PAIGE S. DOMONEY, Plaintiff,
CLASS LTD, Defendant
MEMORANDUM AND ORDER
Sam A. Crow, U.S. District Senior Judge
This case comes before the Court on Plaintiff’s motion to dismiss the Amended Counterclaim filed by the Defendant.
The Court finds the following facts to be uncontested for purposes of this motion.
Plaintiff was hired by Defendant in October of 2011. Plaintiff signed Defendant’s "Confidentiality Agreement, " which defines "Confidential Information" to include personnel information such as “performance reviews and disciplinary actions.” That agreement prohibits disclosure of “Confidential Information” for any reason other than the performance of job duties, and states that any prohibited disclosure constitutes misuse which could result in legal action against the employee.
In January of 2013, Plaintiff notified Defendant of her medical condition and of her need for FMLA leave. Within a week thereafter, Defendant’s CEO and Defendant’s Vice President for Administration conducted a confidential personnel meeting in an attempt to resolve ongoing workplace disputes between Plaintiff and a co-employee. Plaintiff attended the meeting and surreptitiously recorded the conversation by use of her cell phone. She then sent a copy of the recording to her mother, using her work email to do so. Dk. 19, p. 5-6. That same day, Defendant terminated Plaintiff for the stated reason of “department restructuring.”
Thereafter, Plaintiff sued Defendant for allegedly hacking into her personal email and Facebook accounts without her permission in violation of the Stored Communications Act, 18 U.S.C. §§ 2701 et seq., for invading her privacy, and for violating the FMLA. A proposed amendment seeks to add an ADA claim. Defendant answered and counterclaimed. Defendant’s amended counterclaim generally asserts that Plaintiff violated the Federal Wiretap Act by surreptitiously recording the February 5th meeting and by sending a copy of that recording to a third party. The motion to dismiss is directed to that counterclaim.
Motion to Dismiss Standards
“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's ... complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). The court accepts all well-pled factual allegations as true and views these allegations in the light most favorable to the nonmoving party. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert. denied, 130 S.Ct. 1142 (2010). The court, however, is not under a duty to accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884 (2009). “Thus, mere ‘labels and conclusions' and ‘formulaic recitation of the elements of a cause of action’ will not suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 2012 WL 364058, at *2 (10th Cir. Feb. 6, 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The Supreme Court recently clarified the requirement of facial plausibility:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its face.” Id. [ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a Defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a Defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557.
Iqbal, 129 S.Ct. at 1949. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[C]ourts should look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief .” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007). “While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 2012 WL 364058, at *3 (citations omitted).
Matters Outside the Pleading
In evaluating a Rule 12(b)(6) motion to dismiss, the court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint. Archuleta v. Wagner, 523 F.3d 1278, 1281 (10th Cir. 2008). In considering the complaint in its entirety, the Court also examines documents “incorporated into the complaint by reference, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and documents attached to the complaint, Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012) (quotations and citations omitted). On a motion to dismiss, “[w]here a party has moved to dismiss under Rule 12(b)(6) for failure to state a claim … and matters outside of the pleadings have been ...