United States District Court, N.D. Alabama, Western Division
NICOLE A. MARCH, Plaintiff;
BEST BUY STORES, LP, et al., Defendants.
L. SCOTT COOGLER, District Judge.
Plaintiff Nicole March ("March") brings this action under the Court's diversity jurisdiction, and alleges various state law claims against Defendants Best Buy Stores, LP ("Best Buy") and Geek Squad Technical Support ("Geek Squad"). March asserts that, while servicing her personal electronic devices, employees of Defendant Best Buy viewed and retained fifty-eight nude photographs of Plaintiff without her permission. The Court has before it both Plaintiff's motion for partial summary judgment (Doc. 70) and Defendant's motion for summary judgment (Doc. 84). Also before the Court is Plaintiff's motion to amend her complaint (Doc. 75), and the parties' motions to strike certain evidence (Docs. 98, 99).
For the reasons set forth, Plaintiff's motion to amend is due to be granted, while her motion for partial summary judgment is due to be denied. Defendant's motion for summary judgment is due to be granted as to Plaintiff's negligence/wantonness claim, and denied as to all remaining claims. Both parties' motions to strike are denied.
Plaintiff March was an employee at the Best Buy store in Tuscaloosa, Alabama from April 2011 until late 2013. Best Buy is a large consumer electronics retailer, while Geek Squad is a wholly-owned subsidiary that provides in-store customer assistance concerning customers' personal electronic devices. Members of the Geek Squad worked in an area of the Best Buy store referred to as the "Geek Squad precinct." While March worked at Best Buy's Tuscaloosa location, she was not a member of the Geek Squad.
On multiple occasions, Plaintiff March has posed nude for photographs or has personally taken photographs of herself while nude. March stored these photographs on her personal electronic devices, including several external hard drives. On at least two occasions, March had external hard drives containing nude photographs serviced by the Geek Squad at Best Buy's Tuscaloosa location. In August 2011, March brought two external hard drives ("Hard Drive 1" and "Hard Drive 2") to Geek Squad for data recovery services. Hard Drive 1 was examined and later returned to March as functional. Hard Drive 2 was sent off-site in an effort to recover the data stored on it. However, the hard drive's contents could not be accessed and it was returned to March in its non-functional capacity. Hard Drive 2's contents remain inaccessible. March paid for these services and received a customer ticket documenting the transaction.
In March 2013, March brought a third external hard drive ("Hard Drive 3") into the Tuscaloosa Best Buy for service by Geek Squad. While in the store, March purchased a fourth external hard drive ("Hard Drive 4"), and requested that Geek Squad transfer the contents of Hard Drive 3 to Hard Drive 4. March gave her devices to a Geek Squad member named John Young ("Young") to complete the data transfer. March did not pay for this transfer service, and received no customer ticket documenting the services. However, March contends that her manager at the Best Buy location, James Meggs ("Meggs"), told her that Best Buy would complete the data transfer for March should she buy the new external hard drive at Best Buy's Tuscaloosa location. Best Buy asserts that Meggs never made such a promise, and that, at most, the free transfer service was discussed after March purchased Hard Drive 4.
On May 11, 2013, Plaintiff March received a Facebook message from Nathan Smith ("Smith"). Smith was March's former coworker, and was a Geek Squad employee at the Tuscaloosa Best Buy until March 15, 2013. In the Facebook message, Smith told March that he was in possession of "about 50 or so" nude photographs of her. Smith initially told March that he had obtained the photographs from accessing a link to a torrent website, and claimed the link was forwarded to him by a former Geek Squad employee who had last worked at the Tuscaloosa Best Buy in early 2012. March traveled to Smith's house that night to view the photographs. After viewing the photographs on Smith's computer, Smith downloaded the fifty-eight photographs at issue from his computer to a USB flash drive (the "March Flash Drive"). Smith then gave March the flash drive.
Later that night, Plaintiff March received a Facebook message from Charles Scarbrough ("Scarbrough"), who was also a Geek Squad employee at the Tuscaloosa Best Buy. Scarbrough informed March that he had heard of March's predicament, and that he would personally find out whether anyone at the Geek Squad precinct had removed photographs from one of March's external hard drives without her permission. On May 17, 2013, March received another Facebook message from Scarbrough, stating that he "had found the culprit" and had appropriately disciplined that person. However, Scarbrough asked March to "do him a favor" by not asking who the Geek Squad employee was that took the photographs. March never responded to this Facebook message. Scarbrough now asserts that he in fact never found the person responsible for removing March's photographs, and that he told March otherwise in an effort to ease her mind. On May 20, 2013, March filed a police report concerning the matter.
In the days immediately following May 11, 2013, March told several supervisors and coworkers at Best Buy about the apparent theft of her photographs. According to Best Buy, an internal investigation was launched at that time, but to no conclusive result. Following the filing of the above-styled action on August 8, 2013, Best Buy reopened the investigation. Stephanie Miller ("Miller"), a human resources representative at Best Buy, led the investigation. While Miller was unable to determine if a Geek Squad employee actually removed photographs from one of March's personal devices, she did uncover that "customer data"-apparently March's nude photographs-were transferred to a personal flash drive using a Geek Squad computer. Scarbrough was logged into the computer at the time of the transfer. As a result, Scarbrough was terminated on July 13, 2014.
While it is undisputed that March's photographs were transferred to the March Flash Drive using a computer in the Geek Squad precinct, the parties dispute the details surrounding this transfer. Relying on Smith's Facebook message, March initially alleged that the theft occurred in August 2011. However, Smith has since changed his story about how he came into possession of the photographs. Smith now claims that he received the pictures from Scarbrough. Specifically, Smith now states that, in early March of 2013, Scarbrough showed Smith the photos, which were contained in a hidden file on a computer in the Geek Squad precinct. According to Smith, Scarbrough "alluded" that it was Matt Cox ("Cox"), another Geek Squad employee at the Tuscaloosa Best Buy, who removed the photographs from one of March's electronic devices. See Doc. 85-11, at 73-75. Scarbrough then copied the pictures to the March Flash Drive for Smith to take with him. This is the same flash drive that Smith later gave to March when she visited his home to view the photographs on May 11, 2013. Both Scarbrough and Cox deny any involvement in downloading or viewing the photographs at issue. Because Smith has recanted his earlier story as to how he came into possession of March's photographs, March now contends that the theft occurred when she brought Hard Drive 3 in for servicing in March 2013.
Best Buy presents evidence in the form of electronically stored information ("ESI") that seemingly contradicts Smith's new story. While Best Buy concedes that a Geek Squad computer was used to transfer March's nude photographs to the March Flash Drive on March 8, 2013, Best Buy argues that the ESI evidence shows that Hard Drive 3 was not the source of these photographs. Rather, Best Buy contends that an unidentified USB flash drive (the "Mystery Flash Drive") containing all 58 photographs at issue was inserted into a Geek Squad computer on March 8, 2013. The photographs were then copied directly from the Mystery Flash Drive to the March Flash Drive. In other words, the photographs were never saved to a Geek Squad computer, and instead passed directly from the Mystery Flash Drive to the March Flash Drive, with the Geek Squad computer merely serving as the conduit for the transfer of files.
Furthermore, Best Buy offers ESI evidence showing that three days earlier, on March 5, 2013, at least some of the photographs at issue were transferred from yet another unidentified flash drive to the Mystery Flash Drive, with March's own laptop acting as the medium for the transfer. Thus, Best Buy essentially presents a version of the facts in which March's photographs moved from some unknown storage device to the Mystery Flash Drive via March's laptop, then from the Mystery Flash Drive to the March Flash Drive via the Geek Squad computer. While March represented during discovery that her laptop was not serviced by the Geek Squad in March 2013, Best Buy contends that Plaintiff March personally worked on her electronic devices while in the employees-only section of the Geek Squad precinct in March of 2013. See Doc. 80-14, at 18-19. Finally, Best Buy also points to ESI evidence showing that the first time March connected Hard Drive 3 to her laptop to back up the laptop's contents was March 14, 2013, which is at least six days after the photographs were allegedly removed from Hard Drive 3 without March's permission.
Also at issue is whether supervisors at Best Buy's Tuscaloosa location appropriately enforced Best Buy's policies concerning the privacy of customers' files and data. According to March, Geek Squad employees routinely used personal flash drives when servicing customers' electronic devices, which was in violation of company policy. March also presents evidence that Geek Squad employees used flash drives and common desktop computers to transfer customer data from one device to another, despite the fact that Best Buy policy required that a specially designed transfer device-dubbed "the Mule"-be used when effectuating transfers of customers' files. Finally, March asserts that Geek Squad management openly tolerated "cheating" during quiz-based training sessions, since employees routinely shared answers with one another in violation of the training sessions' rules. Best Buy argues that, to the extent that such conduct ever occurred, it ceased following the hiring of Wenetta Stallworth ("Stallworth") as the Tuscaloosa location's new assistant manager in early 2013.
II. Standard of Review
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Avenue CLO Fund, Ltd. v. Bank of Am., NA, 723 F.3d 1287, 1294 (11th Cir. 2013). There is a "genuine dispute" as to a material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence but must simply determine whether there are any genuine issues that should be resolved at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give deference to the non-moving party by "considering all of the evidence and the inferences it may yield in the light most favorable to the nonmoving party." McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005)). However, "unsubstantiated assertions alone are not enough to withstand a motion for summary judgment." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). In making a motion for summary judgment, "the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case." Id. Although the trial courts must use caution when granting motions for summary ...