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Kirch v. Embarq, 10-2047-JAR (D.kan.; Aug 19, 2011)

Kirch v. Embarq, 10-2047-JAR (D.kan.; Aug 19, 2011)

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Court grants Nebuad-partner ISP's motion for summary judgment on ECPA claim.
Court grants Nebuad-partner ISP's motion for summary judgment on ECPA claim.

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Published by: Venkat Balasubramani on Aug 22, 2011
Copyright:Attribution Non-commercial


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Doc. 60, Ex. 1.
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASKATHLEEN KIRCH and TERRY KIRCH,)individually, and on behalf of themselves )and all others similarly situated,))Plaintiffs,))v.)Case No. 10-2047-JAR)EMBARQ MANAGEMENT CO., a )Delaware Corporation, and UNITED)TELEPHONE COMPANY OF EASTERN )KANSAS, a Delaware Corporation, and)DOE DEFENDANTS 1-5,))Defendants.)
Kathleen and Terry Kirch filed this putative class action against Internet serviceproviders Embarq Management Company and United Telephone Company of Eastern Kansas(collectively, “Embarq”). Plaintiffs allege common law claims for invasion of privacy andtrespass to chattels, as well as claims for violation of the Computer Fraud and Abuse Act(“CFAA”) and the federal Electronic Communications Privacy Act (“ECPA”). All claims relateto Embarq’s collection and diversion of its customers’ Internet communications to a third partyInternet advertising company, NebuAd, Inc. (“NebuAd”), who used the information to target thecustomers with advertising. Per stipulation, plaintiffs agreed to dismiss Counts I, III and IV(invasion of privacy, CFAA and trespass to chattels).
Before the Court are two motions:
The Complaint also names Doe Defendants 1-5, who are identified as
“entities associated with Embarqand/or UTC, possibly with contractual obligations with Defendants, that may require Defendants to provide notice tothe Does of this matter so as to appear and represent their interests. When the identities of any Does who are sued asDoes are identified, Plaintiffs will amend their complaint to name such parties.
Although a plaintiff may generallyplead claims against unknown defendants, he must “provide [] an adequate description of some kind which issufficient to identify the person involved so process eventually can be served.”
Fisher v. Okla. Dep’t of Corr.Unknown State Actor and/or Actors
, 213 F. App’x 704, 708 n.2 (10th Cir. 2007) (quoting
 Roper v. Grayson
, 81 F.3d124, 126 (10th Cir. 1996)). Here, the Complaint does not allege with any specificity which claims involve the Doedefendants or what roles those unknown individuals might have played in this matter, nor have plaintiffs moved toamend the Complaint to name such parties. Because all other claims against Embarq are dismissed below, theCourt dismisses these Doe defendants as well.
Valentine et al. v. NebuAd Inc., et al.
, No. 3:08-cv-05113 (N.D. Cal.).
2plaintiffs’ Motion to Certify Class (Doc. 31) and defendants’ Motion for Summary Judgment(Doc. 59) seeking to dismiss the remaining ECPA claim. Oral argument was held July 15, 2011,at which time the Court took the motions under advisement. After considering the parties’arguments and submissions, the Court is ready to rule. For the reasons set forth in detail below,the Court grants defendants’ Motion for Summary Judgment and denies plaintiffs’ Motion toCertify Class as moot.
I.Procedural Background
In November, 2008, plaintiffs Kathleen and Terry Kirch, as well as others, brought suit inthe Northern District of California against NebuAd, Embarq, and several other Internet serviceproviders (“ISPs”), alleging violations of the ECPA.
Embarq moved to dismiss on multiplegrounds, and the California court dismissed the complaint against Embarq and the other ISPs forlack of personal jurisdiction. Plaintiffs refiled against Embarq in the District of Kansas; otherplaintiffs refiled against other ISPs in Montana, Alabama, Georgia, and Illinois, using commoncounsel in Los Angeles. Plaintiffs continue to pursue their case against NebuAd in California.
II.Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no
Fed. R. Civ. P. 56(a).
Spaulding v. United Transp. Union
, 279 F.3d 901, 904 (10th Cir. 2002).
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc.
, 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing
 Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 670 (10th Cir. 1998)).
144 F.3d at 670 (citing
 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
, 279 F.3d at 904 (citing
Celotex Corp. v. Catrett 
, 477 U.S. 317, 322-23 (1986)).
 Adams v. Am. Guar. & Liab. Ins. Co.
, 233 F.3d 1242, 1246 (10th Cir. 2000) (citing
144 F.3d at671).
, 477 U.S. at 256;
477 U.S. at 324;
279 F.3d at 904 (citing
 Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
477 U.S. at 256;
accord Eck v. Parke, Davis & Co.,
256 F.3d 1013, 1017 (10th Cir. 2001).
3genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.”
 In applying this standard, the court views the evidence and all reasonable inferences therefrom inthe light most favorable to the nonmoving party.
A fact is “material” if, under the applicablesubstantive law, it is “essential to the proper disposition of the claim.”
An issue of fact is“genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolvethe issue either way.”
The moving party initially must show the absence of a genuine issue of material fact andentitlement to judgment as a matter of law.
In attempting to meet this standard, a movant thatdoes not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;rather, the movant need simply point out to the court a lack of evidence for the other party on anessential element of that party’s claim.
Once the movant has met this initial burden, the burden shifts to the nonmoving party to“set forth specific facts showing that there is a genuine issue for trial.”
The nonmoving partymay not simply rest upon its pleadings to satisfy its burden.
Rather, the nonmoving party must

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