THE CHILDREN‘S HOSPITAL CORPORATION D/B/A
Civil Action No.: 15-cv-13281
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
April 25, 2016
CASPER, J.
MEMORANDUM AND ORDER
I. Introduction
Plаintiff Children‘s Hospital Corporation (“Children‘s Hospital“) has filed this action against defendant Isin Cakir (“Cakir“) alleging that Cakir is in wrongful possession of the images and data on the laptop computer Cakir used during the course of his employment with Children‘s Hospital. D. 1. Children‘s Hospital asserts claims for replevin
II. Standard of Review
A. Motion to Dismiss
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to
The Court will dismiss a pleading that fails to include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To avoid dismissal, a complaint must provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief.‘” García-Catalán, 734 F.3d at 102 (internal citation omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.‘” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557).
B. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to
C. Procedural History
This civil action is related to Cabi et al. v. Boston Children‘s Hospital (“Cabi“), an ongoing suit in which Cakir, along with two other plaintiffs, asserts employment discrimination, wrongful termination and retaliation claims against Children‘s Hospital. Cabi et al. v. Boston Children‘s Hosp., No. 15-cv-12306-DJC, 2016 WL 593495, at *1 (D. Mass. Feb. 12, 2016). The plaintiffs in Cabi filed their complaint on June 11, 2015. Id. at *3. Less than three months later, on September 3, 2015, Children‘s Hospital instituted this action against Cakir. D. 1. Cakir raised a counterclaim for abuse of process in his answer. D. 9. Children‘s Hospital moves for judgment on the pleadings on its conversion and replevin claims. D. 12. Children‘s Hospital moves to dismiss Cakir‘s counterclaim for abuse of process. Id. The Court heard the parties on the pending motion and took the matter under advisement. D. 20.
D. Factual Summary
From October 2010 to February or April 2015, Cakir was employed as a post-doctoral fellow at Children‘s Hospital. D. 1 ¶ 8; D. 9 at 5. Throughout his employment, Cakir used a laptop to conduct his work (“the Laptop“). D. 1 ¶ 1; D. 9 at 1. As an employee, Cakir was subject to three Children‘s Hospital policies related to network resources, data storage and data ownership rights. D. 1 ¶¶ 15-17; D. 9 at 2-3; D. 13 at 7-8. At some point after his employment ended, Cakir delivered thе Laptop to TechFusion, a third-party computer forensics company. D. 1 ¶¶ 3, 13, 20; D. 9 at 2. TechFusion created a forensic image of the Laptop, capturing all of the data contained on the Laptop. D. 1 ¶¶ 3, 13, 20; D. 9 at 2. Children‘s Hospital alleges that its employment policies grant Children‘s Hospital ownership of all of the images on the Laptop including all files, deleted files, hard drives, data and metadata as well as an exact forensic copy of the Laptop (“Laptop Data“). D. 1 ¶ 1. According to Children‘s Hospital, Cakir instructed TechFusion not to release the Laptop Data to Children‘s Hospital, D. 1 ¶¶ 3, 24, and continues to refuse to produce the Laptop Data, as imaged by and in the possession of TechFusion. D. 1 ¶ 26.
E. Analysis
A. Children‘s Hospital is Not Entitled to Judgment on its Conversion Claim (Count I)
Conversion involves “the exercise of dominion or control over the personal prоperty of another.” Third Nat. Bank of Hampden Cty. v. Cont‘l Ins. Co., 388 Mass. 240, 244 (1983). A plaintiff must show that (1) the defendant intentionally and wrongfully exercised control over property owned or possessed by the defendant, (2) the plaintiff was damaged and (3) if the defendant legitimately gained possession under a good-faith claim of right, the plaintiff‘s demand for the return of the property was refused. See Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90, 95 (1st Cir. 1993) (citing Magaw v. Beals, 272 Mass. 334 (1930)). Children‘s Hospital contends that, pursuant to internal policies, Children‘s Hospital is the sole owner of the Laptop Data, D. 1 ¶ 29, Children‘s Hospital is entitled to immediate, exclusive and unqualified possession of the Laptop Data, id., and Cakir has wrongfully converted the Laptop Data by refusing to deliver it to Children‘s Hospital. D. 1 ¶¶ 28-31; D. 13 at 6-9.
Children‘s Hospital relies upon three policies to establish its ownership of the Laptop Data: Acceptable Use of Computer
CHB provides Computer and Network Resourсes, including email and use of the Internet, for legitimate business use in the course of your assigned duties. Use of these resources and access to the information on them is a privilege granted to you at the sole discretion of CHB. . . . Information stored on or transmitted over CHB‘s Computer and Network Resources (including email) is the sole and exclusive property of CHB, and remains so even when stored on non-CHB equipment and media (such as your personаl laptop and/or mobile device). . . . When a User ends employment or association with CHB, all CHB provided equipment must be returned. This includes laptops, PDAs . . . and any other equipment assigned to the User by CHB.
D. 13-2 at 2, 4. The plain language of the Acceptable Use Policy provides that all electronic information Cakir stored on or transmitted over Children‘s Hospital‘s computer and network resources is the sole and exclusive property of Childrеn‘s Hospital. Notably, ownership pursuant to the Acceptable Use Policy does not turn upon the subject matter of the data. Instead, the language is sufficiently broad to encompass any data that is transmitted over or stored on Children‘s Hospital‘s computer or network resources.
In relevant part, the Participation Agreement provides:
I understand that during the pursuit of activities within the scope of my employment by Children‘s Hospital Boston (“Hospital“), or during the performance of sponsored research made available to me by the Hospital . . . I may (individually or jointly with others) conceive or first reduce to practice inventions or discoveries, or copyrightable materials, or develop tangible or intangible research results and intellectual property (including, but not limited to, research notebooks, data, data bases, photographs, original drawings and diagrams, computer programs, and chemical and biologicаl materials . . . ). In consideration of my employment, or my opportunity to perform sponsored research, or my use of Hospital funds, resources, or facilities, I agree: (1) that all such research results, intellectual property, inventions, discoveries and copyrightable materials will be owned by the Hospital . . . [and] to refrain from removing research materials, copyrightable materials,
and other intellectual property from the Hоspital premises.”
D. 13-1 at 2. Pursuant to its plain language, the Participation Agreement grants Children‘s Hospital ownership over the research results and intellectual property Cakir developed within the scope of his employment with Children‘s Hospital. The Participation Agreement is supplemented by the Intellectual Property Policy. In relevant part, the Intellectual Property Policy provides:
The Hospital owns all research results аnd intellectual property, whether tangible or intangible, developed by any person on the premises of the Hospital, or through substantial use of the Hospital‘s resources or facilities, or that relates to the research conducted by such person for the Hospital, or by a person within the scope of his or her employment by the Hospital . . . For purposes of clarity, such intellectual property includes, but is not limited to, research notebooks, data, databases, photographs, original drawings and diagrams, computer programs, as well as chemical and biological materials . . . Such intellectual property shall be removed from the Hospital‘s premises or transferred to other parties only for non-commercial research purposes . . . . Every invention based on the Hospital‘s intellectual property, as defined above, shall be the рroperty of the Hospital.
D. 9-1 at 2-3. The Intellectual Property Policy is broader than the Participation Agreement: where the Participation Agreement limits ownership to research conducted within the scope of employment, the Intellectual Property Policy establishes that Children‘s Hospital‘s ownership extends to (1) research Cakir produced through the substantial use of Children‘s Hospital resources, (2) content that relates to rеsearch Cakir conducted for Children‘s Hospital and (3) research Cakir developed on Children‘s Hospital‘s premises. Taking all of the policies together, then, Children‘s Hospital owns (1) any data within the Laptop Data that was transmitted over or stored on Children‘s Hospital computers and networks; (2) any data containing research that fell within the scope of Cakir‘s employment with Children‘s Hospital; (3) any data that relates to research conducted for Children‘s Hospital; (4) any data containing research that was produced through substantial use of Children‘s Hospital resources; and (5) any data containing research that was conducted on Children‘s Hospital‘s premises. D. 9-1; D. 13-1; D. 13-2.
Cakir asserts that the Laptop Data contains, inter alia, personal data and privileged communications that fall outside of the applicable policies. D. 9 at 1-2. In response, without denying that the Laptop Data contains Cakir‘s personal data, Children‘s Hospitаl points to the Acceptable Use Policy for coverage. D. 13 at 8. Children‘s Hospital stresses that rights of privacy do not extend to Children‘s Hospital‘s network resources and the “Acceptable Use Policy does not carve out an exception to the Hospital‘s ownership of the Laptop Data” for “personal information.” Id. The Acceptable Use Policy, however, applies only to data that was transmitted ovеr Children‘s Hospital‘s network and resources. D. 13-2 at 2. Thus, the Acceptable Use Policy does not grant Children‘s Hospital ownership of Cakir‘s personal communications to the extent those communications never interacted with Children‘s Hospital‘s network and resources. Children‘s Hospital has presented no basis for its ownership over any of Cakir‘s data that was (1) never transmitted or stored over Children‘s Hospital‘s network and (2) was not created with the use оf Children‘s Hospital resources, within the scope of Cakir‘s employment with Children‘s Hospital, on Children‘s Hospital‘s premises or in relation
The remaining factual dispute concerns whether the Laptop Data contains personal and privileged data that falls outside of the policies is fatal to Children‘s Hospital‘s motion. Cakir “cannot convert what [Children‘s Hospital] does not own.” Jayson Assocs., Inc. v. United Parcel Serv. Co., No. 04-cv-10771-RWZ, 2004 WL 1576725, at *2 (D. Mass. July 15, 2004) (citing Nadal-Ginard v. Children‘s Hosp. Corp., No. 94-cv-3782-TSB, 1995 WL 1146118, at *8 (Mass. Super. Dec. 1, 1999)) (dismissing conversion claim where ownership was not alleged). That is, “only a defendant that wrongfully exercises acts of ownership has committed conversion.” See Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir. 2005) (internal citation and quotation marks omitted). Because Children‘s Hospital‘s conversion claim pertains to “all the data on the Laptop, as well as the exact forensic coрy of the Laptop,” D. 13 at 2, Children‘s Hospital has failed to establish its ownership over all of the property that is the subject of its conversion claim. In light of this factual dispute, Children‘s Hospital is not entitled to judgment on the pleadings. See, e.g., Elsevier Ltd. v. Chitika, Inc., 826 F. Supp. 2d 398, 403 (D. Mass. 2011) (denying motion for judgment on the pleadings even though the moving party “[might have] eventually [been] entitled to judgment” because factual questions remained at that juncture); Sarvis v. Polyvore, Inc., No. 12-cv-12233-MBB, 2015 WL 5934759, at *3, *9 (D. Mass. Aug. 24, 2015), report and recommendation adopted, No. 12-cv-12233-LTS, 2015 WL 6182226 (D. Mass. Sept. 14, 2015) (denying motion for judgment on the pleadings where defendant‘s answer gave rise to factual disputes). Accordingly, the motion is denied.
B. Children‘s Hospital is Not Entitled to Judgment on its Replevin Claim (Count II)
To prevail on a replevin claim, a plaintiff must show that (1) the goods in question were unlawfully taken from their owner‘s possession or have been unlawfully detained (2) the owner has a right to possession and (3) the value of the goods exceeds $20. See Wilson v. Estate of Arcese, No. 07-cv-01461-MAH, 2007 WL 2429607, at *3 (Mass. Super. Aug. 9, 2007). “[N]ot only must the plaintiff have the right to possession generally, but he must have the right to immediate, exclusive and unqualified possession of the property as against each defendant.” Id. (alteration in original) (internal quotation marks and citation omitted). For all of the reasons discussed above, Children‘s Hospital has failed to establish ownership of the Laptop Data in its entirety – an essential еlement of the replevin claim. See, e.g., Davis v. Smith-Springfield Body Corp., 250 Mass. 278, 284 (1924) (explaining that “[a] plaintiff in replevin must maintain his case on the strength of his own title or claim“); Wilson, 2007 WL 2429607, at *3 (dismissing replevin claim where “[m]issing from these facts [was] any specificity [as] to ownership of property . . . [and] any allegation that the defendants are unlawfully detaining the property“). Accordingly, Children‘s Hospital is not entitled to judgment on the pleadings on its replevin claim.
Although Children‘s Hospital is not entitled to judgment on its replevin and conversion
C. Cakir Has Not Adequately Stated a Claim for Abuse of Process
Finally, Childrеn‘s Hospital moves to dismiss Cakir‘s abuse of process counterclaim. To state a claim for abuse of process, Cakir must allege that (1) process was used (2) the use was motivated by an ulterior purpose and (3) the plaintiff suffered damage. See MHA Fin. Corp. v. Varenko Invs. Ltd., 583 F. Supp. 2d 173, 178 (D. Mass. 2008) (citing Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975)). Process means “causing papers to issue by a court to bring a party or property within its jurisdiction.” Silvia v. Building Inspector of W. Bridgewater, 35 Mass. Aрp. Ct. 451, 453 n.4 (1993) (quoting Jones, 369 Mass. at 390) (internal quotation marks omitted). Abuse of process involves the “malicious use of legal process to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.” LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 142 (D. Mass. 2007) (granting summary judgment for defendant where there was “no evidence of any kind” to indicate that officers acted with ulterior or illegitimate purpose) (quoting Carroll v. Gillespie, 14 Mass. App. Ct. 12, 26 (1982)) (internal quotation mark omitted).
Ulterior purpose exists where a party “institut[es] a civil action to achieve a collateral purpose other than winning the lawsuit.” Am. Mgmt. Servs., Inc. v. George S. May Intern. Co., 933 F. Supp. 64, 69 (D. Mass. 1996) (citing Silvia, 35 Mass. App. Ct. at 453–54). The ulterior motive, however, must be “more than the intent to harass; there must be intention to use process for coercion or harassment to obtain something not properly part of the suit.” Broadway Mgmt. Servs. Ltd. v. Cullinet Software, Inc., 652 F. Supp. 1501, 1503 (D. Mass. 1987). Courts havе, for example, found an ulterior purpose where a party uses process to improperly influence the outcome in a separate, ongoing lawsuit. See, e.g., Am. Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460, 470 (1985) (concluding that initiating a separate litigation for the sake of coercing wife to accept terms unfavorable to her in divorce settlement constituted an ulterior purpose).
Children‘s Hospital initiated this lawsuit against Cakir, D. 1, thereby satisfying process. Cakir alleges that Children‘s Hospital instituted this lawsuit in an effort to influence the ongoing Cabi litigation. D. 9 at 7. Cakir alleges that Children‘s Hospital could have raised its concerns regarding the Laptop Data by filing a counterclaim in Cabi and, instead, Children‘s Hospital needlessly instituted not only this lawsuit but also a state court action against another plaintiff from Cabi. Id. According to Cakir, Children‘s Hospital raises the same conversion and rеplevin
F. Conclusion
For these reasons, the Court DENIES Children‘s Hospital‘s motion for judgment on the pleadings on its conversion and replevin claims. D. 12. The Court ALLOWS Children‘s Hospital‘s motion to dismiss Cakir‘s counterclaim. D. 12.
So Ordered.
/s/ Denise J. Casper
United States District Judge