 2003); Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 980-81 (M.D. Tenn.

2008); Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 557-58

(S.D.N.Y. 2008). Indeed, interception of email can occur in only a very narrow range of

circumstances. The court in Steiger described these circumstances:

[T]here is only a narrow window during which an E-mail interception may occur

– the seconds or mili-seconds before which a newly composed message is

saved to any temporary location following a send command. Therefore, unless

some type of automatic routing software is used (for example, a duplicate of all

of an employee's messages are automatically sent to the employee's boss),

interception of E-mail within the prohibition of [the Wiretap Act] is virtually

impossible.
 2

 There are two paragraphs numbered "14".

7

Steiger, 318 F.3d at 1050 (quoting Jarrod J. White, E-Mail@Work.com: Employer

Monitoring of Employee E-Mail, 48 Ala. L. Rev. 1079, 1083 (1997)).

Applying these standards, the Court concludes that Garback has failed to state a

plausible claim against Schwedel for violation of the Wiretap Act. Shwedel asserts that

"there is no allegation that any emails were 'intercepted' contemporaneously with

transmission. Instead, the complaint alleges that Lossing had [Cyber-Trace] retrieve

stored emails that had already been delivered to Garback's email account." Def.'s Br., at

3 (emphasis in original). This is a fair characterization of the allegations in the complaint.

For example, paragraph 14(1)2 alleges that Lossing retained the services of Cyber-Trace

for the express purpose of "hacking" into Garback's email accounts to access "stored

communications" maintained by Garback's ISP before and after the emails were delivered

to Garback. This statement does not allege anything close to a contemporaneous

interception. Paragraph 18 alleges that "defendants, and each of them, violated the federal

Wiretap Act, 18 USC 2520, which prohibits the intentional and unauthorized interception,

use or disclosure of electronic communications." This is a pure legal conclusion not entitled

to the assumption of truth. See Iqbal, 129 S. Ct. at 1950. 

Garback acknowledges these deficiencies, but submits that his inartful pleading does

not mean he has failed to state a claim. Pl.'s Br., at 10. He claims the allegations are

sufficient to provide notice to the defendants of the claims against them, which is all he

needs to do. Id. He asserts that discovery may show three possible ways in which

defendants may have intercepted his emails. First, it may show that they simply rerouted

all email intended for Garbak into a new mailbox accessible to the hacker. Second, it may

show the hacker inserted a copy-and-forward command that sent a copy of each email to
8

the hacker when it was received at the server. Third, it may show that the hacker set up

a separate notification trigger such that when an email was received and an arrival notice

was sent to Garback, a copy of that notice incorporating at least some of that information

was also sent to the hacker. Id. at 10-11. 

While the Court agrees that these factual scenarios might constitute an interception

under the standards articulated above, allegations that support these scenarios appear

nowhere in the complaint. Garback is speculating. The only place the word "intercept" is

even mentioned in the complaint is in paragraph 18, as part of a conclusory allegation.

Statements in a brief are not allegations. The complaint lacks sufficient factual allegations

to support a claim for violation of the Wiretap Act. See Found. for Interior Design Educ.

Research v. Savannah Coll. of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001) ("the price

of entry, even to discovery, is for the plaintiff to allege a factual predicate concrete enough

to warrant further proceedings, which may be costly and burdensome. Conclusory

allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged

in a fishing expedition.” (quoting DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d

53, 55 (1st Cir.1999))).

The Court will grant Garback leave to file an amended complaint, consistent with Rule

11, that sufficiently pleads interception. Shwedel raises additional arguments in support

of dismissing the Wiretap Act claim against him. The Court address these arguments so

that in the event Garback files an amended complaint, Shwedel's arguments will hopefully

be mooted by Garback's amendments to the complaint. Failure to remedy the deficiencies,

however, will result in dismissal of the claims without further leave to amend.

Shwedel argues that, assuming Garback had properly alleged an interception, there

are no allegations that Shwedel himself intercepted any emails. Def.'s Br. p. 3. ("[A]nd
 3

 The complaint also alleges that "defendants," which would include Shwedel, "violated

the federal Wiretap Act, 18 USC 2520," Compl. ¶ 18, but as indicated above, this is a bare

legal conclusion not entitled to the presumption of truth. 

 4

Though the complaint alleges that Shwedel knew the information was "stolen," see

Compl. ¶ 17, it fails to allege that Shwedel knew the information was obtained through an

interception that violated § 2511(1)(d). The difference is significant. Garback must plead

that Shwedel had knowledge or reason to know of the illegality of the interception. See

Williams v. Poulos, 11 F.3d 271, 284 (1st Cir. 1993) ("Thus, in a civil action, a plaintiff must

demonstrate '1) the information used or disclosed came from an intercepted

communication, and 2) sufficient facts concerning the circumstances of the interception

such that the defendant could, with presumed knowledge of the law, determine that the

interception was prohibited in light of [§ 2511(a)].'" (quoting Thompson v. Dulaney, 970 F.2d

744, 749 (10th Cir. 1992)); see also United States v. Wulinger, 981 F.2d 1497, 1501 (6th

Cir. 1992) (knowledge or reason to know that the interception itself violated the Wiretap Act

in essential element of § 2511(1)(d) criminal offense).

9

certainly, it doesn't allege that Shwedel intercepted any communications"). Shwedel is

correct. The complaint alleges only that "Lossing turned over the stolen emails to Shwedel

as her attorney" and the two used the emails to craft negotiating positions. Compl. ¶ 17.3

Interception, however, is not the only basis for liability under the Wiretap Act.

Specifically, § 2511(1)(d) prohibits the intentional use or endeavor to use the contents of

an electronic communication, knowing or having reason to know that the information was

obtained through the interception of an electronic communication in violation of the Wiretap

Act. 18 U.S.C. § 2511(1)(d). Accordingly, although Garback does not allege that Shwedel

engaged in the actual interception, Shwedel could be liable if he intentionally used the

information knowing it was obtained through an unlawful interception. The problem for

Garback, however, is that the complaint contains no allegations that Shwedel used any

intercepted information with knowledge that it was unlawfully intercepted.4

 Therefore, the

complaint would fail to state a claim against Shwedel even if it properly alleged an

interception. 
10

Garback's final effort to breathe life into his Wiretap Act claim is to assert that his

failure to allege that Shwedel himself directly intercepted emails is not fatal because the

complaint alleges that Shwedel conspired to intercept emails. Pl.'s Resp. Br., at 12.

Garback provides no support for his contention that civil liability under the Wiretap Act

exists for those actors other than primary interceptors. There is no textual support in the

statute for applying secondary liability for Wiretap Act violations. "Normally federal courts

refrain from creating secondary liability that is not specified by statute." Doe v. GTE Corp.,

347 F.3d 655, 658-59 (7th Cir. 2003) (Easterbrook, J.) (citing Central Bank of Denver, N.A.

v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994)). "Although a statute's

structure may show that secondary liability has been established implicitly," Judge

Easterbrook wrote in GTE Corp., "it is hard to read § 2511 in that way." Id. at 659. §

2511(1) is very precise about who, other than primary interceptors, can be liable. "A statute

that is this precise . . . should not be read to create a penumbra of additional but

unspecified liability." Id.; cf. Freeman v. DirecTV, Inc., 457 F.3d 1001, 1005 (9th Cir. 2006)

(declining to expand civil liability under §§ 2702 and 2707 of the ECPA to include

conspirators as well as aiders and abetters). Without any persuasive authority for

expanding the Wiretap Act to include secondary liability, the Court will not do so now. If

Garback chooses to re-plead his Wiretap Act claim against Shwedel, he must allege that

Garback himself intercepted emails or used them with knowledge they were unlawfully

intercepted.
 5 Although the body of the complaint does not actually allege a violation of § 2701, the

heading for count one does refer to the statute so the Court addresses it on the assumption

that Garback intended to state a claim under § 2701. 

11

b. Title II of the ECPA - 18 U.S.C. § 2701 ("The Stored Communications Act")

Garback also asserts a claim under Title II of the ECPA – the Stored Communications

Act, 28 U.S.C. §§ 2701 et seq.

5

 Section 2701 provides, in relevant part:

Except as provided in subsection (c) of this section whoever-

(1) intentionally accesses without authorization a facility through which an

electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic

communication while it is in electronic storage in such system shall be punished

. . . .

18 U.S.C. § 2701(a). A private right of action is available for any person aggrieved by an

intentional or knowing violation of the statute. 18 U.S.C. § 2707(a). 

Congress's general purpose of the ECPA, including the Stored Communications Act,

was to create a cause of action against "'computer hackers (e.g., electronic trespassers).'"

Sherman & Co. v. Salton Maxim Housewares, Inc., 94 F. Supp. 2d 817, 820 (E.D. Mich.

2000) (quoting State Wide Photocopy Corp. v. Tokai Fin. Servs., Inc., 909 F. Supp. 137,

145 (S.D.N.Y. 1995)). Section 2701(a) prohibits the intentional and unauthorized access

of an electronic communication service and subsequent obtainment, alteration, or

prevention of authorized access to the service. Id. It does not, however, prohibit disclosing

and otherwise using the information obtained therefrom. Id. (citing Wesley Coll. v. Pitts,

974 F. Supp. 375, 389 (D. Del. 1997)); accord Cardinal Health 414, Inc. v. Adams, 582 F.

Supp. 2d 967, 966 (M.D. Tenn. 2008); In re Am. Airlines, Inc., Privacy Litig., 370 F. Supp.

2d 552, 558-59 (N.D. Tex. 2005).
 6

 To the extent Garback claims that Shwedel conspired with the other defendants to

access his emails, see Pl.'s Resp. Br., at 12, this claim fails because, just as with § 2511,

Congress did not expressly provide for secondary liability for violations of §§ 2701 and

2707 and Garback offers no persuasive authority for implying such liability. See, e.g.,

Jones v. Global Information Group, Inc., No. 06-00246, 2009 WL 799745, *2 (W.D. Ky.

Mar. 25, 2009) (declining to recognize liability for one who aided and abetted others or

conspired with others to violate § 2701); cf. Freeman, 457 F.3d at 1005 (declining to

expand liability under §§ 2702 and 2707 to create a private right of action for claims of

conspiracy or aiding and abetting).

12

Applying these standards, the allegations in Garback's complaint are insufficient to

state a claim against Shwedel for violation of §§ 2701 and 2707. Garback has not come

close to alleging that Shwedel himself accessed a facility through which an electronic

communication service is provided. Rather, he alleges that defendant Cyber-Trace

accessed his email account. Even if Shwedel used this information, however, such use is

not actionable. Accordingly, Garback has failed to state a claim against Shwedel for

violation of §§ 2701 and 2707.6

2. Count Two - Intrusion Upon Seclusion

Garback alleges in count two that Shwedel intruded upon Garback's seclusion. The

tort of intrusion upon seclusion is grounded in the common-law right of privacy. Battaglieri

v. Mackinac Ctr. of Public Policy, 261 Mich. App. 296, 300 (2004). The Michigan Court of

Appeals recently reiterated the nature of the tort, and its elements:

An action for intrusion upon seclusion focuses on the manner in which

information is obtained, not its publication; it is considered analogous to a

trespass. There are three necessary elements to establish a prima facie case

of intrusion upon seclusion: (1) the existence of a secret and private subject

matter; (2) a right possessed by the plaintiff to keep that subject matter private;

and (3) the obtaining of information about that subject matter through some

method objectionable to a reasonable man.

Begin v. Mich. Bell Tel. Co., 284 Mich. App. 581, 605 (2009) (quoting Doe v. Mills, 212

Mich. App. 73, 88 (1995)). Any attempt to plead intrusion upon seclusion based solely
13

upon the use of information obtained in an objectionable manner fails to state a claim. See

Mills, 212 Mich. App. at 89. 

Shwedel contends that the intrusion claim against him fails because the complaint

alleges only that Shwedel used private information about Garback that was obtained by the

other defendants in an objectionable manner. The complaint goes further, however, and

alleges that Shwedel conspired and acted in concert with the other defendants to intrude

upon Garback's seclusion. Compl. ¶¶ 12, 32-39. "'Conspiracy, by reason of the connection

it involves among the conspirators, may cause individuals to be responsible, who, but for

the conspiracy, would not be responsible at all.'" Roche v. Blair, 305 Mich. 608, 614 (1943)

(quoting Bush v. Sprague, 51 Mich. 41, 48 (1883)). Because, as far as the Court can tell,

Garback has stated a valid claim against the defendants who directly committed the

underlying tort, liability may run to Shwedel if he conspired with the other defendants to

commit the tort.

The problem, however, is that the complaint contains only legal conclusions, while

lacking well-pleaded allegations with respect to conspiracy. At paragraph 12, for example,

Garback alleges in conclusory fashion that "Lossing had conspired with the other

defendants for the purpose of intercepting Garback's emails . . . and [used] those stolen

communications as a basis for negotiations in the divorce." Compl. ¶ 12. Furthermore, the

few factual allegations that do appear in the complaint do not support the claim that

Shwedel conspired with any of the other defendants. Rather, Garback alleges that Lossing

hired Cyber-Tech to hack into Garback's email. Once Lossing received the emails, she

forwarded the information in the emails to Shwedel. Compl. ¶ 17. There are no allegations

supporting a meeting of the minds among the defendants to accomplish this tort. These

allegations fail to suggest a plausible claim of civil conspiracy on the part of Shwedel.
 7 The Michigan Supreme Court has never officially recognized a cause of action for IIED,

but has implied that it would do so if presented with the right facts. See Roberts, 422 Mich.

at 611.

14

3. Count Three - Intentional Infliction of Emotional Distress

Garback also asserts a claim against Shwedel for intentional infliction of emotional

distress ("IIED"). To state a claim for IIED, the plaintiff must plead: 1) extreme and

outrageous conduct; 2) intent or recklessness; 3) causation; and 4) severe emotional

distress. Roberts v. Auto-Owners Ins., Co., 422 Mich. 594, 602 (1985).7 Liability attaches

only when a plaintiff can demonstrate that the defendant's conduct is “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 602-03

(quoting Restatement (Second) of Torts, § 46, cmt. d, at 72-73).

 The Court finds that the allegations in the complaint do not state a plausible claim

against Shwedel for IIED. The deficiencies lie primarily with the intent and injury elements

of the tort. Although Garback has alleged the elements of the cause of action, this is not

enough to state a claim. Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice."). Garback's

incorporation of the other allegations in the complaint also do not demonstrate a plausible

claim against Shwedel. The complaint alleges only that Shwedel used the unlawfully

retrieved information to craft negotiating strategies in the divorce. The allegations with

respect to intent are insufficient. A plaintiff may satisfy the intent element of the tort in two

ways: 1) showing that a defendant specifically intended to cause a plaintiff emotional

distress; or 2) showing that defendant's conduct was so reckless that any reasonable

person would know emotional distress would result. Lewis v. LeGrow, 258 Mich. App. 175,

198 (2003). The factual allegations fail to demonstrate intent or recklessness. 
15

Garback has also failed to sufficiently plead the fourth element of the tort: severe

emotional distress. "'The law intervenes only where the distress inflicted is so severe that

no reasonable man could be expected to endure it.'" Roberts, 422 Mich. at 608-09 (quoting

Restatement (Second) of Torts, § 46, cmt. j, at 77)). Anger is insufficient by itself to

demonstrate actionable emotional distress. Id. at 610. Garback alleges in a conclusory

fashion that he "suffer[ed] severe emotional distress." Compl. ¶ 26. But, there are no

factual allegations supporting this conclusion. There are no allegations that Garback

suffered grief, depression, disruption of lifestyle, or that he required treatment for anxiety

or depression. These types of allegations are necessary to state a claim of IIED See id.

at 611. This absence of detail is fatal to his claim of IIED.

4. Count Four - Violation of Michigan Unauthorized Access to Computers Statutes

In Count Four Garback alleges Shwedel violated various sections of the Michigan

code relating to unauthorized access to computers, Mich. Comp. Laws §§ 752.791-797.

Shwedel argues that these statutes are penal in nature and do not provide a private right

of action. The statutory provisions referenced in Garback's complaint fall under Chapter

752 of the Michigan's Compiled Laws entitled "Crimes and Offenses." Garback offers no

authority, and the Court has found none, allowing the Court to permit enforcement of the

criminal statute through a private civil action. In Michigan, the rule is that if a right to relief

is provided by statute, there is no private cause of action for enforcement unless the statute

expressly creates one, or one can be inferred from the fact that the statute provides no

adequate means of enforcement. See Long v. Chelsea Cmty. Hosp., 219 Mich. App. 578,

583 (1996). Neither prong is satisfied here. See Mich. Comp. Laws § 752.797 (discussing

enforcement); cf. Marx v. Centran Corp., 747 F.2d 1536, 1549 (6th Cir. 1984) (“[W]here

there is a ‘bare criminal statute, with absolutely no indication that civil enforcement of any
 8

 Because of the presence of two counts labeled "V," "Count VI" is in fact the seventh

count alleged in the complaint.

16

kind was available to anyone,’ a private cause of action will not be inferred.” quoting Cort

v. Ash, 422 U.S. 66, 80 (1975)). 

Garback did not respond to the motion's attack on this count. For this reason, the

count will be dismissed with prejudice. Garback may not re-plead this count in an amended

complaint.

 5. Count Seven - Punitive Damages8

Garback asserts a claim for punitive damages. "Punitive damages are available in

Michigan only when expressly authorized by the Legislature." Gilbert v. Daimler Chrysler

Corp., 470 Mich. 749, 765 (2004) (emphasis in original). Garback provides no statutory

authority in his complaint or his response brief – indeed, he failed even to address the

motion's challenge of this count – that support the recovery of punitive damages on any of

the claims asserted in the complaint. The claim for punitive damages will be dismissed with

prejudice. Garback may not re-plead this count in an amended complaint.

CONCLUSION

Garback has failed to state a claim against Shwedel. The Court will grant Shwedel's

motion to dismiss. The Court will grant Garback leave to file an amended complaint.

Leave is not granted, however, on the claims for violation of Mich. Comp. Laws § 752.794

and the claim for punitive damages, nor will claims likely survive if asserted against all

defendants in a blanket manner. Failure to address the deficiencies will result in dismissal

of the claims against Shwedel with prejudice.

WHEREFORE it is hereby ORDERED that defendant Shwedel's motion to dismiss the

claims against him (docket no. 5) is GRANTED.
17

IT IS FURTHER ORDERED that Plaintiff shall have 21 days to file an amended

complaint, consistent with Rule 11, that remedies the deficiencies identified above.

SO ORDERED. 

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: September 20, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on September 20, 2010, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager