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Abordo v. Mobi PCS

United States District Court, D. Hawaii

February 25, 2016

EDMUND M. ABORDO, Plaintiff,


Alan C. Kay Sr. United States District Judge

For the reasons set forth below, the Court DENIES Plaintiff’s Motion for Judgment on the Pleadings Pursuant to Federal Rule of Civil Procedure 12(c), ECF No. 15, DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 11, and GRANTS Defendants’ Counter Motion for Summary Judgment, ECF No. 20.


On July 24, 2015, Plaintiff Edmund M. Abordo (“Abordo” or “Plaintiff”) filed a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 against Defendants Mobi PCS, [1] Mark Montgomery, Juli Price, and Bill Jarvis (collectively, “Defendants”). 42 U.S.C. § 1983 Civil Rights Compl. (“Complaint”), ECF No. 1. In his Complaint, Abordo alleges violations by Defendants of the United States Constitution and both federal and state laws as a result of Defendants’ interception of Abordo’s emails and text messages without a warrant or Abordo’s consent. Id. at 1, 5-6. Defendants filed an Answer to the Complaint on August 14, 2015. Defs.’ Answer to Compl. Filed on July 24, 2015 (“Answer”), ECF No. 7.

On October 14, 2015, Abordo filed a Motion for Summary Judgment as to his claims of violation of his civil rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution.[2] Pl.’s Mot. for Summ. J. Ex. “A” (“Pl.’s MSJ”) at 1, ECF No. 11. On October 20, 2015, Abordo also filed a Motion for Judgment on the Pleadings, claiming that Defendants had violated his civil rights by intercepting his emails and text messages without his consent or a warrant. Pl.’s Mot. for J. on the Pleadings Pursuant to Fed.R.Civ.P. 12 (c) (“Pl.’s 12(c) Motion”) at 1, 3, ECF No. 15.

On January 7, 2016, Defendants filed an Opposition to Plaintiff’s Motion for Judgment on the Pleadings, claiming that Abordo had failed to establish any material facts indicating that Defendants should be held liable under a § 1983 claim. Defs.’ Mem. in Opp. to Pl.’s 12(c) Motion Filed on Oct. 20, 2015 (“Defs.’ Opp.”) at 2, ECF No. 19. That same day, Defendants also filed a Counter Motion for Summary Judgment, ECF No. 20, a Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment and in Support of Defendants’ Counter Motion (“Defs.’ MSJ”), ECF No. 20-1, and a Concise Statement of Facts in support thereof (“Defs.’ CSF”), ECF No. 21. Again, Defendants argued that the Court should deny Abordo’s Motion for Summary Judgment, given his alleged failure to properly state a § 1983 claim. Defs.’ MSJ at 2. For the same reason, Defendants claimed that summary judgment in favor of Defendants was proper. Id. at 2, 18.

Abordo did not file an Opposition to Defendants’ Counter Motion for Summary Judgment, nor did he file a Reply in support of his Motion for Judgment on the Pleadings or his Motion for Summary Judgment.

The Court held a hearing regarding the instant motions and the motions in a related case on February 22, 2016.[3]


This case involves the issuance by the Hawaii Department of Commerce and Consumer Affairs Office of Consumer Protection (“OCP”) of subpoenas to Coral Wireless, LCC (“Coral”), requesting the phone records and subscriber information of a cell phone belonging to non-party Deborah Ann Hokulani Joshua. Id. at 3. Between May and October 2014, the OCP issued to Coral four subpoenas seeking all phone records for the cell phone for the period from January 1, 2013 through May 29, 2014, and from September 1, 2014 through October 8, 2014. Decl. of Mark Montgomery ¶¶ 3-7, ECF No. 21-3. A fifth subpoena requested subscriber information for the cell phone. Id. ¶ 8.

The OCP used the information it obtained from Coral in a civil court proceeding against Joshua. Complaint at 4. The messages allegedly contained privileged communications between Joshua and Plaintiff Abordo, who acted as her paralegal. Complaint at 6.

Defendants Mark Montgomery, William Jarvis, and Juli Price are employees of Coral, which does business in Hawaii as Mobi PCS. Defs.’ CSF ¶¶ 2, 4. During the relevant time period, Defendant Montgomery was a Senior Customer Care Technical Support Representative at Coral. Decl. of Mark Montgomery ¶ 2. Jarvis is Coral’s President and CEO, and Price is Jarvis’ Executive Assistant. Decl. of Bill Jarvis ¶ 2; Decl. of Juli Price ¶ 2, ECF No. 21-4.

Prior to May 27, 2014, when Coral was served with the initial subpoena, no Defendant had any interaction with the OCP regarding the matters encompassed by the subpoenas. Defs.’ CSF ¶ 5. Montgomery alone responded to the subpoena requests on behalf of Coral. Id. ¶ 6. He interacted only with Amelia Partlow of the OCP, and only through email communications and three in-person meetings lasting less than five minutes each in order to sign written declarations regarding the subpoenas. Id. ¶¶ 6, 11.

Neither Defendant Jarvis nor Defendant Price had any contact with anyone at the OCP regarding the subpoenas or related matters. Id. ¶¶ 7, 8. Additionally, neither Jarvis nor Price was aware of the subpoenas until after Coral had received and responded to them. Decl. of Bill Jarvis ¶ 5; Decl. of Juli Price ¶¶ 3-4. Price became aware of the subpoenas for the first time when Plaintiff Abordo and Joshua visited Coral’s offices on or around January 9, 2015 to resolve the instant matter. Decl. of Juli Price ¶ 3; Complaint at 4.


I. Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed - but early enough not to delay trial -a party may move for judgment on the pleadings.” Judgment on the pleadings is properly granted “when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation and original alteration omitted).

Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy. Id. The Court must therefore assess whether the complaint “contain[s] 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Harris v. Cty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012) (Iqbal applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are functionally equivalent).

Judgment on the pleadings under Rule 12(c) is limited to material included in the pleadings, unless the Court elects to convert the motion into one for summary judgment. Yakima Valley Mem’l Hosp. v. Dep’t of Health, 654 F.3d 919, 925 n.6 (9th Cir. 2011). Rule 12(d) gives the Court “discretion to accept and consider extrinsic materials offered in connection with these motions, and to convert the motion to one for summary judgment when a party has notice that the district court may look beyond the pleadings.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1207 (9th Cir. 2007).

The Court must accept as true the facts as pleaded by the nonmovant, and will construe the pleadings in the light most favorable to the nonmoving party. U.S. ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1053 (9th Cir. 2011); Doyle v. Raley’s Inc., 158 F.3d 1012, 1014 (9th Cir. 1998). Additionally, mere conclusory statements in a complaint or “formulaic recitation[s] of the elements of a cause of action” are not sufficient. Twombly, 550 U.S. at 555. Thus, the Court discounts conclusory statements, which are not entitled to a presumption of truth, before determining whether a claim is plausible. Iqbal, 556 U.S. at 678. However, ‚Äúdismissal with prejudice and ...

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