Lori Bokenfohr v. Cynthia Gladen

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 4, 2020
• Docket: 19-35992
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORI BOKENFOHR, No. 19-35992

Plaintiff-Appellant, D.C. No. 3:17-cv-01870-BR

v. MEMORANDUM* CYNTHIA GLADEN,

Defendant,

and

CHRISTINE GUIDERA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Submitted October 9, 2020** Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON,*** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. Judge.

Appellant Lori Bokenfohr appeals the district court’s order granting

summary judgment in Appellee Christine Guidera’s favor on four claims. The

claims arose from Guidera’s involvement in her friend Cynthia Gladen’s1 alleged

access, possession, and distribution of Bokenfohr’s personal electronic data.

Bokenfohr’s claims against Guidera are for invasion of privacy under Oregon

Revised Statutes § 30.831, conversion, intrusion upon seclusion, and replevin.

After de novo review, we affirm the judgment of the district court.2 See Kraus v.

Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1042–43

(9th Cir. 2009) (citing Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008)).

The district court properly granted Guidera’s motion for summary judgment

on Bokenfohr’s state law invasion of personal privacy claim. Section 30.831(1)(d)

provides a cause of action when, “[w]ithout the consent of the plaintiff, the

defendant disseminated a photograph, motion picture, videotape or other visual

recording of the plaintiff in a state of nudity, and the defendant knew that at the

time the visual recording was made or recorded the plaintiff was in a place and

1 Bokenfohr’s claims against Cynthia Gladen are not at issue in this appeal. 2 We grant Bokenfohr’s Motion to Strike (docket entry no. 28) to the extent it seeks to strike portions of Guidera’s supplemental excerpts of record that were not part of the district court record. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing Fed. R. App. P. 10(a)).

2 circumstances where the plaintiff had a reasonable expectation of personal

privacy.” Or. Rev. Stat. § 30.831(1)(d). Because the single photograph that

Guidera disseminated did not depict Bokenfohr in a “state of nudity” as required

for a violation of the statute, Bokenfohr’s claim fails.

Guidera next argues that Bokenfohr’s conversion claim is preempted by the

Copyright Act. See G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc.,

958 F.2d 896, 904 (9th Cir. 1992) (“Copyright preemption is both explicit and

broad: 17 U.S.C. § 301(a) prohibits state-law protection for any right equivalent to

those in the Copyright Act.”). Although the district court did not address

Bokenfohr’s non-photographic data in its analysis, we conclude that the claim is

nonetheless preempted.3 All of Bokenfohr’s electronic data—photographic and

non-photographic—“come[ ] within the subject matter of copyright,” and the state

law rights that she seeks to enforce “are ‘equivalent to . . . the exclusive rights

within the general scope of copyright.’” Grosso v. Miramax Film Corp., 383 F.3d

965, 968 (9th Cir. 2004) (quoting Del Madera Props. v. Rhodes & Gardner, Inc.

820 F.2d 973, 976 (9th Cir. 1987), overruled on other grounds by Fogerty v.

Fantasy, Inc., 510 U.S. 517 (1994)).

3 Remand to address this matter is unnecessary because “[w]e have discretion to decide whether to address an issue that the district court did not reach if the question is a purely legal one and the record has been fully developed prior to appeal.” Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir. 1986).

3 Bokenfohr’s third claim, for intrusion upon seclusion, fails because Guidera

merely encouraged Gladen’s actions and knowingly received the improperly

obtained data. Oregon recognizes the tort of invasion of privacy based on an

"intrusion upon seclusion." Mauri v. Smith, 929 P.2d 307, 310 (Or. 1996). To

establish this claim, a plaintiff must prove three elements: “(1) an intentional

intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or

private affairs or concerns, (3) which would be highly offensive to a reasonable

person.” Id. The district court found that Guidera’s conduct was insufficient to

establish a claim. We agree. Viewed in the light most favorable to Bokenfohr,

Guidera’s mere encouragement and review of the photos and information obtained

from the Solid State Drive (SSD) does not satisfy the element of “intentional

intrusion.” Gladen—not Guidera—allegedly obtained the SSD without

Bokenfohr’s knowledge or consent. Further, Gladen delivered the SSD to a

computer technician and directed him to reformat the data in a way that made it

compatible with her personal computer. Because the plaintiff bears the burden of

establishing each element of the tort, id. at 311, Bokenfohr’s failure to prove the

first element means that she cannot prevail.

Lastly, the district court correctly determined that Bokenfohr’s replevin

claim is moot because there is no genuine issue of material fact as to whether

Guidera still possesses Bokenfohr’s data. See Anderson v. Liberty Lobby, Inc., 477

4 U.S. 242, 251–52 (1986) (explaining that a genuine issue of material fact exists

when “the evidence presents a sufficient disagreement to require submission to a

jury” but not when “it is so one-sided that one party must prevail as a matter of

law”).

Accordingly, we affirm the judgment of the district court.

AFFIRMED.