                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 BELINDA HENSON,

        Plaintiff,
                v.                                     Civil Action No. 19-2734 (JEB)
 HOWARD UNIVERSITY, et al.,

        Defendants.


                                 MEMORANDUM OPINION

       Plaintiff Belinda Henson believes that her former employer and coworkers are engaged in

a conspiracy to hack her phones, computers, and personal accounts. She has thus sued Howard

University, its former IT manager, and her former supervisor for accessing her personal and work

devices without her consent. Defendants now move to dismiss for lack of subject-matter

jurisdiction and for failure to state a claim. As Henson’s sole federal count — under the Federal

Wiretap Act — does not survive, the Court declines to exercise supplemental jurisdiction over

the remaining claims, which will be remanded to the District of Columbia Superior Court.

I.     Background

       As it must at this stage, the Court assumes the facts pled in the Complaint are true.

Henson worked as a Patient Service Representative in the Faculty Practice Plan (FPP) at the

Howard University Hospital (HUH). See ECF No. 1-1 (Compl.), ¶¶ 1, 3–4. Shortly after

starting, she began to raise issues she observed in the department, including other employees

taking long lunches and failing to comply with department procedures, and her supervisor

withholding her pay. Id., ¶¶ 11, 13–16.




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        Henson believes that this supervisor, Defendant Marie Newman, did not appreciate that

she was reporting these problems and shared that sentiment with the other administrators in the

department. Id., ¶¶ 19, 25. After years of listening to Henson’s complaints, these administrators

“had enough and began conspiring to interfere with Plaintiff’s employment relationship and

ultimately run her out of the department.” Id., ¶ 19. First, she was made to use the official

timekeeping system, rather than keep time herself, which meant that she had to walk two blocks

to clock in and out of work. Id., ¶ 21. She alleges that fellow employees then became distant or

avoided her completely because “the administrators had planted the seeds in the employees’

minds that she was a bad employee,” and that the cold shoulder from her colleagues would drive

her to leave. Id., ¶ 23.

        FPP staff then allegedly escalated their plan to force Henson out. She claims that

Defendant Alfred Michael, the IT manager for FPP, was directed by Plan administrators to “hack

into the Plaintiff’s work computer, home computer, and personal cell phone.” Id., ¶ 26. By

doing so, Henson maintains that Defendants could “remove and change sensitive information,”

including “emails related to the Plaintiff’s reporting . . . of the previously mentioned issues.” Id.

Monitoring her computer and phone files would help FPP administrators “become familiar with

the wide scope of her complaints.” Id., ¶ 36.

        Henson noticed a variety of circumstances that purportedly evidenced the hacking. At

work, a contractor stopped by to upgrade her computer, but stopped in the middle of the hard-

drive backup. Id., ¶¶ 34–36. Although Henson states that he promised to wipe the hard drive,

she believes that “he did not actually delete the files.” Id., ¶ 36. She also had difficulty with her

work phone, as calls would have “unexplained echoes,” and the phone would display the word

“Forwarding.” Id., ¶ 27. On her personal devices, Henson claims that the word “[DRAFT]”




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would appear on her text messages, and that her phone would update and open applications

spontaneously. Id., ¶¶ 29–31. Finally, she believes that Defendants were able to gain control of

some of her personal accounts, including her bank and Lyft account. Id., ¶¶ 50–52.

        Henson initially sued Defendants Howard University, FPP, HUH, Newman, and Michael

in the Superior Court of the District of Columbia. Id. at 1. She brought a number of claims,

including invasion of privacy, trespass to chattels, intentional infliction of emotional distress, and

violations of the Federal Wiretap Act, 18 U.S.C. § 2511, et seq. Defendants then removed the

case here, asserting jurisdiction under 28 U.S.C. § 1331 for the FWA claim and diversity

jurisdiction under § 1332(a). They now move to dismiss for lack of subject-matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Federal Rule

12(b)(6).

II.     Legal Standard

        In evaluating a Motion to Dismiss under Federal Rule 12(b)(1), the Court must “treat the

complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000) (internal citation omitted) (quoting Schuler v. United States, 617 F.2d 605,

608 (D.C. Cir. 1979)). The Court need not accept as true, however, “a legal conclusion couched

as a factual allegation,” or an inference unsupported by the facts set forth in the Complaint. See

Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265,

286 (1986)).

        Federal Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to

“state a claim upon which relief can be granted.” When the sufficiency of a complaint is

challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and




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should be liberally construed in the plaintiff’s favor. See Leatherman v. Tarrant Cty. Narcotics &

Coordination Unit, 507 U.S. 163, 164 (1993). Although the notice-pleading rules are “not meant

to impose a great burden on a plaintiff,” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005),

and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, see Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain 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) (internal quotation marks omitted). A plaintiff must put forth

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” Twombly, 550 U.S. at 556 (quotation marks omitted), the

facts alleged in the complaint “must be enough to raise a right to relief above the speculative

level.” Id. at 555. “The Court does not have to accept asserted inferences or conclusory

allegations that are unsupported by facts set forth” in the complaint. See Richards v. Duke Univ.,

480 F. Supp. 2d 222, 235 (D.D.C. 2007).

III.    Analysis

        The Court begins with Henson’s FWA count, which is the only federal claim asserted. In

seeking dismissal, Defendants first contend that her allegations are so farfetched as to be

“patently insubstantial” and therefore susceptible of dismissal for lack of subject-matter

jurisdiction. See ECF No. 9 (Def. MTD) at 6. Alternatively, they assert that Plaintiff’s FWA

claim is insufficient because it fails to allege that her communications were actually intercepted.

Id. at 14. The Court will consider these points separately.




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       A. Rule 12(b)(1)

       Defendants maintain that conspiratorial claims like Henson’s must be dismissed under

Rule 12(b)(1) for lack of subject-matter jurisdiction. Yet, such a dismissal is reserved for claims

that are “wholly insubstantial and frivolous” and therefore lack subject-matter jurisdiction to be

heard. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (quoting Bell

v. Hood, 327 U.S. 678, 682 (1946)).

       This is not such a case. Claims in this category are not “merely . . . doubtful or

questionable, but rather . . . essentially fictitious.” Carone-Ferdinand v. CIA, 131 F. Supp. 2d

232, 234 (D.D.C. 2001) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)). Essentially

fictitious claims include “‘bizarre conspiracy theories,’ ‘fantastic government manipulations of

[one’s] will or mind,’ and ‘any sort of supernatural invention.’” Id. (quoting Best, 39 F.3d at

330). Construing the facts in favor of Henson, it is not entirely “bizarre” or “fantastic[al]” that

Defendants may have wanted to monitor or delete her communications after she complained

about their alleged misdoings. Id. Dismissal is therefore not warranted under 12(b)(1).

       B. Rule 12(b)(6)

       To state a claim under the FWA, see 18 U.S.C. § 2520, Henson must establish that

Defendants “(1) intentionally (2) intercepted, endeavored to intercept or procured another person

to intercept or endeavor to intercept (3) the contents of (4) an electronic communication (5) using

a device.” Richards, 480 F. Supp. 2d at 240 (quotation marks omitted); see 18 U.S.C. §

2511(1)(a).

       Although Henson’s Complaint details the lengths to which Defendants allegedly went to

intercept communications on her work devices, her FWA claim relates only to her personal

phone, computer, and accounts. See Compl., ¶ 80; ECF No. 11 (Pl. Reply) at 7. The Court,




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therefore, need not address whether the alleged intrusions on her work phone and computer

would constitute actionable conduct for purposes of the FWA.

       Looking solely at her personal devices, Henson’s allegations are insufficient to state a

claim. She alleges that Defendant Michael was directed by FPP’s administrators to hack into her

computers, cell phones, and accounts using “sophisticated computer and technology skills.”

Compl. at 2. Specifically, she states that he coordinated with “the help of other members of his

IT staff” and “contractors and agents of HU and HUH” to “secretly infiltrate” Plaintiff’s devices,

id. at 2, ¶ 32, and that he was directed to “remove and change sensitive information and

documents,” including emails relating to the problems Plaintiff had identified at her job. Id.,

¶ 26. The Court looks at the specific allegations related to each device.

       Henson first claims that she observed someone hacking her personal computer, moving

her cursor “extraordinarily fast.” Id., ¶ 48. She also alleges that she watched as someone

accessing her personal computer “in real time” deleted information. Id., ¶ 37. Yet neither of

these occurrences qualifies as an “interception” within the meaning of 18 U.S.C. § 2511(1)(a).

       An “intercept,” as defined by the Act, means “the aural or other acquisition of the

contents of any wire, electronic, or oral communication through the use of any electronic,

mechanical, or other device.” Id. § 2510(4). Courts interpreting this provision have narrowed

the definition to contemporaneous interception of transmitted information. See Fraser v.

Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003) (interception must be

contemporaneous with transmission of communication). In other words, these courts have gone

so far as to hold that for information to be “intercepted” within the meaning of the Act, it must be

accessed at the same time that the communication is sent. Because Plaintiff has not alleged an

acquisition of any particular communication — let alone any contemporaneous acquisition —




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she fails to plead a necessary element of an FWA claim. See Tantaros v. Fox News Network,

LLC, No. 17-2958, 2018 WL 2731268, at *8 (S.D.N.Y. May 18, 2018) (dismissing plaintiff’s

conclusory allegation that defendant intercepted communications by installing malware on her

computer).

       Henson next alleges that her personal phone was compromised because the word

“[DRAFT]” appeared in her text messages, applications and features previously unused were

activated, and she had a phone-update notification that covered her screen. See Compl., ¶¶ 29–

30. For substantively similar reasons, Henson again has not alleged that Defendants

“intercepted” any of her communications within the meaning of the Act or did so

contemporaneously. See Fraser, 352 F.3d at 113; Tantaros, 2018 WL 2731268, at *7.

       Finally, Henson believes that her personal accounts have been compromised. She states

that her Microsoft Office account was hacked by Defendants, who assigned themselves a

“parent” account and changed hers to a “child” account, thereby limiting her access to her email.

See Compl., ¶¶ 50–51. Henson additionally claims that her Lyft account was hacked because a

foreign PayPal email address was attached to her payment information. Id., ¶ 51. She last

believes that Defendants conspired to attack her Bank of America debit card, which was closed

because of suspicious activities. Id., ¶ 52.

       None of these allegations alleges that her communications were acquired. The mere

possibility that Defendants may be able to intercept her communications, by virtue of accessing

her accounts, is insufficient to state a claim under the FWA. See Tarantaros, 2018 WL 2731268,

at *8 (stating that allegation “support[ing] an inference that Defendants had the capability to

intercept . . . communications” was “insufficient to survive a motion to dismiss”) (citing Iqbal,

556 U.S. at 678).




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        Plaintiff must put forth “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Here,

she has offered only conclusory allegations that the technological problems that she faced were

the result of a Defendant attempting to control her personal devices and accounts. While

Plaintiff need not provide proof at this stage, vague and conclusory statements like this are

insufficient. Richards, 480 F. Supp. 2d at 240; Iqbal, 556 U.S. at 679 (“[P]leadings that . . . are

no more than conclusions[] are not entitled to the assumption of truth.”). Plaintiff’s FWA

claims, accordingly, do not state a claim for which relief can be granted.

        C. Supplemental Jurisdiction

        Having found that Henson’s only federal claim must be dismissed, the Court is faced

with the question of whether it should entertain her remaining counts. Defendants removed the

case here asserting both federal-question and diversity jurisdiction under 28 U.S.C. § 1332(a).

See ECF No. 1 (Notice of Removal) at 2. The Supreme Court has held that § 1332(a) requires

“complete diversity of citizenship,” meaning that “diversity jurisdiction does not exist unless

each defendant is a citizen of a different State from each plaintiff.” Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 373 (1978). The Complaint here indicates that Henson and

Defendant Alfred Michael are both citizens of Maryland. See Compl. at 1. Diversity is thus

lacking.

        The Court further declines to exercise supplemental jurisdiction. Federal district courts

are given supplemental (or “pendent”) jurisdiction over state claims that “form part of the same

case or controversy” as federal claims over which they have original jurisdiction. See 28 U.S.C.

§ 1367(a). By the same token, they “may decline to exercise supplemental jurisdiction over

[such] claim[s] . . . if . . . the district court has dismissed all claims over which it has original




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jurisdiction.” Id. § 1367(c). The decision of whether to exercise supplemental jurisdiction

where a court has dismissed all federal claims is left to the court’s discretion, as “pendent

jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 726 (1966); see also Shekoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C. Cir.

2005). When deciding whether to exercise supplemental jurisdiction over state claims, federal

courts should consider “judicial economy, convenience, fairness, and comity.” Shekoyan, 409

F.3d at 424 (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). When all

federal claims “are eliminated before trial,” however, those factors “will point toward declining

to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon, 484 U.S. at 350

n.7; see also Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1267 (D.C.

Cir. 1995) (finding discretion set out in Carnegie-Mellon Univ. “unaffected by the subsequent

enactment of 28 U.S.C. § 1367(d), in the Judicial Improvements Act of 1990”).

       As this case has not progressed past the initial Motion to Dismiss and the Court has

developed no familiarity with the issues presented, it will decline to retain jurisdiction and will

instead remand the matter to the Superior Court.

IV.    Conclusion

       For these reasons, the Court will grant Defendants’ Motion to Dismiss in part. A separate

Order so stating will issue this day, which Order will also remand the matter to Superior Court.

                                                              /s/ James E. Boasberg
                                                              JAMES E. BOASBERG
                                                              United States District Judge
Date: February 10, 2020




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