United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
matter is before the Court on Nextel Communications,
Inc.'s Motion to Dismiss for Failure to State a Claim
Which Can Be Granted (ECF No. 7). For the reasons discussed
below, the motion is GRANTED.
United Attorney for the District of Columbia filed a motion
in the Superior Court of the District of Columbia on October
19, 2016. (Compl. at 1; see generally Mem. of Law in
Support of Nextel Communications, Inc.'s Mot. to Dismiss
Pl.'s Compl., ECF No. 7-1 (“Def.'s
Mem.”), Ex. B (Government's Opposition to
Defendant's Pro Se § 23-110 Motion,
United States v. Wilson, No. 2005-FEL-005634 (Super.
Ct. Oct. 19, 2016)). Attached to the motion were exhibits,
see Def.'s Mem., Ex. A (Subpoena, Case No.
I-7086-03), specifically “subpoenas addressed to
‘NEXTEL SUBPOENA COMPLIANCE GROUP[.'”]
(Compl. at 1 (emphasis in original)). According to Plaintiff
The subpoena relevant to this complaint is not signed by
judge or magistrate and is made to the attention of
“BOB HOLLIDAY”. The subpoena instructs “BOB
HOLLIDAY” to appear before the Criminal Division Grand
Jury of the “4th day of February 2003” as a
witness for the grand jury. A separate document attached to
the subpoena and identified as an addendum to the subpoena,
stating Mr. Holliday is instructed that “in lieu of
personal appearance . . . please forward via mail or fax
cellsite/celltower location info for (240)882-9466 and (240)
304-6827 for December 12, 2003 through December 13, 2003.
This document is not signed or dated.
(Id.). Plaintiff's cell phone number was (240)
882-9466. (Id. at 2).
to Plaintiff, “[i]n response to this subpoena NEXTEL
disclosed copies of [P]laintiff's cell site/cell tower
location records.” (Id.). In addition, two of
Defendant's employees “participated in further
disclosure of [P]laintiff's cell location information at
[p]laintiff's public trial” by
“authenticat[ing] the records and explain[ing] the
contents of those records.” (Id. at 4).
“Law enforcement relied very heavily” on the
information Defendant disclosed. (Id.). For example,
the information appeared in an affidavit supporting a warrant
for Plaintiff's arrest, and it was “the sole
evidence at trial to suggest that [P]laintiff was at the
crime scene.” (Id.). Plaintiff has asserted
that, “[b]ased upon this illegally obtain information
[he] was found guilty of murder and sentenced to 66 years in
brings this action under 18 U.S.C. § 2707 and 47 U.S.C.
§§ 205-07. (Compl. at 1). He claims that
Defendant's disclosure of cell site and cell tower
location information violated 18 U.S.C. § 2703 and 47
U.S.C. § 222, (see Compl. at 1, 4-5), resulting
in Plaintiff's “loss of liberty and destruction of
reputation, ” (id. at 5). As compensation for
Defendant's “willful and intentional
violation[s]” of these statutes, Plaintiff demands
“an award of damages in the amount of $1, 500, 000 and
punitive damages of $5, 000, 000.” (Id. at 5).
moves to dismiss under Federal Rule of Civil Procedure
12(b)(6) on the ground that the Complaint fails to state a
claim upon which relief can be granted. (See
generally Def.'s Mem. at 2-5). It argues that
“Plaintiff cannot maintain a cause of action under
[the] statutes” on which he relies. (Id. at
correctly notes, see Compl. at 2, that, generally, a
telecommunications carrier generally “shall only use,
disclose, disclose, or permit access to individually
identifiable customer proprietary network information in its
provision of (A) the telecommunications service from which
such information is derived, or (B) services necessary to, or
used in, the provision of such telecommunications service,
including the publishing of directories.” 47 U.S.C.
§ 222(c)(1). He conveniently omits the introductory
phrase of Section 222 which allows a carrier to disclose
information “as required by law.” Id.
relevant part, 18 U.S.C. § 2707 provides:
Except as provided in section 2703(e), any provider
of electronic communication service, subscriber, or other
person aggrieved by any violation of this chapter in which
the conduct constituting the violation is engaged in with a
knowing or intentional state of mind may, in a civil action,
recover from the person or entity, other than the United