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Lonnie E. Larson v. Liberty Mutual Fire Insurance Company; and Tom Petrus & Miller

January 10, 2012

LONNIE E. LARSON,
PLAINTIFF,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY; AND TOM PETRUS & MILLER, LLC, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

AMENDED VERIFIED COMPLAINT ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE FIRST AMENDED VERIFIED COMPLAINT

I. INTRODUCTION.

Plaintiff Lonnie E. Larson claims to have been hit by lightning on February 26, 2002. See First Amended Verified Complaint ¶ 6, Aug. 31, 2011, ECF No. 21. At that time, Larson says, he was working for Altres Staffing Inc., which was providing construction labor to JAS Glover. Id. Larson sought worker's compensation insurance benefits from Altres's carrier, Defendant Liberty Mutual Fire Insurance Company. Id. Liberty Mutual appears to have been concerned about potential insurance fraud and hired a private investigator to conduct surveillance of Larson. Id. ¶ 11. Liberty Mutual denied Larson's worker's compensation claim on July 7, 2002. Id. ¶ 16. In the aftermath of that denial, on April 26, 2011, Larson filed the present lawsuit against Liberty Mutual and its former counsel, the law firm of Tom Petrus & Miller LLC, complaining that they had obtained computer records relating to him without authorization. See Verified Complaint, April 26, 2011, ECF No. 1. Defendants now move to dismiss Larson's First Amended Verified Complaint pursuant to Rule 12(b)(6). The court grants the motion.

II. FACTUAL BACKGROUND.

On or about November 10, 2002, Frank Stephenson, of Hyperion International Technologies, LLC, which says it was Larson's former employer, sent a facsimile letter to Theresa Boller, a claims adjuster for Liberty Mutual, and indicated that, from September 25, 2002, to November 5, 2002, Larson had worked for Hyperion in Arizona. First Amended Verified Complaint Ex. 1. The letter stated:

Your customer service was contacted last Tuesday (November 5, 2002) by telephone . . . and a report was made regarding a possible insurance fraud. . . . Since that report was made, I have discovered other pertinent information . . . and, since I have not heard anything further on this matter, I thought it best to send this letter via fax notifying you of the report and a few other details that are not in the report.

The person filing this claim, Lonnie Larson, spent over a month in our offices (Hyperion International) in Tempe, AZ working on a project. . . . He arrived at Phoenix's Sky Harbor Airport on September 25th for Hawaii on November 5th and departed . During that time, he walked from his apartment to our office (0.3 miles one way) four times a day. On weekends, he walked to and from shopping areas that vary in total round trip distances of between 3 and 6 miles. He also assembled various components of equipment, lifted relatively heavy solar panels, sketched out diagrams, typed various letters and emails; for all intents and purposes, appeared to be a healthy, active man.

While none of us dispute that Mr. Larson may have been struck by lightning on February 26, 2002, as he contends, the after effects, both physical and psychological, appear to be whatever he chooses them to be, and bother him whenever he thinks it is appropriate for his audiences. For example, until the morning of his departure for Hawaii, he was as I have described in the previous paragraph. However, for some strange reason, he required a wheelchair to get from airport curbside to the gate.

The report I have referenced above contains the names of five other people in our offices who witnessed this behavior by Mr. Larson. They may, or may not be willing to testify to those facts, that is completely up to them. I, for one, believe Mr. Larson is trying to pull off a scam.

Facsimile Letter dated Nov. 10, 2002, from Frank Stephenson to Theresa Boller, attached to First Amended Verified Complaint as Exhibit 1, ECF No. 21-1.

Larson claims that on November 22, 2002, "Karen," a Liberty Mutual employee, called Stephenson and requested personal and private communications about Larson that Stephenson had mentioned to her.*fn1 First Amended Verified Complaint ¶ 19. Larson claims that Stephenson faxed her the requested information on November 26, 2002. Id. He also alleges that Stephenson later sent her Larson's "personal and private communications," such as Larson's medical records, emails, letters, and payroll records. Id. Larson attaches to his First Amended Verified Complaint a cover sheet for transmissions on November 26, 2002, which states: "Dear Karen. More stuff. I have a document approximately 40 pages in length that amounts to a daily diary Lonnie kept to record his 'symptoms' -- let me know if you need a copy." First Amended Verified Complaint Ex. 3, ECF No. 21-3. Larson alleges that Stephenson and/or Hyperion accessed and intercepted his emails. First Amended Verified Complaint ¶ 21.

Larson says that he did not consent to Hyperion's obtaining of his private information and that he "had no notice Hyperion would access his personal computers and/or Internet email servers to retrieve, intercept, use or disclose his confidential information." Id. ¶¶ 26-27. Larson alleges that "Stephenson acted as Liberty Mutual's agent in the acquisition, use and disclosure of . . . Larson's personal and private communications." First Amended Verified Complaint ¶ 22. Larson also alleges that Stephenson and/or Hyperion "conspired" with Liberty Mutual to acquire Larson's private and personal communications. Id. ¶ 24.

Larson says that Liberty Mutual gave his private information to its counsel, Defendant Tom Petrus & Miller, LLC, "during the course of litigation in civil action number 09-308." Id. ¶ 28. Tom Petrus & Miller allegedly disclosed this information to "its partners, associates, officers and/or employees . . . knowing or having reason to know that" the information was acquired illegally. Id. ¶ 31.

By allegedly accessing Larson's computer, Hyperion and Liberty Mutual are alleged to have caused Larson more than $5,000 in monetary loss in a one-year period, including the loss of worker's compensation payments*fn2 and his failure to recover damages in Civil Number 09-00308 SOM/BMK. Id. ¶ 30.

Larson initiated this lawsuit on April 26, 2011. See Verified Complaint. On August 11, 2011, this court dismissed Larson's Verified Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and gave Larson leave to file an amended complaint. Order Granting Defs' Mot. to Dismiss Verified Complaint, Aug. 11, 2011, ECF No. 17 ("Order Dismissing Verified Complaint"). Larson filed his First Amended Verified Complaint on August 31, 2011. Defendants now move to dismiss that complaint pursuant to Rule 12(b)(6).

Larson did not timely file an opposition. On December 30, 2011, he moved for an extension of time to file an opposition, which this court denied. ECF No. 35. On January 6, 2012, Larson sought to continue the hearing on this motion, scheduled for January 9, 2012, on the ground that his medications or health would hinder his ability to participate. ECF No. 36. That same day, Larson again moved for an extension of time to file an opposition. He also filed an opposition. Even though it was not mentioned in his motion regarding his opposition memorandum, Larson may now be claiming that his disability impaired his ability to prepare an opposition. While he does not even allege that this was so for the entire three months since Liberty Mutual filed its motion to dismiss, the court now grants his request to file a late opposition memorandum.

III. MOTION TO DISMISS STANDARD.

When reviewing motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, courts may "consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A document with contents that are alleged in a complaint may also be considered in ruling on a Rule 12(b)(6) motion to dismiss, if no party questions its authenticity. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Additionally, the court need not accept as true allegations that contradict ...


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