Matthew Alexander v. Verizon Wireless Services, LL

875 F.3d 243
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 13, 2017
Docket16-31227
StatusPublished
Cited by160 cases

This text of 875 F.3d 243 (Matthew Alexander v. Verizon Wireless Services, LL) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matthew Alexander v. Verizon Wireless Services, LL, 875 F.3d 243 (5th Cir. 2017).

Opinion

JENNIFER WALKER ELROD, Circuit Judge:

Matthew Edward Alexander appeals the district court’s' judgment dismissing his complaint for failure to state a' claim against Verizon Wireless Services, L.L.C. under the Stored Communications "Act, 18 U.S.C. §§ 2701-2712. The district bourt adopted the magistrate judge’s report and recommendation stating that Verizon is entitled to statutory immunity and a complete defense because it relied in . “good faith” on an officer’s representations regarding the existence of an emergency. Because we likewise conclude that Verizon acted in good faith, we AFFIRM.

L

In August 2014, around 6:30 a.m., a fire took place at Illie Ray and Christine 1 Nixon,’s home in West Monroe, Louisiana. 2 The Nixons put out the, fire. Around 8:45 a.m,, the Nixons called the police to report the fire as an arson. A detective from the Ouachita Parish Sheriffs Department, Gary Gilley, arrived at their home an hour later.- The Nixons told Detective - Gilley that they believed Matthew Edward Alexander, a former employee of Mr. Nixon’s telecommunications company and someone who had previously brought suit against the company, was responsible for the fire. Mr. Nixon gave Detective Gilley the make, model, and license plate number of Alexander’s car, Alexander’s home address, and Alexander’s cell phone number, all of which Mr. Nixon had from when his company employed Alexander.

Later that day, at 3:00 p.m., Detective Gilley contacted the Law Enforcement Resource Team at Verizon Wireless Services, L.L.C., the service provider for the cell phone number that Mr. Nixon gave Detective Gilley. Detective Gilley spoke with Andrea Cole, a Verizon representative. During the conversation, Detective Gilley told Cole that he needed to know where the subscriber to whom the number belonged had been that day, but not the subscriber’s current location. 3 He also mentioned that he was investigating a fire that had been discovered at 6:30 a.m. and that the individual to whom the number belonged was his main lead. Cole told Detective Gilley that, after discussing the alleged arson, she believed the situation met Verizon’s guidelines for releasing the information he requested and that she would fax him the appropriate paperwork.

Cole sent Detective Gilley an “Emergency Situation Disclosure” form, which Detective Gilley filled out and returned to her. 4 The form includes a question asking whether the request “potentially involve[s] the danger of death or serious physical injury to a person, necessitating the immediate release of information relating to the emergency.” In response, Detective Gilley checked the box next to “yes.” In a box for additional comments, Detective Gilley wrote: “This case is in connection with an Arson, House was set on fire with victims inside.” Detective Gilley included his name, badge number, contact information, and title as a “Senior Investigator” with the Ouachita Parish Sheriffs Department. Moreover, he signed the form under a certification stating as follows: “I certify that the foregoing is true and correct and understand that Verizon Wireless may rely upon this form to make an emergency disclosure to my law enforcement agency or governmental entity ‘pursuant to 18 U.S.C. § 2702(b)(8) and § 2702(c)(4) ”

After receiving the completed form, Verizon provided Detective Gilley with the requested information. 'This included the identity of the ' subscriber, location information, incoming and outgoing call details, and SMS- 5 details. The time- period spanned by these records was, as requested by Detective Gilley, from three days before the. date of the incident to the “present time,” which was interpreted by Verizon as the time the records were sent around-4:15 p.m. that day. All of the information received from Verizon was non-content information. 6

Based in part on the information from Verizon, Alexander was arrested and charged with aggravated arson and two counts of attempted second degree murder. 7 In the criminal proceeding, Alexander moved to suppress the cell phone records obtained from Verizon. A state trial judge granted Alexander’s motion, finding that there were no exigent circumstances justifying Detective Gilley’s actions in obtaining the records without a warrant. Alexander’s criminal proceeding is ongoing. 8

Proceeding pro se, Alexander filed a lawsuit against Verizon in federal district court, alleging various violations of the Stored Communications Act (SCA), 18 U.S.C §§ 2701-2711, and seeking $5,000,000 in damages. Verizon filed a motion to dismiss for failure to state a claim upon which relief can be granted. The motion was referred by the district court to a magistrate judge. After the motion was fully briefed, the magistrate judge issued a report and recommendation in which the judge recommended that the motion be granted. The magistrate judge concluded that, taking all of the facts in Alexander’s complaint as true, Alexander’s complaint establishes on its face that Verizon is statutorily immune from liability and further entitled to a “good faith reliance” affirmative defense. As such, the magistrate judge concluded that dismissal was proper. The report and recommendation also warned in bolded all eaps that a party’s failure to timely object to the report would bar that party, except on grounds of plain error, from attacking any unobjected-to portions of the report accepted by the district judge on appeal. Alexander did not file any written objections, and the district court dismissed Alexander’s lawsuit with prejudice. Alexander timely appealed the district court’s judgment. 9

II.

When a party who is warned of the requirement to file timely objections to a magistrate judge’s report and recommendation fails to file any such objections, and the magistrate judge’s factual findings and legal conclusions are accepted by the district court, our review is for plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded on other grounds by 28 U.S.C. § 636(b)(1). When, however, the district court undertakes an independent review of the record, our review is de novo, despite any lack of objection. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). “This exception to the usual plain-error standard is especially relevant in the context of pro se cases.” 10 Fogarty v.

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Bluebook (online)
875 F.3d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthew-alexander-v-verizon-wireless-services-ll-ca5-2017.