     Case: 12-50102     Document: 00512026622         Page: 1     Date Filed: 10/19/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 19, 2012

                                     No. 12-50102                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



LONNIE E. LARSON,

                                                  Plaintiff-Appellant
v.

HYPERION INTERNATIONAL TECHNOLOGIES, L.L.C.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC No. 11-00754


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        The Plaintiff-Appellant, Lonnie E. Larson (“Larson”), proceeding pro se,
filed suit against Defendant-Appellee, Hyperion International Technologies, LLC
(“Hyperion”), alleging two counts of violating the Computer Fraud and Abuse
Act; one count of violating the Stored Communications Act; one count of violating
the Federal Wiretap Act; invasion of privacy; and intentional infliction of
emotional distress. Larson also sought punitive damages. The district court


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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dismissed the complaint for failure to state a claim.               Larson appeals the
dismissal. Finding no reversible error, we AFFIRM.
      I.        BACKGROUND
      On February 26, 2002, Larson was employed as a general laborer for a
construction contractor, JAS Glover (“Glover”). Larson had been hired through
Altres, a temporary staffing agency that had placed him with Glover to work on
the Lower Hamaukau Diverson Ditch Tunnel Detour Project in Hawaii. Larson
was struck by lightning while working on this project. Altres completed an
injury report, and Glover filled out an accident/incident report form regarding
his injuries. These reports were sent to Liberty Mutual Fire Insurance Company
(“Liberty Mutual”), which was the private worker’s compensation insurance
carrier. Additionally, a physician’s report regarding Larson’s injuries as a result
of the lightning strike was submitted.              Liberty Mutual denied the claim.
Meanwhile, Larson had applied for Social Security Disability Income benefits
based on the injuries he suffered from the lightning strike. Ultimately, he was
found permanently disabled by the Social Security Administration.
      After Larson was injured, he moved from Hawaii to Arizona. While in
Arizona, Larson retained Defendant-Appellee Hyperion as a consultant for a
project.1     Frank Stephenson was Hyperion’s Regional Manager in Tempe,
Arizona. Stephenson sent a letter via facsimile to Liberty Mutual in which he
stated that Larson was attempting to commit insurance fraud with respect to the
lightning strike claim. Stephenson wrote that it appeared that Larson was
physically active and not disabled. Stephenson neither signed the letter as an
employee of Hyperion nor used Hyperion’s address in the letter. Stephenson did
however fax the letter to Liberty Mutual from Hyperion’s fax machine.
Stephenson used the Hyperion fax cover page on subsequent transmissions.


      1
            Larson does not provide details about the project.

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Stephenson faxed Liberty Mutual copies of Larson’s personal and private
communications, including medical records, communications with Larson’s
attorney, and payroll records. Larson never consented to allowing Hyperion or
Stephenson to have access to his private communications or records. Larson
claims that Stephenson gained access to Larson’s personal information during
the aforementioned project. Liberty Mutual stored this information with
Larson’s worker’s compensation claim file. Larson discovered that Liberty
Mutual had this confidential information during discovery in a separate civil
action Larson had brought against Liberty Mutual in Hawaii.
      Thereafter, Larson filed a complaint against Hyperion, alleging: two
counts of violating the Computer Fraud and Abuse Act; one count of violating the
Stored Communications Act; one count of violating the Federal Wiretap Act;
invasion of privacy; and intentional infliction of emotional distress. Larson also
sought punitive damages. The magistrate judge ordered Larson to file a more
definite statement after determining that the complaint was insufficient for the
court to properly evaluate his claims, and Larson complied.
      Pursuant to Federal Rule of Civil Procedure 12(b)(6), Hyperion filed a
motion to dismiss Larson’s complaint for failure to state a claim. The district
court granted the motion to dismiss and entered final judgment. Larson now
appeals pro se.
      II.   ANALYSIS
            A.      Standard of Review
      We review de novo a district court’s dismissal pursuant to Rule 12(b)(6),
“accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007).
However, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). “To survive a motion to dismiss, a complaint must

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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Id. (citation omitted). In the instant case, Larson was
proceeding pro se when he filed his complaint. Although pro se complaints are
held to less stringent standards than those crafted by attorneys, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d
376, 378 (5th Cir. 2002) (citation and internal quotation marks omitted).
             B.     Rule 12(b)(6) Dismissal
                    1.      Tort Claims
      Larson contends that the district court erred in dismissing his complaint
for failure to state a claim. It is undisputed that Texas law governs Larson’s
tort claims of invasion of privacy and intentional infliction of emotional distress.
Larson has filed suit against Hyperion based solely on the actions taken by
Hyperion’s Regional Manager, Stephenson.           “The general rule is that an
employer is liable for its employee’s tort only when the tortious act falls within
the scope of the employee’s general authority in furtherance of the employer’s
business and for the accomplishment of the object for which the employee was
hired.” Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002).
Further, the Texas Supreme Court has explained that “for an employee’s acts to
be within the scope of employment, ‘the conduct must be of the same general
nature as that authorized or incidental to the conduct authorized.’” Id. (quoting
Smith v. M Sys. Food Stores, Inc., 297 S.W.2d 112, 114 (1957)). Accordingly, “if
an employee deviates from the performance of his duties for his own purposes,
the employer is not responsible for what occurs during that deviation.”
      Larson has alleged that Stephenson was Hyperion’s Regional Manager in
Tempe, Arizona. Larson has alleged that Stephenson acquired Larson’s personal
and private communications, including emails, medical records, and attorney-
client correspondence, and sent them via facsimile to Liberty Mutual.

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Stephenson did not have Larson’s permission to access or distribute this
information. Stephenson used Hyperion’s fax machine and Hyperion’s cover
page. Larson has not alleged how Stephenson’s alleged attempt to show that
Larson was committing insurance fraud in Hawaii would further Hyperion’s
technology business.2         In other words, Larson has failed to allege how
Stephenson’s allegedly tortious and criminal conduct was within the scope of his
employment or how it would have furthered Hyperion’s business.
                            a.      Intentional Infliction of Emotional Distress
       The elements of a claim for intentional infliction of emotional distress are:
“(1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct
was extreme and outrageous; (3) the defendant’s actions caused the plaintiff
emotional distress; and (4) the resulting emotional distress was severe.” Tiller
v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). “Extreme and outrageous conduct
is conduct so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id. (citations and internal quotation
marks omitted). The district court ruled that, as a matter of law, the allegations
that Stephenson shared private employment and medical records with an
insurance adjustor did not constitute extreme and outrageous conduct under
Texas law. We agree. See Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex.
1999) (explaining that “the fact that an action is intentional, malicious, or even
criminal does not, standing alone, mean that it is extreme or outrageous for
purposes of intentional infliction of emotional distress”).
       Further, even assuming arguendo that Larson’s complaint states a claim
for intentional infliction of emotional distress against Stephenson, he has not


       2
          Although Larson speculated in his district court pleadings that Hyperion was
attempting to develop Liberty Mutual as a client, we agree with the district court that Larson
must allege more than the mere possibility that Hyperion is liable for the conduct at issue.

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alleged facts sufficient to show that Stephenson’s actions were in the scope of his
employment with Hyperion. Thus, he has not stated a claim against Hyperion,
the sole defendant in this suit.
                    b.      Invasion of Privacy
      The claim for an invasion of privacy has the following elements:
“(1) publicity was given to matters concerning the plaintiff’s private life;
(2) publication of such facts would be highly offensive to a reasonable person of
ordinary sensibilities; and (3) matters publicized are not of legitimate public
concern.”   Crumrine v. Harte-Hanks Television, Inc., 37 S.W.3d 124, 127
(Tex.App.–San Antonio 2001). The district court dismissed this claim because
Larson’s complaint did not contain an allegation that Stephenson had shared the
information with the public at large. We agree. See Restatement (Second) of
Torts § 652D cmt. a (1979) (“‘Publicity’ . . . means that the matter is made public,
by communicating it to the pubic at large, or to so many persons that the matter
must be regarded as substantially certain to become one of public knowledge.”).
Nonetheless, even assuming arguendo that Larson’s complaint states a claim for
invasion of privacy against Stephenson, he has not alleged facts sufficient to
show that Stephenson’s actions were in the scope of his employment with
Hyperion. Thus, Larson has not stated a claim against Hyperion.
                    2.      Statutory Claims
      In his complaint, Larson also raised two counts of violating the Computer
Fraud and Abuse Act; one count of violating the Stored Communications Act;
and one count of violating the Federal Wiretap Act. As recognized by the district
court, all the preceding statutes expressly require intentional interception or
publication of electronic communications.           The Wiretap Act proscribes
“intentionally intercept[ing] any electronic communications.” DIRECTV, Inc. v.
Bennett, 470 F.3d 565, 566-67 (5th Cir. 2006); 18 U.S.C. §§ 2511(1); 2520(a).
Similarly, the Computer Fraud and Abuse Act prohibits certain intentional or

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knowing access to a computer without authorization. See 18 U.S.C. § 1030(a)(4)-
(5); United States v. Phillips, 477 F.3d 215, 220-21 (5th Cir. 2007) (rejecting
defendant’s argument that the government presented insufficient evidence to
“find him guilty of intentional unauthorized access” under § 1030). Finally, the
Stored Communications Act requires that a defendant “intentionally access[ ]
without authorization” or “intentionally exceed[ ] an authorization to access” a
facility that provides electronic communication service. 18 U.S.C. § 2701(a)(1)-
(2); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 459 (5th Cir.
1994) (recognizing that 18 U.S.C. § 2701 prohibits “intentional access, without
authorization, to stored electronic communications”).
       Here, Larson alleges that Stephenson intentionally intercepted and
divulged his private communications. The statutes require intentional conduct
by the defendant. As previously set forth, Larson’s allegations do not suffice to
show that Stephenson was acting on behalf of Hyperion. Thus, the district court
did not err in dismissing the statutory claims against Hyperion.
               C.     Dismissal Without Leave to Amend Complaint
       Larson contends that the district court abused its discretion by dismissing
his complaint without granting him leave to amend it.3 Larson is correct that,
as a general rule, “a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th
Cir. 2009). “Granting leave to amend is not required, however, if the plaintiff
has already pleaded his ‘best case.’” Id. (citation omitted).
       We conclude that Larson had pleaded his “best case.” After Larson filed
his complaint, the magistrate judge ordered him to file a more definite



       3
          For the first time on appeal in his reply brief, Larson contends that the district court
should have allowed him discovery before it dismissed his complaint. “Arguments raised for
the first time in a reply brief, even by pro se litigants such as [Larson], are waived.” United
States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).

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statement, and Larson complied. Additionally, Larson filed an Opposition to the
Defendant’s Motion to Dismiss. As Hyperion points out, in its order of dismissal,
the district court quoted excerpts from arguments in Larson’s Opposition to
Defendant’s Motion to Dismiss that were not contained in either his complaint
or his More Definite Statement. Further, in his appellate brief, Larson fails to
set forth “any material facts he would have included in an amended complaint”
had he been given the opportunity to do so. Brewster, 587 F.3d at 768. Because
Larson “gives no indication that he did not plead his best case” in his district
court pleadings, he has failed to show that the district court abused its discretion
in dismissing his complaint. Id.
      III.   CONCLUSION
      For the above reasons, the judgment of the district court is AFFIRMED.




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