United States District Court, S.D. Mississippi, Eastern Division
OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court upon its consideration of the Plaintiffs' Response to Order to Show Cause . On December 22, 2014, the Court entered its Opinion and Order  on the Defendant Jason Walters' Motion to Dismiss . The Court found the grounds for dismissal urged by Walters not well taken and denied the motion. The Court also questioned the viability of the Plaintiffs' sole federal cause of action pursuant to its sua sponte review of the claim and the Fifth Circuit's decision in Garcia v. City of Laredo, Texas, 702 F.3d 788 (5th Cir. 2012). The Court thus ordered the Plaintiffs to show cause as to why Garcia does not mandate the dismissal of their allegations that Walters violated the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2712. Having considered the Plaintiffs' Response , the allegations of the Complaint , and the controlling law, the Court finds that the Plaintiffs' SCA cause of action should be dismissed without prejudice and with leave to amend.
The SCA states in pertinent 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 as provided in subsection (b) of this section.
18 U.S.C. § 2701(a). The SCA authorizes criminal punishment and provides for private civil actions for damages. See 18 U.S.C. § 2707. Plaintiffs allege violations of § 2701(a) based on Walters intentionally obtaining private "communications and photographs that were electronically stored on Regina[ Galey's] cellular telephone, SIM [subscriber identity module] card and elsewhere" without her authorization. (Compl.  at ¶ 10.)
The Fifth Circuit considered a similar claim in Garcia. Fannie Garcia alleged that the defendants violated the SCA by accessing without permission text messages and photographs stored on her cell phone. See Garcia, 702 F.3d at 790. The Fifth Circuit affirmed the dismissal of Garcia's claim because "the Stored Communications Act... does not apply to data stored in a personal cell phone." Id. As an initial matter, the Fifth Circuit referenced several authorities militating against Garcia's contention that a computer or mobile device, such as her cell phone, fell within the scope of a statutory "facility":
The court [Eleventh Circuit] found that the SCA clearly applies... to information stored with a phone company, Internet Service Provider (ISP), or electronic bulletin board system, but does not, however, appear to apply to the source's hacking into Steiger's computer to download images and identifying information stored on his hard-drive....
A number of district courts that have considered this question have also concluded that the relevant facilities that the SCA is designed to protect are not computers that enable the use of an electronic communication service, but instead are facilities that are operated by electronic communication service providers and used to store and maintain electronic storage. Recently, the Northern District of California held that a class of iPhone plaintiffs had no claim under the SCA because their iPhones did not constitute facilit[ies] through which an electronic communication service is provided.
Thus these courts agree that a home computer of an end user is not protected by the SCA....
[The SCA] deals only with facilities operated by electronic communications services such as electronic bulletin boards and computer mail facilit[ies], and the risk that communications temporarily stored in these facilities could be accessed by hackers. It makes no mention of individual users' computers.
Id. at 792-93 (citations and internal quotation marks omitted). Even assuming that Garcia's phone could somehow be considered a "facility" under the SCA, she could not meet the "electronic storage" and "electronic communication service" elements of the statute. Id. at 793. Information temporarily stored with a telephone company pending delivery or stored with such a company for backup protection services is statutorily protected, "[b]ut information that an individual stores to his hard drive or cell phone is not in electronic storage under the statute." Id. (citations omitted). A "cell phone does not provide an electronic communication service just because the device enables use of electronic communications services...." Id. Garcia's failure to present evidence of any defendant obtaining information from a cellular company or network, as opposed to her phone, was fatal to her SCA claim. Id.
The Court's sua sponte consideration of the sufficiency of the Plaintiffs' SCA cause of action under Federal Rule of Civil Procedure 12(b)(6) focuses on the factual averments of the Complaint . See Whatley v. Coffin, 496 Fed.Appx. 414, 416 (5th Cir. 2012). Viewed through the prism of Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id .; see also In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir. 2010) ("To be plausible, the complaint's [f]actual allegations must be enough to raise a right to relief above the speculative level.'") (quoting Twombly, 550 U.S. at 555). A complaint containing mere "labels and conclusions, or a formulaic recitation of the elements" is insufficient. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012) (citation and internal quotation marks omitted). ...