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Mousavi v. John Christner Trucking, LLC

United States District Court, N.D. Oklahoma

April 19, 2019

KAZEM MOUSAVI, Plaintiff,
v.
JOHN CHRISTNER TRUCKING, LLC and THREE DIAMOND LEASING, LLC, Defendants.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE.

         Now before the Court is Defendants John Christner Trucking, LLC and Three Diamond Leasing, LLC's Motion to Dismiss and Brief in Support (Dkt. # 9). Defendants argue that plaintiff has failed to state a claim upon which relief can be granted arising out of plaintiff s allegations that defendants invaded his privacy by installing a surveillance device inside the cab of his tractor-trailer. Plaintiff responds that he has adequately alleged claims arising under federal and state law, and he asks the Court to deny defendants' motion to dismiss in its entirety.

         I.

         Kazem Mousavi was hired as a truck driver by John Christner Trucking, LLC (JCT) in October 2012. Dkt. # 2, at 3. Mousavi is an American citizen of Iranian descent, and he states that he is the only driver of Iranian descent who worked for JCT. Id. at 5. JCT offers its drivers a lease purchase program through a related entity, Three Diamond Leasing, LLC. Li at 3. On April 6, 2017, Mousavi was informed by John Mallory, an employee of JCT's safety department, that a new camera was going to be installed in Mousavi's truck. LI Mousavi's truck already had a forward-facing camera that recorded activity outside of the cab of the truck, and he objected to the installation of a new camera if it could record activity inside the truck. Id. He claims that he threatened to quit if he could be videotaped inside the truck or if his conversations could be monitored. Id. Mallory assured Mousavi that the new camera could not be used to conduct surveillance inside the truck and that the new camera would function in the same manner as the previous camera. Id. Mousavi states that he agreed to the installation of a new camera based upon Mallory's representations about how the camera would function. Id. On April 21, 2017, Mousavi spoke to Javada Walker, an employee at JCT's safety department in Sapulpa, Oklahoma, and Walker allegedly said that she had been "watching him in his cab, listening to his phone conversations, and that she 'loved listening to him in his native language.'" Id. at 4. Mousavi came to believe that Walker was frequently observing and listening to him inside his truck, and he states that a device was installed inside his truck by JCT to allow this type of observation of him. Id. He claims that the device did not require a "triggering event" to start recording, and he claims that he was constantly under surveillance while inside his truck. Li Mousavi used his truck's Bluetooth feature to make calls and he believes that all of his phone calls were recorded. Id. Mousavi discussed his concerns with Rick Ates, a dispatcher for JCT, and Ates agreed to speak to Mallory about the recording device inside Mousavi's truck. Id. Mallory allegedly admitted that a recording device had been placed in Mousavi's truck, and Mousavi subsequently asked Mallory to remove the recording device from his truck. Id. at 4-5. Mallory told Mousavi that Mallory's supervisor, Shannon Crowley, wanted the device to remain in Mousavi's truck for another four to six weeks. Id. at 5. Ates was not aware of any other drivers who had similar devices placed inside their trucks, and Mousavi states that he examined several other JCT trucks and did not find a recording device inside the trucks. Id.

         On April 25, 2017, Mousavi returned to his home in California and visited a physician. Li Mousavi claims that he was so upset by the discovery of a recording device in his truck that he suffered severe anxiety, and he advised JCT that he was unfit to drive due to his mental state. Id. JCT informed Mousavi that he needed to resume driving and Mousavi returned to work on April 30, 2017. On May 5, 2017, Mousavi states that he was driving down a narrow road in Missouri, and he drove off a soft shoulder on the road and tipped over his truck. Id. at 6. JCT placed Mousavi on a 30 day suspension and subsequently terminated his employment. Li Mousavi states that JCT maintained an escrow fund to which he contributed and he has not received a final accounting of any funds owed to him from the escrow fund. Ii He also believes that JCT received an insurance payment following the accident and that he may be entitled to a portion of the insurance payment. Id. Mousavi filed this case alleging claims under the Electronic Communications Privacy Act, 18 U.S.C. § 2520 (ECPA), and 42 U.S.C. § 1981 against JCT and Three Diamond Leasing, LLC. He has also alleged state claims of invasion of privacy, negligence, and breach of contract.

         II.

         In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Ii at 562. Although decided within an antitrust context, Twombly "expounded the pleading standard for all civil actions." Ashcroftv.Iqbal, 556 U.S. 662, 683 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to a claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991).

         III.

         Defendants argue that plaintiff has failed to state a claim upon which relief can be granted under the ECPA, § 1981, and Oklahoma tort law, and they ask the Court to dismiss those claims. Defendants request that the Court decline to exercise supplemental jurisdiction over plaintiffs remaining breach of contract claims.

         A.

         Defendants assert that plaintiff has failed to adequately allege that they intentionally intercepted any electronic communication or that he had a reasonable expectation of privacy. Dkt. # 9, at 9-13. Defendants also argue that plaintiff consented to the placement of a camera in the cab of his truck, and plaintiff s allegations that defendants were listening to his communications without his consent are misleading. Id.

         Under 18 U.S.C. § 2520, "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used" in violation of federal criminal law concerning the interception of such communications has a civil remedy for damages and equitable relief. Plaintiff alleges that defendants intentionally intercepted communications from his cellular phone without his consent in violation of 18 U.S.C. § 2511(a), which makes it a crime to intentionally intercept or attempt to intercept any wire, oral, or electronic communication of another person.[1] Dkt. # 2, at 7. It is not unlawful for person to intercept another person's wire, oral, or electronic communications when consent to intercept the communications was given. 18 U.S.C. § 2511(d). Plaintiff bears the burden to establish that defendants committed a violation of the ECPA, but defendants have the burden to show that plaintiff consented to the interception of any communication. In re Pharmatrak, Inc., 329 F.3d 9, 19 (1st Cir. 2003).

         The Court will quickly dispose of two of defendants' arguments. First, defendants argue that plaintiff has not adequately alleged that defendants intentionally intercepted any communications, and they claim that any inadvertent interception of communications is not sufficient to impose liability under § 2520. Dkt. # 9, at 10. Defendants suggest that telephone calls could have accidentally been recorded if plaintiff had his phone calls broadcast through speakers connected to the truck's Bluetooth system. For the purpose of a motion to dismiss, the Court cannot disregard the well-pleaded allegations of the complaint, and plaintiff has alleged that defendants placed a recording device in the cab of his truck. Dkt. # 2, at 3. Plaintiff claims that a JCT employee, Walker, said that she had been watching and listening to his phone conversations and she "loved listening to him in his native language." LI at 4. When plaintiff asked a co-worker to learn more about the recording device in his truck, plaintiff claims that his supervisor became upset that plaintiff had discovered the functionality of the recording device, and plaintiffs allegations support an inference that the supervisor knew that plaintiffs actions and conversations were being recorded. Id. at 4-5. Defendants suggest an alternate possibility as to how plaintiff s phone conversations were overheard, but defendants arguments are more suitable for amotion for summary judgment. At this stage of the case, plaintiff has adequately alleged facts supporting his belief that he was subject to intentional surveillance by defendants. Second, defendants argue that plaintiff consented to the placement of a camera in his truck and he waived the right to complain about the interception of any communications. Plaintiff alleges that he consented to the installation of a new camera after he was expressly told that the camera could not videotape or record inside the cab of his truck, and he alleges that recording device actually did both of those things. Id. at 3. To the extent that plaintiff did provide consent, defendants' actions allegedly exceeded the scope of plaintiff s consent; thus, consent is not a basis to dismiss plaintiffs statutory claim of illegal interception of electronic communications.

         Defendants argue that the cab of plaintiff s truck was merely his workplace and he did not have a reasonable expectation of privacy in any communications that may have been intercepted. Dkt. # 9, at 11-13. The ECPA defines "oral communication" as any "oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication." 18 U.S.C. §2510(2). The Tenth Circuit has determined that "Congress intended this definition to parallel the 'reasonable expectation of privacy test' articulated in l"Katz v. United States, 389 U.S. 347 (1967)]." United States v. Turner, 209 F.3d 1198, 1200 (10th Cir. 2000). To determine whether plaintiff had a reasonable expectation of privacy, the Court must consider (1) "whether the [plaintiff] manifested a subjective ...


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