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At a Glance:
Title:
Borninski v. Williamson
Date:
May 17, 2005
Citation:
3:02CV1014–L
Status:
Unpublished Opinion

Borninski v. Williamson

United States District Court,

N.D. Texas, Dallas Division.

Jack BORNINSKI, Plaintiff,

v.

Boyd WILLIAMSON, et al., Defendants.

No. Civ.A.3:02CV1014–L.

|

May 17, 2005.

Attorneys & Firms

Jack W. Borninski, Wilmer, TX, pro se.

Michael A. McCabe, Jonathan C. Wilson, Haynes & Boone, Gerald V. Bright, David L. Craft, Walker Bright & Lewis, Stephen L. Baskind, Kleiman Lawrence Baskind & Fitzgerald, Dallas, TX, for Defendants.

Travis Vanderpool, Dallas, TX, pro se.

ORDER

LINDSAY, J.

*1 Before the court is Defendants’ Motion for Summary Judgment (Defendants L–3 Communications, Boyd Williamson, and James Springer, collectively “L–3 Defendants”), filed April 22, 2004. After careful consideration of the motion, responses, replies, record, appendices, and applicable law, the court grants L–3 Defendants’ Motion for Summary Judgment as to all federal law claims and dismisses without prejudice all of Plaintiff’s state law claims.

I. Procedural and Factual Background

Jack Borninski (“Plaintiff” or “Borninski”) filed this action on May 13, 2002 against Defendants Hughes/Kinecta Federal Credit Union (“Kinecta”); the City of Grand Prairie (“city” or “Grand Prairie”), Grand Prairie Police Officer S.B. Spicer—No. 267 (“Spicer”), Grand Prairie Police Officer Steelman—No. 266 (“Steelman”) (collectively, “Grand Prairie Defendants”); L–3 Communications (“L–3” or “company”), James Springer (“Springer”), and Boyd Williamson (“Williamson”).1 On December 9, 2002, Borninski filed Plaintiff’s Amended Civil Complaint and Jury Demand (“amended complaint”). In his amended complaint, Plaintiff asserted eleven different claims against various Defendants, including ten claims against L–3 Defendants.2 On January 26, 2004, the court dismissed six of the ten claims against L–3 Defendants. Accordingly, the claims remaining against Williamson, Springer, and L–3 are those set forth in Counts III, IV, V, and XI of Borninski’s Amended Complaint. The claims against Kinecta3 and Grand Prairie Defendants4 are addressed by separate order.

Borninski contends that: (1) L–3 Defendants intercepted his e-mails and invaded his private e-mail account and are liable under the Communications Act and the Texas Wiretap Statute; (2) L–3 Defendants disclosed private facts about him to the general public, gathered information through eavesdropping, published information about him in a false light, assaulted him, and are therefore liable under common law for invasion of privacy; (3) Williamson and Springer assaulted and battered him on May 25, 2000 at the L–3 Grand Prairie facilities (“Grand Prairie Facilities”) as he was heading down the staircase towards the building exit, and are liable for common law assault, thereby making L–3 vicariously liable for the same; and (4) Williamson and Springer falsely arrested and imprisoned him when they prevented him from leaving the Grand Prairie Facilities and are liable for common law false imprisonment, making L–3 vicariously liable for the same.

L–3 Defendants contend that all of Borninski’s claims fail as a matter of law. With respect to Borninski’s first two claims, interception of e-mail under federal and state law, L–3 contends that Borninski’s claims of unauthorized interception, publication, and use of electronic communications fail as a matter of law because (1) the federal statute he relies on does not support an actionable claim, as the Communications Act does not regulate e-mail communications; (2) even if Borninski had asserted a claim under Chapter 119 of the Electronic Communications Privacy Act (“Electronic Communications Privacy Act” or “ECPA”) (codified as amended at 18 U.S.C. §§ 2510—2521 (Title I) and 18 U.S.C. §§ 2701—2711 (Title II)), the accessing of his e-mail would be lawful; (3) Borninski does not have a claim under the Texas Wiretap Statute, as it covers only “aural communications” and e-mail does not qualify as “aural communication” under the statute; (4) L–3 controlled access to e-mail, and there was no reasonable expectation of privacy; and (5) Borninski admits in his deposition that he has no evidence that anyone from L–3 intercepted his personal e-mails.

*2 Regarding Borninski’s third claim, invasion of privacy, L–3 contends that its fails as a matter of law because (1) an employee cannot have a reasonable expectation of privacy concerning communications made in the workplace; (2) there is no evidence that L–3 “eavesdropped” on Borninski’s phone calls or “wiretapped” his communications; (3) Plaintiff does not allege facts creating a claim for invasion of privacy; and (4) Texas does not recognize a claim for “false light invasion of privacy.”

With respect to Borninski’s fourth and fifth claims, L–3 contends that (1) Borninski’s tort claims against L–3, including assault, battery, and false imprisonment, are barred as a matter of law by the Texas Workers’ Compensation Act, and (2) Williamson and Springer were justified in using reasonable force against Borninski under Texas law to protect L–3’s proprietary documents.

On April 22, 2004, L–3 Defendants filed their Motion for Summary Judgment (“motion”). Borninski moved for an extension of time to respond to L–3 Defendants’ Motion for Summary Judgment (“Motion for Extension of Time to Respond”) on April 26, 2004, to which L–3 Defendants filed Defendants’ Response Opposing Plaintiff’s Motion for an Extension of Time to Respond to the L–3Com Defendants’ Motion for Summary Judgment on April 29, 2004; Borninski filed his reply, Plaintiff’s Reply to the L–3 Com Defendants’ Response to: Plaintiff’s Motion for an Extension of Time to Respond to the L–3Com Defendants’ Motion for Summary Judgment, on May 10, 2004. Borninski then filed a partial response, Part One of Plaintiff’s Response to: L–3 Communication Defendants’ Motion for Summary Judgment to L–3 Defendants’ Motion for Summary Judgment (“First Response”), on May 17, 2004. L–3 Defendants filed their reply, Defendants’ Reply to Plaintiff’s Response to Defendants’ Motion for Summary Judgment to Plaintiff’s Partial Response to L–3 Defendants’ Motion for Summary Judgment (“First Reply”), on May 21, 2004. On July 27, 2004, the court granted5 Borninski’s motion for extension of time to respond to the motion for summary judgment, allowing Borninski to file another response, Plaintiff’s Response to: L–3 Communication Defendants’ Motion for Summary Judgment (“Second Response”), on August 25, 2004, to which L–3 Defendants filed an additional reply, Defendants’ Reply and Brief to Plaintiff’s Response in Opposition to Defendants’ Motion for Summary Judgment (“Second Reply”), on September 10, 2004. The court now sets forth the undisputed facts on which it relies to resolve the motion.6 In setting forth the facts, the court applies the summary judgment standard as set forth in section II, infra.

Raytheon, L–3’s predecessor,7 hired Borninski on October 25, 1999, as a software engineer. L–3 builds and maintains military aircraft simulators. L–3 contracts with the federal government and branches of the United States military to design flight simulators for military aircraft. To build the simulators, L–3 receives classified and protected information depicting certain aircrafts’ capabilities, weapons, and limitations from the federal government, branches of the military, and the Department of Defense (“DOD”).

*3 As a condition of contracting with the government, L–3 must comport with the Department of Defense National Industrial Security Program Operating Manual (“NISPOM”). NISPOM sets forth the manner in which L–3 must control, hold, disclose, or destroy information obtained in the development of flight simulators.

Pursuant to NISPOM and L–3’s contract8 with the DOD, all employees who work on the F–16 UTD project require a Secret or an Interim Secret security clearance (“security clearance”). Security clearances are regulated, issued, and rescinded by the DOD and Defense Security Services (“DSS”). To obtain security clearance, employees must undergo criminal, education, and employer background checks. Furthermore, they are required to submit a Standard Form 86 (“SF–86”) to the United States Office of Personnel Management and the DSS. The SF–86 requires each security clearance applicant to identify his or her contacts and relationships with all foreign nationals or citizens.

When he applied for his job, Borninski signed the company’s employment application and authorized L–3’s predecessor to investigate his background and obtain information concerning his abilities and desirability as a prospective employee. Upon commencement of his employment, Borninski also signed Raytheon’s “Application for Internet Access.” The company’s Internet policy states:

On-line Internet access is provided for business use only by certain employees of Raytheon Company, its divisions and subsidiaries. Raytheon logs and archives all incoming and outgoing data communications through its gateway systems. Use of the gateway implies consent to such monitoring. Improper use of the Internet may result in disciplinary action including termination of employment.

Communications over the Internet (including World Wide Web, FTB, TELNET, Internet mail and related services) should be considered generally insecure, and can be observed by a third party while connections and data transmissions are in progress.

Defs.’ App. at 136. Borninski worked on the F–16 UTD’s mapping system and also participated in work related to the simulator’s smart weapons pre-launch system. Because Borninski worked on classified projects, he was required by the federal government to undergo background checks and submit a completed SF–86 to the DSS to obtain a security clearance.9

To facilitate the federally mandated background investigation process, on November 24, 1999, Borninski signed an Authorization for Release of Information which authorized the release of his criminal, credit, education, and employment histories from third-parties. Defs.’ App. at 195. Borninski agreed to permit the company’s investigators “to obtain any information relating to [his background] activities.” Id. Further, Borninski authorized that his background information be released to third-parties, including “the Federal Bureau of Investigation, the Department of Defense, and the Defense Investigative Service....” Id.

*4 John Pentony (“Pentony”), one of L–3’s security agents, requested Borninski’s background from former employers and educators, including Southern Methodist University (“SMU”), which Borninski’s employment application states that he attended between January and May 1997. In response, the SMU police forwarded Pentony an incident report involving Borninski. On August 18, 1999, more than a year after Borninski finished classes at SMU (as indicated on his employment application), Borninski was using SMU’s computers in one of its computer laboratories. The SMU Police report states that Borninski represented to SMU police that he was a student and produced an expired student identification card. The report states further that SMU police issued a criminal trespass warning to Borninski and escorted him from the school’s property. Defs.’ App. at 202.

Pentony included SMU’s Criminal Trespass Warning in Borninski’s security clearance application and informed L–3’s Facility Security Officer, Williamson, of the incident. Pursuant to NISPOM and L–3’s contract with DOD, Williamson was required to report whether Borninski’s local background check produced unfavorable results. In his report, Williamson wrote that Borninski had misrepresented himself to the SMU police and was issued a criminal trespass warning for his unauthorized access to the SMU computer laboratories.

The SF–86 required Borninski to identify the citizenship of all his “relatives and associates.” The SF–86 states “1) Include only foreign national relatives not listed in 1–16 with whom you or your spouse are bound by affection, obligation or close and continuing contact. 2) Include only foreign national associates with whom you or your spouse are bound by affection, obligation or close and continuing contact.” Defs.’ App. at 101. In response to the relevant questions on foreign associates, Borninski listed his immediate family members as people he associated with from foreign countries. Borninski did not list any foreign national on his SF–86, except those in his immediate family. Borninski signed the SF–86, which contained the following: “My statements on this form, and any attachments to it, are true, complete, and correct to the best of my knowledge and belief and are made in good faith. I understand that a knowing and willful false statement on this form can be punished by a fine, imprisonment, or both.” Defs.’ App. at 133.

On March 15, 2000, the DOD issued Borninski’s Interim Security clearance. On March 22, 2000, Pentony conducted a mandatory Interim Secret security briefing and presentation for Borninski and several other employees. During the briefing, Pentony again informed all the participants, including Borninski, that they could not have any contact with foreign nationals without revealing the relationships to L–3 and the DSS. Pentony also showed slides which stated that employees must report all “foreign interests or activities” and “foreign contacts.” Borninski told Pentony that he had contact with foreign nationals and that he had reported them to the DSS on his SF–86.

*5 L–3 assigned Borninski to work with Project Engineering Manager Karrie McNamara (“McNamara”) on the F–16 UTD project, a classified project. Defs.’ App. at 9, 140–41. Because Borninski’s job permitted him access to classified information, he was required to sign the United States Classified Information Nondisclosure Agreement (“Nondisclosure Agreement”). In the Nondisclosure Agreement, Borninski expressly agreed that “all classified information to which [he had] access ... is now and will remain the property of, or under the control of the United States Government....” He further agreed that he would, “return all classified material which have, or may come into, [his] possession or for which [he is] responsible because of such access: (a) upon demand by an authorized representative of the United States Government ...; or (c) upon conclusion of my employment or other relationship that requires access to classified information.” Defs.’ App. at 189, 147.

At least one of Borninski’s co-workers at L–3 began reporting to security personnel that Borninski was engaging in unusual conduct. Defs.’ App. at 148 ¶ 16. Security personnel also stated that Borninski parked his van behind the company’s building and ran an extension cord to the vehicle for power and sometimes slept in his van at night on the company’s premises. Id. Co-workers informed Pentony and Williamson that Borninski would work during the night by himself and make numerous copies of documents while few people were around. Id.

Richard Van Orsdale (“Van Orsdale”), one of Borninski’s fellow engineers, reported to Pentony that Borninski repeatedly asked him to work on projects outside their normal assignments using information related to the simulator project. Defs.’ App. at 198. Further, Van Orsdale states that Borninski insisted on standing next to him while he opened the combination lock on a secure room. Id.

Williamson, as the Facility Security Officer, was responsible for the company’s overall security and implementation of NISPOM, and became concerned over reports of Borninski’s conduct. As a result of the reports and pursuant to his duties as the Facility Security Officer, Williamson opened an investigation to determine if Borninski was in breach of L–3’s security protocol or policies. Defs.’ App. at 149 ¶ 18.

Pursuant to the company’s Application for Internet Access policy, Williamson and Springer, instructed Mike Windham (“Windham”), an independent contractor and consultant to L–3, to copy the contents of the company-issued computer hard drive used by Borninski at work to the company’s network. Defs.’ App. at 162–63 ¶ 4. Windham remotely logged onto Borninski’s workplace computer via L–3’s network, which physically linked all employee computers to a central server. Defs.’ App. at 162–63 ¶¶ 4–6. Windham used a network administrator password, which allowed him to access Borninski’s hard drive remotely, view the hard drive’s contents, and copy it. Id. The files that Windam copied to the network were all from Borninski’s hard drive, and included material from the C-drive, temporary files, and files that were automatically saved and recovered from word processing programs such as Microsoft Word and Word Perfect. Id. Windham did not access Borninski’s Internet based e-mail account while copying the contents of Borninski’s hard drive to L–3’s network. Defs.’ App. at 163–64 ¶ 9.

*6 One of the documents Windham copied to L–3’s network from Borninski’s hard drive was a letter written partly in English and partly in Polish, purportedly by Calka, a resident of Warsaw, Poland. Defs.’ App. at 163. The letter, dated April 15, 2000, indicated that Borninski and Calka had been in contact on at least a few occasions and described their tentative plans to meet in the United States and travel together. Defs.’ App. at 167. Borninski had not disclosed Calka, a foreign national, on either his SF–86 or to anyone at L–3. Defs.’ App. at 166.

On May 25, 2000, Scott Emry (“Emry”), one of Borninski’s supervisors, drove Borninski from L–3’s engineering facility in Grand Prairie to the company’s administrative offices in Arlington. L–3’s Human Resources Representative and Williamson informed Borninski that his Interim Secret security clearance was suspended while the company investigated his unreported contact with foreign nationals; that his employment was suspended while the company investigated his unreported contact with foreign nationals; and that his employment was suspended with pay until the conclusion of the investigation. Williamson further explained that Borninski had to leave the premises that day, but would be allowed to take his personal belongings with him after they were inspected for company documents and protected information.

Borninski and Emry returned to the company’s engineering facility in Grand Prairie, where Borninski’s cubicle was located. Williamson met them in the lobby, and the three proceeded upstairs to Borninski’s work area, located on the second floor of the building. Williamson and Emry watched Borninski gather his personal belongings and numerous documents into a briefcase. Although not positive, Williamson believed that many of the documents that Borninski had placed in the briefcase were documents pertaining to projects at L–3.

Once Borninski left his cubicle, Williamson again informed Borninski that his belongings would need to be inspected before he left the facility and directed him to a room located on the same floor as Borninski’s cubicle. Defs.’ App. at 150 ¶ 22. Borninski started down the staircase that led to the facility’s exit on the first floor. Id. Williamson ran to catch up to Borninski to prevent him from leaving the building with what Williamson believed to be company property; Borninski continued down the stairs, and he and Williamson came into physical contact with each other. Id. According to Borninski, Williamson assaulted him. Williamson, however, states that at no time did he use his hands or arms to assault Borninski. Defs.’ App. at 151 ¶ 25. At the summary judgment stage, the court must resolve all disputed facts in favor of the nonmovant. As Borninski is the nonmovant, the court accepts his version of the facts.

At the bottom of the stairs, Springer and another security specialist, Keith Early, approached Borninski and asked him if there was a problem. Pl.’s App. at 52. According to Borninski, Springer moved his body to block Borninski from getting off the staircase that led to the lobby and the exit door. Id. Borninski states that he tried to maneuver around Springer and contact was made with Springer’s chest and shoulder. Id. Upon reaching the lobby, both Borninski and Randy Sellers, a security guard stationed at the desk in the lobby of the Grand Prairie building, called the police. Springer and Williamson stood near the exit door as they waited for the police to arrive. Pl.’s App. at 53 ¶ 14.

*7 When Officers Steelman and Spicer of the Grand Prairie Police Department arrived, the parties proceeded to a private conference room. The police officers asked Borninski to display the contents of his briefcase. Defs.’ App. at 152 ¶ 28. According to the Grand Prairie Police Department Offense/Incident Report, Borninski had in his possession “multiple company documents as well as a couple of floppy disks also containing company work product.” Defs.’ App. at 178. After suspending Borninski’s employment and Interim Secret security clearance, L–3’s security personnel made signs which included pictures of Borninski and his van. The signs included Borninski’s date of birth, social security number, other names, and country of birth. L–3 posted the signs at the security stations of the company’s facilities in Arlington and Grand Prairie, where Borninski had worked, and, according to L–3, in a manner that only the security guards at each entrance could see them. Borninski, however, states that the signs were visible to the general public. As Borninski is the nonmovant, the court accepts his verison of the facts as to the visibility of the signs. The signs stated that Borninski’s employment had been suspended and that he was not permitted on company premises.

On May 30, 2000, after his employment with L–3 had been suspended, Borninski wrote a letter to Williamson and identified numerous foreign nationals with whom he had been in contact “in the [l]ast [f]ew [m]onths[.]” Defs.’ App. at 123 (emphasis omitted). In the letter, Borninski notified Williamson that he was in communication with individuals from Britain, Turkey, Bulgaria, Mexico, India, Pakistan, and Poland. Defs.’ App. at 124–25. In his deposition, Borninski indicated that he had placed a personal advertisement on the Internet seeking female companionship, received responses over the Internet from individuals throughout the world, and had been in contact with some foreign nationals in reference to his personal advertisement. Defs.’ App. at 23–24. He identified these contacts in his May 30, 2000 letter. Id. Borninski would periodically check his personal Hotmail account from work to access his personal advertisement. Defs.’ App. at 32–33. In addition, Borninski had made acquaintance with a woman in Poland named Jolanta Calka (“Calka”) and was planning to meet with Calka and vacation with her in the United States. Defs.’ App. at 45–47, 137–38. Prior to May 30, 2000, L–3 was not aware of Borninski’s relationship with Calka.

On June 2, 2000, DSS withdrew Borninski’s Interim Secret security clearance. That same month, L–3 conducted a reduction-in-force. Borninski and approximately twenty other Senior System Engineers were selected for layoff. Borninski’s employment with the company was terminated, effective June 30, 2000.

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make credibility determinations or weigh the evidence” in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 254–55.

*8 Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322–23.

III. Analysis10

A. Borninski’s Claim for Unlawful Interception of His Electronic Communications

Borninski contends in Count III of his Amended Complaint that L–3 is liable under 47 U.S.C. § 605 (“Communications Act”) for violating his “right to communications privacy.” The court now addresses the claims raised by Plaintiff with respect to federal law.

1. Borninski’s Claim Under the Communications Act

Borninski contends, in his Brief in Support of Response to L–3 Defendants Motion for Summary Judgment, that (1) his e-mail that L–3 intercepted resided on the Hotmail e-mail server and not L–3’s e-mail server; and (2) L–3 did not just view his e-mail, it stole several of his e-mails. L–3 contends that Borninski’s claim of unlawful interception of his electronic communications fails as a matter of law because the Communications Act does not regulate wire communications like e-mails, and therefore the statute does not apply. The court agrees.

In 1968, Congress modified the Communications Act, transferring the regulation of interception of wire or oral communications to the new Chapter 119 of Title 18 of the United States Code. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News 2112, 2196–97; see also Edwards v. State Farm Ins. Co., 833 F.2d 535, 538 (5th Cir.1987) (noting that, in light of amendments passed by Congress to the Electronic Communications Privacy Act, or ECPA, interception of wire communications is no longer governed by the Communications Act). Since the Communications Act is not applicable to wire communications, there is no basis for Borninski to recover under it. Accordingly, there is no genuine issue of material fact regarding this claim, and L–3 Defendants are entitled to a judgment as a matter of law.

*9 Alternatively, even if the Communications Act were to apply, Borninski’s claim nevertheless fails for a number of reasons. First, he does not provide competent summary judgment evidence for each of the elements necessary to establish his claim. For example, Plaintiff alleges and argues that:

All plaintiff’s e-mails have been intentionally intercepted by L–3 com while in transit. Plaintiff never received the Calka letter through his Hotmail e-mail, but this letter turned up in several computer-annotated forms among the L3com documents provided to plaintiff in discovery [intercept affidavit]. Clearly, the only way L3com could have come to possess the Calka letter is via the illegal intercept from plaintiff’s Hotmail. Additionally, plaintiff never received the e-mails concerning his mother’s health sent by his sister to the same plaintiff’s Hotmail account [id].

Pl.’s Br. in Supp. of His Resp. to: L–3 Communication Defs.’ Mot. for Summ. J. at 19. Borninski suggests a theory of illegal interception and contends that (1) third-parties assert that they sent e-mails to him; (2) he never received those e-mails; and (3) L–3 produced the e-mails in discovery. Plaintiff’s conclusory statements are based on impermissible inferences and on hearsay, which are not reliable summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Plaintiff does not identify any evidence that could demonstrate that L–3 had intercepted the e-mails as opposed to acquiring them through other means. Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth, 19 F.3d at 1533. While Borninski contends that “[c]learly the only way L3com could have come to possess this plaintiff’s e-mail is ... via an illegal intercept,”11 it is not clear to the court because such a contention is based on unsupported speculation and assumption by Borninski. Moreover, L–3 provides uncontroverted evidence, through Windham’s sworn affidavit, that computer security personnel acquired the documents from Borninski’s hard drive and not by accessing Borninski’s personal e-mail account or intercepting his e-mails. Specifically, Windam states, “I created a folder on L–3[’s] ... network and copied some of the contents of Borninski’s hard drive into the folder that I had created.” Defs.’ App. at 162. Borninski’s lack of specific competent evidence supporting his claim makes it impossible for his claim to withstand summary judgment. See Ragas, 139 F.3d at 458. The court finds it unnecessary to analyze Borninski’s claim under the Communications Act because the “evidence” Borninski provides to the court is woefully inadequate.

As a further attempt to assert a claim, Borninski contends that his “e-mail is also governed by ... other federal and/or state law related to communications privacy” and “the case law cited by L3com in its SJ motion is post–1999/2000 when the intercepts occurred, and [Plaintiff] requests that the Court use the law in effect at the time of the intercept to evaluate the SJ motion.” Pl.’s Resp. at 19. Additionally, Borninski argues that “internet [e-mail] travels via a variety of media (radio, ethernet [sic], wireless LAN, and other network media), and thus the L3com attempt to dismiss plaintiff’s claim because of the ‘wrong transmission medium’ is futile.” Id. Despite Borninski’s pro se status, the court will not search for or try to create causes of action for him. While a pro se litigant’s pleadings and papers are to be liberally construed and not held to the same standard as those drafted by lawyers,12 the court is aware of no authority that requires it to be an advocate on behalf of any litigant and declines to do so in this case. If there is some other statute or common law that provides Borninski with a cause of action, he should provide that authority to the court. The court now turns to Borninski’s claim under the ECPA.

2. Borninski’s Claim Under the ECPA

*10 While Borninski did not assert a claim under Title I or Title II of the ECPA in his Amended Complaint, he contends in his response that the ECPA protects the privacy of e-mail communications.13 L–3 contends that even assuming Borninski asserts his claims under the ECPA, L–3 did not violate the statute because (1) there is no evidence establishing that L–3 unlawfully intercepted Borninski’s e-mails, and to demonstrate a violation under Title I, a plaintiff must prove that the interception of the electronic communication was contemporaneous with its transmission; (2) there is no evidence establishing that L–3 unlawfully accessed Borninski’s e-mails from electronic storage, as defined under Title II, because “electronic storage” under the Fraser decision does not include information downloaded onto an employer’s computer or server;14 and (3) Borninski had given written permission for L–3 to monitor his electronic communications over the Internet.

Borninski contends that this case is distinguishable from the situation in Fraser. He contends that in Fraser “the owner of the e-mail system did not violate [the] ECPA when they [sic] viewed the e-mail stored on their [sic] system.” In this case, however, he contends that L–3 intercepted e-mail residing on the Hotmail e-mail server, as opposed to that residing on the company e-mail server, and that L–3 not only viewed, but also stole several of his e-mails and, therefore, violated the ECPA.

For purposes of analysis, because there are no significant factual differences in the manner in which each individual e-mail was allegedly intercepted or accessed, the court will deal with this claim with respect to the e-mails as a whole, rather than individually.15

a. Title I of the ECPA

Title I of the ECPA, 28 U.S.C. § 2511(a)(1), known as the Wiretap Act (“Title I”), prohibits the unlawful interception of e-mails. Under Title I, it is illegal to “intentionally intercept[ ] ... any wire, oral or electronic communication....” 18 U.S.C. § 2511(1)(a). See 18 U.S.C. § 2510(12) (defines electronic communication as including e-mails);16 Under the amended Wiretap Act, “intercept” is defined as “the aural or other acquisition of the contents of ... wire, electronic or oral communications through the use of any electronic mechanical or other device.” 18 U.S.C. § 2510(4) (1986). For one to be liable under Title I, the interception must be contemporaneous with transmission. See Steve Jackson Games, 816 F.Supp. at 441.17 The person intercepting must access the communication while it is actually in the process of traveling to its destination. 18 U.S.C. § 2510 (2000).

Borninski provides no evidence to establish that L–3 intercepted his e-mail communications. To the extent Borninski does provide “evidence,” it is conclusory and full of impermissible inferences. Borninski’s case against L–3 with respect to this claim is principally based on his speculation and impermissible hearsay, and unsupported by any admissible evidence. Specifically, Borninski maintains that L–3 intercepted his e-mails because (1) third-parties told him they sent him e-mails,18 (2) Borninski did not receive those e-mails, and (3) L–3 produced several of Borninski’s e-mails during discovery. In his response, Borninski argues that “because plaintiff never received the Calka e-mail because it had been intercepted in transit to plaintiff, the method of intercept L3com used is irrelevant to their violating the ECPA and/or other communications privacy laws in this case.” Pl.’s Resp. at 19. L–3 contends that it did not acquire the contents of Borninski’s personal e-mail through interception, but only through its lawful access to Borninski’s stored data on L–3 hardware. In support of its contention, L–3 offers the affidavits of Williamson and Windham in which they state that the company did not access Borninski’s personal Hotmail account and do not have that capability.19 At summary judgment, where all reasonable inferences must be drawn in favor of the nonmovant, the court, when presented with competent evidence, would necessarily have to rule in favor of Borninski; however, Borninski fails to present the court with any competent evidence of his claim that L–3 intercepted his electronic communications. Borninski provides the court with only his speculation and conjecture in the form of a sworn affidavit, and the court cannot rely on speculation and conjecture to support a claim. In order to rule in favor of Borninski on this claim, the record would have to contain at least some evidence beyond Borninski’s speculation and conjecture. This evidence could have come in the form of an affidavit, or some other competent evidence, from someone familiar with computer monitoring at L–3 who could testify to facts such that a reasonable jury could find that L–3 violated the ECPA. Here, Borninski asserts only conjecture and speculation based on hearsay and impermissible inference. The court finds in favor of L–3 Defendants and concludes that there is no evidence that Borninski’s personal e-mails were intercepted or accessed by L–3 in any violation of Title I of the ECPA. For the reasons stated herein, the court determines that there is no genuine issue of material fact that Borninski’s personal e-mails were intercepted or accessed by L–3 in violation of Title I of the ECPA. Accordingly, L–3 Defendants are entitled to judgment as a matter of law with respect to this claim. The court now turns to determine whether Borninski has a claim under Title II.

b. Title II of ECPA, Stored Communications Act

*11 Title II, known as the Stored Communications Act, regulates the intentional access of stored electronic communications and records. Under this Act, it is a violation if a person “intentionally accesses without authorization a facility through which an electronic communication service is provided .... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system....” 18 U.S.C. § 2701(a)(1). Any person aggrieved by a violation of this Act may bring a civil action under 18 U.S.C. § 2707 to recover from the person or entity which engaged in the violation. As discussed in section III(A)(2)(a), supra, e-mail falls within the definition of electronic communication.

During the relevant time period, Facility Security Officer Williamson was responsible for the L–3 facilities in Arlington and Grand Prairie, Texas. In his deposition, Williamson states that, pursuant to his obligations to the company, he decided to open an investigation on “Borninski and examine the contents of his company-issued computer hard drive to determine if Borninski was in breach of L–3 Communications’ security protocol or policies.” Defs.’ App. at 149. Williamson then instructed Windham to copy the contents of Borninski’s computer hard drive to the company’s computer network. As a result of this investigation, Williamson discovered a letter, dated April 15, 2000, “purportedly written by Calka, a resident of Warsaw, Poland.” L–3, therefore, contends that this correspondence received from Calka was not unlawfully intercepted, but lawfully accessed by its agents as “electronic storage” under the statute. In support of this contention, L–3 cites Fraser in which the court held that a company did not violate ECPA when it downloaded employees’ e-mails stored on company servers. Fraser v. Nationwide Mutual Ins. Co., 135 F.Supp.2d at 635.

Borninski states that he never received any of the alleged intercepted or accessed e-mails and concludes that the e-mails were retrieved from Hotmail servers. In support of this contention, Borninski provides, as evidence, his own affidavit asserting that the e-mails were never received and third-party hearsay stating that the e-mails had been sent; however, in addition to hearsay, the key piece of evidence missing from Borninski’s contentions is any proof that L–3 accessed his Hotmail account, as he alleges. As discussed in section III(A)(1), supra., Borninski prematurely concludes that because (1) he did not receive the e-mails, (2) third-parties say they sent those e-mails, and (3) L–3 has possession of said e-mails, L–3 must have intercepted it from his Hotmail account. L–3 maintains that the e-mails were retrieved from Borninski’s computer’s hard drive, as opposed to Borninski’s Hotmail account, and provides affidavits from personnel who conducted the investigation on Borninski and retrieved the e-mails. Plaintiff therefore fails to present competent evidence that establishes a genuine issue of material fact as to whether the e-mails were illegally intercepted or accessed.20 Since Defendants have presented competent evidence that Borninski’s e-mails were retrieved from his computer’s hard drive, no genuine issue of material fact exists.

*12 In Fraser, the defendant accessed plaintiff’s e-mail that was located on the defendant’s server after plaintiff had already downloaded the message to plaintiff’s hard drive. In Borninski’s situation, L–3 retrieved the message from his hard drive and copied the file to the company network. L–3 contends that at the time they acquired the correspondence, it had already been stored on the Borninski’s company-issued computer hard drive. L–3, relying on Fraser, contends that by copying the Calka letter from the company-issued computer to the network, it did not violate Title II of the ECPA because an employer’s computer does not constitute “electronic storage” under the statute. The court agrees. Electronic storage is defined under the ECPA as “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication....” 18 U.S.C. § 2510(17). As demonstrated through Williamson and Windham’s respective affidavits, L–3 did not access the e-mails while in “electronic storage” as defined under the ECPA; rather, L–3 security personnel accessed the e-mails while residing on Borninski’s company-issued computer hard drive. As the electronic communications had ended, Borninski’s company-issued computer hard drive would not qualify as “temporary [or] intermediate storage of a wire or electronic communication incidental to the electronic transmission,” nor would it qualify as “storage ... by an electronic communication service for purposes of backup protection of such communication....” As Borninski failed to provide competent evidence refuting L–3’s evidence, L–3 Defendants are entitled to judgment as a matter of law with respect to this claim.

Alternatively, the court determines that L–3’s access to Borninski’s company-issued computer is not “access[ing] without authorization.” L–3 exercises ownership control over its network and the computers attached to the network. It is a common business practice today for an employer to provide its employees with computer equipment and Internet access. Companies routinely exercise control over such equipment, including maintenance of the software and hardware, and revocation of access rights when an employee’s employment is terminated. L–3’s access to Borninski’s company-issued computer hard drive and its contents, therefore, was properly authorized.

For the reasons stated herein, the court determines that there is no genuine issue of material fact as to whether Borninski’s personal e-mails were accessed by L–3 in violation of Title II of the ECPA. Accordingly, the L–3 Defendants are entitled to judgment as a matter of law with respect to this claim.

c. Consent to Monitor Borninski’s Communications

Pursuant to 18 U.S.C. § 2511, no violation of the ECPA occurs if the relevant communications were “intercepted” or “accessed” with the consent of at least one participant to the communication. 18 U.S.C. § 2511(2)(d) (“It shall not be unlawful under this chapter [18 U.S.C. §§ 2510 et seq.] for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception....”).

*13 L–3 states that Borninski signed the company’s “Application for Internet Access” form on his first day of employment and therefore expressly consented to L–3’s monitoring of his communications over the Internet. Specifically, L–3’s Application for Internet Access advises employees that their Internet access should be limited to “business use only,” and that the company “logs and archives all incoming and outgoing data communications through its gateway system. Use of the gateway implies consent to such monitoring.” Defs.’ App. at 136. It follows, L–3 contends, that because Borninski gave “prior consent to such interception” pursuant to its Application for Internet Access, L–3 is not liable under the ECPA. 18 U.S.C. §§ 2511(2)(d) & 2701(c).

In his response, Borninski contends that he was required to sign the Application for Internet Access as a prerequisite to his obtaining employment and he never consented to L–3 invading his “communications or to [its] intercepting and stealing [of] his e-mails.” Pl.’s Resp. to: L–3Communication Defs.’ Mot. for Summ. J. at 3, Pl.’s Aff. Regarding the Intercept of Pl.’s Communications by L–3Com at 1 ¶ 3.

The court disagrees with Borninski’s position. First, Borninski fails to provide the court with any basis in law for his apparent position that the Application for Internet Access was not a valid form of consent because it was a prerequisite for employment. No one forced Borninski to sign the form and accept employment. While it was a condition to attain employment, Borninski was free to refuse to sign the form and seek employment elsewhere. Further, he was fully aware of what was required and expected of him prior to making his commitment to L–3. If he did not feel comfortable or had qualms about working under such conditions (to which he had a right to object), Borninski should have not continued his employment with L–3. Moreover, it is not unusual for employers to require employees to consent to the monitoring of their Internet activity at the workplace. Employers that handle sensitive, classified information and engage in government defense contract work have an even more compelling need to monitor their employees Internet usage and to require prospective employees to consent to such monitoring. Regardless of Borninski’s colorful characterization of what transpired, the bottom line is that he consented to the monitoring of his communications of which he now complains. Finally, for the reasons previously stated, Borninski presents no evidence that his e-mails were stolen or illegally intercepted. The court concludes that summary judgment in favor L–3 Defendants is appropriate with respect to Borninski’s claim of illegal interception or access of his e-mail communications under the ECPA because of his express consent to the monitoring of his Internet activity and lack of competent summary judgment evidence supporting his allegation.

B. Plaintiff’s State Claims

Plaintiff alleges the following state claims against L–3 Defendants:

*14 1. violation of the Tex. Civ. Prac. & Rem.Code Chapter 123 (Texas Wiretap Statute);

2. invasion of privacy under common law;

3. public disclosure of private facts under common law;

4. assault and battery under common law; and

5. false arrest and imprisonment under common law.

In this case, all federal claims are being dismissed. The court has jurisdiction over the state law claims only through the exercise of its supplemental jurisdiction pursuant to 28 U.S.C. 1367(a).21 “[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] ‘general rule’ is to decline to exercise jurisdiction over the pendent state law claims.” McClelland v. Gronwaldt,

Footnotes

1

The court initially granted summary judgment for Kinecta on March 1, 2004; however, it vacated that order on July 24, 2004 to allow Plaintiff additional time to file a response. After he filed a response, Defendant Kinecta filed its reply on September 9, 2004. Additionally, the Grand Prairie Defendants filed a motion for summary judgment. The court addresses these two motions by separate order.

2

Borninski listed each of his claims as a count, and in count 1, he alleges a violation of his civil constitutional rights against Defendants Steelman, Spicer, Williamson, the City of Grand Prairie, and L–3; in count 2, he alleges a violation of his right to financial privacy against Defendant Kinecta; in count 3, he alleges the unauthorized intercept, publication, and use of electronic communications against Defendant L–3; in count 4, he alleges assault and battery Defendants Williamson, Springer, and L–3; in count 5, he alleges false arrest and imprisonment against Defendants Williamson, Springer, and L–3; in count 6, he alleges intentional infliction of emotional and mental distress against Defendants Williamson, Springer, and L–3; in count 7, he alleges wrongful termination from employment against Defendant L–3; in count 8, he alleges blacklisting against Defendant L–3; in count 9, he alleges defamation against L–3; in count 10, he alleges interference with business relations against Defendant L–3; and in count 11, he alleges invasion of privacy against Defendants Williamson, Springer, and L–3.

3

Count II.

4

Count I.

5

The court issued an order granting an extension of time, allowing Plaintiff to until August 26, 2004 to file a response and L–3 Defendants until September 10, 2004 to file a reply.

6

The court notes that both parties submitted several contested facts under the guise of uncontested facts. Such tactics purposefully and unnecessarily convolute the record, consume scarce judicial resources, and delay the administration of justice. The parties and counsel are cautioned that such tactics will not be taken lightly, and in the future sanctions will be imposed against the offending party or counsel.

7

L–3 later purchased Raytheon’s simulator design facility.

8

The DOD contract states: “Notification of government security activity is required.” Defs.’ App. at 216. Further, the contract states “[t]he National Industrial Security Program Operating Manual (NISPOM) January 1995 applies to this contract.” Id. at 217.

9

While Borninski’s security application was pending, L–3 assigned Borninski to work on non-classified projects. Although Borninski contends that his work was never classified, he does not dispute that at least some of the projects he worked on while at L–3 were classified projects. Accordingly, pursuant to L–3’s contract with the Department of Defense and NISPOM, L–3 was required to obtain security clearance for Borninski.

10

The motion for summary judgment in this case was filed on April 22, 2004, over one year ago. The delay in the court’s disposition of this case has been caused, in part, by the numerous motions for leave, incomplete filings, and a flood of irrelevant evidence. Further, Borninski failed throughout his filings to cite and apply the relevant legal standards to the facts and circumstances of this case. For example, in Plaintiff’s Brief in Support of His Response to: L–3 Communication Defendants’ Motion for Summary Judgment, he only lists three legal authorities to support at least five claims against L–3 Defendants in a twenty-page brief. Presumably, because he was not guided by legal standards, Borninski repeatedly failed to set forth competent and relevant evidence. The court notes that because of the contours of the case and Borninski’s status as a pro se litigant, the case analysis has become tedious, and a delayed disposition of the case was inevitable.

11

See Pl.’s Br. in Supp. of His Resp. to: L–3 Communication Defs.’ Mot. for Summ. J. at 19.

12

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

13

Ordinarily, Borninski’s failure to assert such a claim would be the end of the story; however, since L–3 Defendants address this matter in their motion and reply, the court proceeds to determine this claim as if it had been raised in Plaintiff’s Amended Complaint.

14

See Fraser v. Nationwide Mutual Ins. Co., 135 F.Supp.2d 623, 634–35 (E.D.Penn.2001).

15

In Borninski’s Amended Complaint, he alleges “Defendants interfered with e-mails related to a health care situation within plaintiff’s family and prevented plaintiff from receiving such e-mails.... Defendants intercepted plaintiff’s e-mail communications with his technical peers and published them to subvert plaintiff’s security clearance.” Pl.’s Am. Compl. at 8. In his Amended Complaint, with respect to specific e-mails, Borninski alleges that L–3 accessed his personal Hotmail account to intercept an e-mail from the undisclosed foreign national, Calka; and intercepted e-mail communications sent by his family to his personal Homail account (alleged by third-party family members to have been sent, but never received by Borninski). In Borninski’s response, he also alleges that L–3 intercepted or accessed another e-mail provided to him by L–3 during discovery from Dr. Sayed, which Plaintiff never received.

16

An “electronic communication” is defined as: “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include ... (B) any wire or oral communication.” 18 U.S.C. § 2510(12).

17

See also Wesley College v. Pitts, 974 F.Supp. 375, 385–86 (D.Del.1997) (citing Steve Jackson Games, 36 F.3d at 461–62, and concluding that Congress did not intend to include the acquisition of electronic communications in electronic storage within the definition of “intercept”).

18

Third party statements are inadmissible to create a fact question. Jacobs v. City of Port Neches, 7 F.Supp.2d 829, 834 (E.D.Tex.1998) (“[I]nadmissible hearsay cannot establish a genuine issue of material fact.”), aff’d, 193 F.3d 516 (5th Cir.1999).

19

Borninski argues that L–3 is using Williamson and Windham’s unsworn declarations as evidence of how the e-mails were acquired. Borninski’s assertion is plainly false. Both declarations are signed and include language that Williamson and Windham “declare under penalty of perjury that the foregoing [are] true and correct.” Defs.’ App. at 154, 164. This is sufficient for a declaration pursuant to 28 U.S.C. § 1746.

20

In Borninski’s deposition he states that he has “[n]o idea what [L–3 Communications] did in maintaining or keeping any records of my computer use. So I guess it would be impossible for me to answer the question that you[’re][sic] posing.” Defs.’ App. at 36.

21

The court notes that in his original complaint, Plaintiff selected “federal question” as the proper basis for this court’s jurisdiction over his claims at the time this action was initiated. In Plaintiff’s amended complaint, he notes both federal question and diversity of citizenship as the basis for this court’s jurisdiction. It is clear from the amended complaint that Plaintiff Borninski and Defendants City of Grand Prairie (Grand Prairie Police Department), Officer Spicer, and Officer Steelman are citizens of the State of Texas. Accordingly, Plaintiff has not established the requirement of complete diversity of citizenship between opposing parties that is necessary to establish federal jurisdiction through diversity of citizenship. Accordingly, this court has jurisdiction only through the exercise of its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

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