ADAM NYMAN and SARA NYMAN, Plaintiffs-Appellants, v THOMSON REUTERS HOLDINGS, INC., doing business as WESTLAW, Defendant-Appellee.
No. 344213
STATE OF MICHIGAN COURT OF APPEALS
September 3, 2019
Wayne Circuit Court LC No. 17-012847-CB; FOR PUBLICATION; 9:00 a.m.
Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
In this putative class action primarily alleging violations of the Social Security Number Privacy Act (SSNPA),
Plaintiffs allege in their complaint they discovered defendant listed the first five digits of their social security numbers on the “public records portal” of a webpage owned by defendant available only to subscribers. Plaintiffs, believing such actions by defendant violated the SSNPA, submitted a written demand letter to defendant, requesting removal of the information and payment of $5,000. Plaintiffs did not allege any actual damages or harm in the letter but requested $5,000 under
In lieu of answering the complaint, defendant moved for summary disposition under MCR 2.116(C)(8). Defendant argued that plaintiffs failed to plead actual damages and failed to comport with the presuit written demand procedure under
Plaintiffs countered that the SSNPA allowed them to elect statutory damages of $1,000 as an alternative to pleading and proving actual damages. Plaintiffs also asserted that they generally plead injuries related to their tort claims sufficient to survive summary disposition under the MCR 2.116(C)(8) standard. The trial court agreed with defendant that plaintiffs failed to properly plead as required by the SSNPA and opined that defendant had not publicly displayed the first five digits of their social security numbers. The trial court granted defendant‘s motion for summary disposition and dismissed plaintiffs’ complaint without prejudice. This appeal followed. For the reasons set forth below, we affirm.
II. STANDARD OF REVIEW
We review de novo a circuit court‘s summary disposition decision. Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010). “A court may grant summary disposition under MCR 2.116(C)(8) if the opposing party has failed to state a claim on which relief can be granted.” Id. (quotation marks and brackets omitted). “A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings.” Id. (citation omitted). All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmoving party. Id. at 304-305. “Summary disposition on the basis of subrule (C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery.” Id. at 305 (quotation marks omitted). “Questions of statutory interpretation are also reviewed de novo.” Rowland v Washtenaw Co Road Comm, 477 Mich 197, 202; 731 NW2d 41 (2007).
III. ANALYSIS
A. SSNPA CLAIM
Plaintiffs first argue
This issue requires us to engage in statutory interpretation. “When construing a statute, this Court‘s primary goal is to give effect to the intent of the Legislature. We begin by construing the language of the statute itself. When the language is unambiguous, we give the words their plain meaning and apply the statute as written.” Id. (citation omitted). We must examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme.” Ally Fin Inc v State Treasurer, 502 Mich 484, 493; 918 NW2d 662 (2018) (quotation marks omitted). “In doing so, we consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” Id. (quotation marks and citation omitted). Proper statutory interpretation requires: (1) reading the statute as a whole, (2) reading its words and phrases in the context of the entire legislative scheme, (3) while considering both the plain meaning of the critical words and phrases along with their placement and purpose within the statutory scheme, and (4) interpreting the statutory provisions in harmony with the entire statutory scheme. Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009). “If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted.” Deruiter v Byron Twp, 325 Mich App 275, 283; 926 NW2d 268 (2018) (citation omitted). We “must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” South Dearborn Envtl Improvement Ass‘n, Inc v Dep‘t of Envtl Quality, 502 Mich 349, 361; 917 NW2d 603 (2018) (quotation marks and citation omitted).
The SSNPA, in pertinent part, provides that “a person shall not intentionally . . . publicly display all or more than 4 sequential digits of the social security number” of a person.
to exhibit, hold up, post, or make visible or set out for open view, including, but not limited to, open view on a computer device, computer network, website, or other electronic medium or device, to members of the public or in a public manner.
Under
An individual may bring a civil action against a person who violates [
MCL 445.83 ] and may recover actual damages. If the person knowingly violates [MCL 445.83 ], an individual may recover actual damages or $1,000.00, whichever is greater. If the person knowingly violates [MCL 445.83 ], an individual may also recover reasonable attorney fees. Except for good cause, not later than 60 days before filing a civil action, an individual must make a written demand to the person for a violation of [MCL 445.83 ] for the amount of his or her actual damages with reasonable documentation of the violation and the actualdamages caused by the violation. [ MCL 445.86(2) .]
Plaintiffs claim that the trial court erred by reading the SSNPA to require pleading of actual damages by civil litigants to state a viable claim. Plaintiffs argue that
We find nothing ambiguous in the language of the SSNPA. The plain language of
The first three sentences of
The Legislature has addressed issues related to the protection of consumers in many statutory enactments and has provided for remedies and causes of action where an individual has experienced actual damages. Examples of statutes that require proof of actual damages and permit the recovery of actual or statutory damages, whichever is greater, upon proof of loss, include the Cooperative Identity Protection Act under
The statutory requirement that a written demand must set forth “the amount of . . . actual damages with reasonable documentation of the violation and the actual damages caused by the violation” is not mere surplusage. Logically, if a plaintiff seeking to bring a civil suit under the SSNPA is required to provide a written demand, and that written demand must be accompanied by documentation of actual damages suffered, then that plaintiff must have suffered actual damages and cannot merely elect statutory damages without proof of actual damages. Plaintiffs’ reading of
If the Legislature intended that a plaintiff could plead and prove a per se violation of
Plaintiffs make two additional arguments as attempts to escape the statutory actual damages requirement. First, plaintiffs argue that they pleaded actual damages in their complaint. We disagree.
“The primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position.” Baker v Marshall, 323 Mich App 590, 595; 919 NW2d 407 (2018) (quotation marks and brackets omitted). Under MCR 2.111(B)(1), “A complaint must contain ‘[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend . . . .” Dalley, 287 Mich App at 305, quoting MCR 2.111(B)(1).
In this case, plaintiffs’ demand letter said nothing about actual damages. Their complaint alleged violations of the SSNPA, alleged that they were entitled to statutory damages, but no allegations stated that either plaintiff suffered any actual damages from the alleged violations of the Act. After defendant moved for summary disposition, plaintiffs argued that they suffered actual damages because a court could infer from their complaint that they would suffer apprehension of identity theft
Plaintiffs also argue that
We hold that a party pursuing a cause of action under
B. PLAINTIFFS’ TORT CLAIMS
Plaintiffs also argue that the trial court improperly dismissed their claims of invasion of privacy and ordinary negligence. We disagree.
There are four different types of “invasion of privacy“: “(1) intrusion upon the plaintiff‘s seclusion or solitude or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant‘s advantage, of the plaintiff‘s name or likeness.” Puetz v Spectrum Health Hosps, 324 Mich App 51, 69; 919 NW2d 439 (2018) (quotation marks omitted). Plaintiffs’ invasion of privacy claim relies on the second type of invasion of privacy tort—public disclosure of private facts. “A cause of action for public disclosure of embarrassing private facts requires (1) the disclosure of information (2) that is highly offensive to a reasonable person and (3) that is of no legitimate concern to the
“To establish a prima facie case of negligence, a plaintiff must prove the following elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant‘s breach was a proximate cause of the plaintiff‘s damages.” Chelik v Capitol Transp, LLC, 313 Mich App 83, 89; 880 NW2d 350 (2015) (citation omitted).
In Doe v Henry Ford Health Sys, 308 Mich App 592; 865 NW2d 915 (2014), an error on a hospital website resulted in the private information of certain former patients becoming available to the public on the Internet. Id. at 594. “The information made accessible included the patient‘s name, medical record number, the date of the patient‘s visit, the location of the visit, the physician‘s name, and a summary of the visit.” Id. at 594-595. In the plaintiff‘s particular case, the patient records disclosed diagnoses of a sexually transmitted disease and alopecia. Id. The patients brought a class action lawsuit against the hospital, asserting claims of invasion of privacy and ordinary negligence. Id. at 595. The complaint sought “all damages” suffered by the class, and the plaintiffs “advanced a theory of ‘presumed damages,’ ” on the basis of the release of information itself—i.e., the invasion of privacy in and of itself damaged them. Id. at 595-596. This Court specifically noted that “there is no indication in the lower court record that the information in question was viewed by a third party on the Internet or that it was used inappropriately.” Id. at 595 (footnote omitted). The only actual damages identified “were those incurred for the procurement of monitoring to guard against identity theft.” Id. at 596. The trial court certified the class and denied the hospital‘s motion for summary disposition. Id. On appeal, this Court reversed, agreeing with the hospital that, “in the absence of evidence of present injury to [the] plaintiff‘s person or property, such damages are not recoverable in negligence . . . or invasion of privacy.” Id. at 599-600. The panel reasoned that “plaintiff‘s identity-theft-protection
This case is similar to Henry Ford. Plaintiffs allege that five digits of their social security numbers were available on defendant‘s website. Plaintiffs, however, did not allege that anyone actually accessed that information or that it was viewed by a third party on the Internet or that anyone used it inappropriately or for some improper purpose. Plaintiffs did not allege that anyone‘s access resulted in some form of injury to plaintiffs or actual cognizable damages. Indeed, notwithstanding their arguments to the trial court and now on appeal, plaintiffs’ complaint lacked allegations that they suffered any harm that gave rise to actual damages proximately caused by defendant‘s conduct. In Henry Ford, this Court explained that “damages incurred in anticipation of possible future injury rather than in response to present injuries are not cognizable under Michigan law.” Id.
Moreover, because defendant moved for summary disposition under MCR 2.116(C)(8), the trial court necessarily limited its consideration to the allegations in plaintiffs’ complaint. The trial court analyzed plaintiffs’ allegation of public disclosure and inquired whether plaintiffs suffered any injury giving rise to damages. Plaintiffs’ counsel conceded that they had no identifiable actual damages and only surmised that they might have some in the future or find some through discovery. The trial court essentially concluded that defendant did not make plaintiffs’ information publicly available because access to the information could only be obtained by subscription to defendant‘s service. More importantly, the trial court could discern no allegation of injury or harm that caused plaintiffs any actual damages and that their common law claims were dependent on their statutory claims which they failed to properly plead. Like the plaintiff in Henry Ford, plaintiffs in this case failed to allege an actual, present injury which they needed to plead to state viable causes of action. Accordingly, the trial court properly granted defendant summary disposition of plaintiffs’ invasion of privacy and ordinary negligence tort claims under MCR 2.116(C)(8). Because our decision is dispositive, we decline to consider plaintiffs’ remaining arguments.
Affirmed.
/s/ James Robert Redford
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel