HONORABLE RICHARD A. JONES 1
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 CHIH C. A. CHEN and SHEN H. C. LIN, CASE NO. 2:25-cv-01067-RAJ 11 Plaintiffs, ORDER 12 v. 13 KEITH NELSON and DEBORAH 14 NELSON,
15 Defendants. 16 17 18 I. INTRODUCTION 19 THIS MATTER comes before the Court on Defendants’ Motion to Dismiss, Dkt. # 20 7. The Court has reviewed the motion, the submissions in support of and in opposition to 21 the motion, and the balance of the record. For the reasons set forth below, the Court 22 GRANTS Defendants’ motion to dismiss. 23 II. BACKGROUND 24 This is a dispute between neighbors. Plaintiffs Chih C. A. Chen and Shen H. C. Lin 25 purchased their home in Blaine, Washington in 2016. Dkt. # 1 ¶ 10. Defendants Keith and 26 Deborah Nelson moved in next door in 2018. Id. ¶ 11. Plaintiffs allege that starting in 27 January 2023, they “observed a drone surveilling their Property.” Id. ¶ 12. They further 1 allege that “[u]pon information and belief, Defendants’ drone was equipped with audio 2 recording capabilities, including an integrated microphone capable of capturing 3 conversations from distances of up to hundreds of feet away.” Id. ¶ 13. Plaintiffs allege 4 that on multiple occasions, they “observed the drone conducting intrusive surveillance 5 activities, frequently hovering near their windows and recording private family moments 6 and conversations.” Id. ¶ 15. Plaintiffs told Defendants to stop multiple times, but 7 Defendants continued operating the drone near Plaintiffs’ property. Id. ¶¶ 17–22. On 8 September 15, 2024, Plaintiffs “learned that Defendants had stored extensive recording 9 footage spanning more than a year.” Id. ¶ 23. Plaintiffs demanded that Defendants destroy 10 the footage, but Defendants ignored the request. Id. ¶¶ 24–15. 11 Based on these events, Plaintiffs bring claims against Defendants under the federal 12 Electronic Communications Privacy Act (“ECPA”) and state law claims, including 13 negligence, intentional infliction of emotional distress, and invasion of privacy. Id. ¶¶ 36– 14 94. Plaintiffs invoke federal jurisdiction based on both federal question and diversity of 15 citizenship. Id. ¶¶ 5–6. As to diversity of citizenship, Plaintiffs allege they are Canadian 16 citizens, Defendants are Washington citizens, and the amount in controversy exceeds 17 $75,000. Id. ¶¶ 6–7. 1 18 III. LEGAL STANDARD 19 To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain 20 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 21 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 22 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Id. In analyzing a motion to dismiss, courts “accept all factual 25 allegations in the complaint as true and construe the pleadings in the light most favorable 26
27 1 This is not the first legal action between these neighbors. Defendants previously obtained an anti-harassment protection order against Plaintiffs in state court. Id. ¶ 27. 1 to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 2 “Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a 3 motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). 4 A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter 5 jurisdiction over the claims asserted. “Once challenged, the party asserting subject matter 6 jurisdiction has the burden of proving its existence.” Rattlesnake Coalition v. EPA, 509 7 F.3d 1095, 1102 n. 1 (9th Cir. 2007). A Rule 12(b)(1) challenge may be facial or factual. 8 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, 9 the challenger asserts that the allegations contained in a complaint are insufficient on their 10 face to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the challenger 11 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 12 jurisdiction.” Id. “The district court resolves a facial attack as it would a motion to dismiss 13 under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all 14 reasonable inferences in the plaintiff’s favor, the court determines whether the allegations 15 are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 16 F.3d 1117, 1121 (9th Cir. 2014)).2 17 IV. DISCUSSION 18 A. Electronic Communications Privacy Act 19 The ECPA prohibits the interception of “any wire, oral, or electronic 20 communication.” 18 U.S.C. § 2511(1)(a). “Intercept” means “the aural or other 21 acquisition of the contents of any wire, electronic, or oral communication through the use 22 of any electronic, mechanical, or other device.” Id. § 2510(4). “Oral communication” 23 means “any oral communication uttered by a person exhibiting an expectation that such 24 communication is not subject to interception under circumstances justifying such 25 expectation . . . .” Id. § 2510(2). “[T]he ECPA prohibits the audio recording of third-party
26 2 The Court construes Defendants’ challenge to diversity jurisdiction as a facial attack. Although 27 Defendants submit a factual declaration, their primary argument is that Plaintiffs fail to allege all facts necessary to establish diversity of citizenship. 1 communications, but not video recording.” Colvin v. Tooley-Young, No. 14-cv-1962, 2015 2 WL 4249411, at *3 (W.D. Wash. July 13, 2015) (citing United States v. Koyomejian, 970 3 F.2d 536, 537 (9th Cir. 1992)). 4 Defendants argue “Defendants’ drone contains no listening equipment” and thus it 5 is “simply impossible for them to hear or intercept communications with this equipment.” 6 Dkt. # 7 at 4. In support of their argument, Defendants submit a declaration from Mr. 7 Nelson stating his drone does not have audio capabilities. Dkt. # 8. On a motion to dismiss, 8 the Court cannot consider Mr. Nelson’s factual declaration and declines Defendants’ 9 request to convert this motion to one for summary judgment. 10 Nevertheless, Plaintiffs must plead sufficient facts to support a plausible claim for 11 relief. “[A]llegations ‘based on information and belief may suffice,’ ‘so long as the 12 allegations are accompanied by a statement of facts upon which the belief is founded.’” 13 Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480, 493–94 (9th Cir. 2019) (quoting 14 Wool v. Tandem Computers Inc., 818 F.2d 433, 1439 (9th Cir. 1987), overruled on other 15 grounds, Flood v. Miller, 35 Fed. App’x 701, 703 n.3 (9th Cir. 2002)). Here, Plaintiffs 16 allege “upon information and belief” that Defendants’ drone contains audio recording 17 capabilities. Dkt. # 1 ¶ 13. Plaintiffs do not, however, offer any factual basis for that belief. 18 For example, Plaintiffs do not allege the drone is a particular model with audio recording 19 capabilities, or that Defendants made any statements suggesting they had access to 20 Plaintiffs’ family’s private conversations.
Free access — add to your briefcase to read the full text and ask questions with AI
HONORABLE RICHARD A. JONES 1
8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 CHIH C. A. CHEN and SHEN H. C. LIN, CASE NO. 2:25-cv-01067-RAJ 11 Plaintiffs, ORDER 12 v. 13 KEITH NELSON and DEBORAH 14 NELSON,
15 Defendants. 16 17 18 I. INTRODUCTION 19 THIS MATTER comes before the Court on Defendants’ Motion to Dismiss, Dkt. # 20 7. The Court has reviewed the motion, the submissions in support of and in opposition to 21 the motion, and the balance of the record. For the reasons set forth below, the Court 22 GRANTS Defendants’ motion to dismiss. 23 II. BACKGROUND 24 This is a dispute between neighbors. Plaintiffs Chih C. A. Chen and Shen H. C. Lin 25 purchased their home in Blaine, Washington in 2016. Dkt. # 1 ¶ 10. Defendants Keith and 26 Deborah Nelson moved in next door in 2018. Id. ¶ 11. Plaintiffs allege that starting in 27 January 2023, they “observed a drone surveilling their Property.” Id. ¶ 12. They further 1 allege that “[u]pon information and belief, Defendants’ drone was equipped with audio 2 recording capabilities, including an integrated microphone capable of capturing 3 conversations from distances of up to hundreds of feet away.” Id. ¶ 13. Plaintiffs allege 4 that on multiple occasions, they “observed the drone conducting intrusive surveillance 5 activities, frequently hovering near their windows and recording private family moments 6 and conversations.” Id. ¶ 15. Plaintiffs told Defendants to stop multiple times, but 7 Defendants continued operating the drone near Plaintiffs’ property. Id. ¶¶ 17–22. On 8 September 15, 2024, Plaintiffs “learned that Defendants had stored extensive recording 9 footage spanning more than a year.” Id. ¶ 23. Plaintiffs demanded that Defendants destroy 10 the footage, but Defendants ignored the request. Id. ¶¶ 24–15. 11 Based on these events, Plaintiffs bring claims against Defendants under the federal 12 Electronic Communications Privacy Act (“ECPA”) and state law claims, including 13 negligence, intentional infliction of emotional distress, and invasion of privacy. Id. ¶¶ 36– 14 94. Plaintiffs invoke federal jurisdiction based on both federal question and diversity of 15 citizenship. Id. ¶¶ 5–6. As to diversity of citizenship, Plaintiffs allege they are Canadian 16 citizens, Defendants are Washington citizens, and the amount in controversy exceeds 17 $75,000. Id. ¶¶ 6–7. 1 18 III. LEGAL STANDARD 19 To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain 20 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 21 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 22 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Id. In analyzing a motion to dismiss, courts “accept all factual 25 allegations in the complaint as true and construe the pleadings in the light most favorable 26
27 1 This is not the first legal action between these neighbors. Defendants previously obtained an anti-harassment protection order against Plaintiffs in state court. Id. ¶ 27. 1 to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 2 “Conclusory allegations and unreasonable inferences, however, are insufficient to defeat a 3 motion to dismiss.” Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). 4 A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter 5 jurisdiction over the claims asserted. “Once challenged, the party asserting subject matter 6 jurisdiction has the burden of proving its existence.” Rattlesnake Coalition v. EPA, 509 7 F.3d 1095, 1102 n. 1 (9th Cir. 2007). A Rule 12(b)(1) challenge may be facial or factual. 8 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, 9 the challenger asserts that the allegations contained in a complaint are insufficient on their 10 face to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the challenger 11 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 12 jurisdiction.” Id. “The district court resolves a facial attack as it would a motion to dismiss 13 under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all 14 reasonable inferences in the plaintiff’s favor, the court determines whether the allegations 15 are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co., 749 16 F.3d 1117, 1121 (9th Cir. 2014)).2 17 IV. DISCUSSION 18 A. Electronic Communications Privacy Act 19 The ECPA prohibits the interception of “any wire, oral, or electronic 20 communication.” 18 U.S.C. § 2511(1)(a). “Intercept” means “the aural or other 21 acquisition of the contents of any wire, electronic, or oral communication through the use 22 of any electronic, mechanical, or other device.” Id. § 2510(4). “Oral communication” 23 means “any oral communication uttered by a person exhibiting an expectation that such 24 communication is not subject to interception under circumstances justifying such 25 expectation . . . .” Id. § 2510(2). “[T]he ECPA prohibits the audio recording of third-party
26 2 The Court construes Defendants’ challenge to diversity jurisdiction as a facial attack. Although 27 Defendants submit a factual declaration, their primary argument is that Plaintiffs fail to allege all facts necessary to establish diversity of citizenship. 1 communications, but not video recording.” Colvin v. Tooley-Young, No. 14-cv-1962, 2015 2 WL 4249411, at *3 (W.D. Wash. July 13, 2015) (citing United States v. Koyomejian, 970 3 F.2d 536, 537 (9th Cir. 1992)). 4 Defendants argue “Defendants’ drone contains no listening equipment” and thus it 5 is “simply impossible for them to hear or intercept communications with this equipment.” 6 Dkt. # 7 at 4. In support of their argument, Defendants submit a declaration from Mr. 7 Nelson stating his drone does not have audio capabilities. Dkt. # 8. On a motion to dismiss, 8 the Court cannot consider Mr. Nelson’s factual declaration and declines Defendants’ 9 request to convert this motion to one for summary judgment. 10 Nevertheless, Plaintiffs must plead sufficient facts to support a plausible claim for 11 relief. “[A]llegations ‘based on information and belief may suffice,’ ‘so long as the 12 allegations are accompanied by a statement of facts upon which the belief is founded.’” 13 Nayab v. Capital One Bank (USA), N.A., 942 F.3d 480, 493–94 (9th Cir. 2019) (quoting 14 Wool v. Tandem Computers Inc., 818 F.2d 433, 1439 (9th Cir. 1987), overruled on other 15 grounds, Flood v. Miller, 35 Fed. App’x 701, 703 n.3 (9th Cir. 2002)). Here, Plaintiffs 16 allege “upon information and belief” that Defendants’ drone contains audio recording 17 capabilities. Dkt. # 1 ¶ 13. Plaintiffs do not, however, offer any factual basis for that belief. 18 For example, Plaintiffs do not allege the drone is a particular model with audio recording 19 capabilities, or that Defendants made any statements suggesting they had access to 20 Plaintiffs’ family’s private conversations. Plaintiffs allege they “observed the drone” 21 “hovering near their windows and recording private family moments and conversations.” 22 Id. ¶ 15. But without more facts, it is not plausible that Plaintiffs “observed” the drone 23 recording their conversations (an action that is likely not visually detectable). And the 24 mere fact that the drone was hovering near a window, without more, is not necessarily 25 suggestive of audio recording as opposed to, for example, video-only surveillance. Finally, 26 Plaintiffs allege that in September 2024, they “learned that Defendants had stored extensive 27 recording footage spanning more than a year.” Id. ¶ 23. They do not explain the 1 circumstances of this discovery including, importantly, whether they learned the footage 2 contained audio recordings. 3 Without more factual support, the Court cannot draw a reasonable inference that 4 Defendants’ drone audio recorded Plaintiffs’ conversations in violation of the ECPA. This 5 defect may be cured by additional pleadings. According, Plaintiffs’ ECPA claim is 6 dismissed with leave to amend. 7 B. State Law Claims 8 Plaintiffs’ remaining causes of action are all state law claims. Thus, they may only 9 remain in federal court based on diversity jurisdiction or supplemental jurisdiction. 10 In cases between “citizens of a State and citizens or subjects of a foreign state,” 11 there is no diversity of citizenship if the foreign citizens “are lawfully admitted for 12 permanent residence in the United States and are domiciled in the same State.” 28 U.S.C. 13 § 1332(a)(2). “The party seeking to invoke the district court’s diversity jurisdiction always 14 bears the burden of both pleading and proving diversity jurisdiction.” NewGen, LLC v. 15 Safe Cig LLC, 840 F.3d 606, 613–14 (9th Cir. 2016). Therefore, “[t]he essential elements 16 of diversity jurisdiction . . . must be affirmatively alleged in the pleadings.” Bautista v. 17 Pan Am. World Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (quoting In re Mexico City 18 Aircrash, 708 F.2d 400, 404 n.4 (9th Cir. 1983)). Here, Plaintiffs plead they are citizens 19 of Canada and Defendants are citizens of Washington, Dkt. # 1 ¶¶ 1–4, but Plaintiffs fail 20 to plead whether they are lawful permanent residents in the United States and domiciled in 21 Washington. Thus, they fail to affirmatively plead all requirements for diversity 22 jurisdiction. See Li Ching Chu v. Tribal Techs., Inc., No. 12-cv-5306, 2013 WL 12130030, 23 at *5 (N.D. Cal. Jan. 25, 2013) (“plaintiffs must affirmatively allege (if true) that they: 24 either are not permanent residents or that they are permanent residents but were not 25 domiciled in the same state as any of the defendants when the claim was filed.”). Indeed, 26 the fact that Plaintiffs purchased their Blaine, Washington property in 2016 and is now 27 1 involved in a neighbor dispute involving the same property highly suggests diversity 2 jurisdiction may not be available. 3 Next, because the Court is dismissing the federal ECPA claim and this case is in 4 its earliest stages, the Court declines to exercise supplemental jurisdiction over the 5 remaining state law claims. See 28 U.S.C. § 1367(c)(3) (“district courts may decline to 6 exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed 7 all claims over which it has original jurisdiction.”); Acri v. Varian Assocs., Inc., 114 F.3d 8 999, 1001 (9th Cir. 1997) (“[I]n the usual case in which all federal-law claims are 9 eliminated before trial, the balance of factors . . . will point toward declining to exercise 10 jurisdiction over the remaining state-law claims.”) (quoting Carnegie-Mellon Univ. v. 11 Cohill, 484 U.S. 343, 350 n. 7 (1988)). 12 In sum, the remaining state law claims are dismissed for lack of subject matter 13 jurisdiction. If true, Plaintiffs may plead additional facts to establish diversity jurisdiction. 14 Accordingly, dismissal is with leave to amend. 15 V. CONCLUSION 16 For the forgoing reasons, the Court GRANTS Defendants’ motion to dismiss, Dkt. 17 # 7, and DISMISSES Plaintiffs’ complaint, Dkt. # 1, without prejudice and with leave to 18 amend within 21 days of this order. 19 20 Dated this 24th day of March, 2026. A 21
22 The Honorable Richard A. Jones 23 United States District Judge 24