Doe, Jane v. Smith, Jason ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1903
JANE DOE,
Plaintiff-Appellant,
v.
JASON SMITH,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-3173—Richard Mills, Judge.
____________
ARGUED OCTOBER 27, 2005—DECIDED NOVEMBER 21, 2005
____________
Before EASTERBROOK, EVANS, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. When she was 16, Jane
Doe (not her real name) engaged in consensual sexual
relations with Jason Smith, who was a year older. Smith
had set up a hidden video camera and recorded the two
in bed. After the couple stopped dating, Smith circulated
the tape at their high school. At oral argument Doe’s
counsel maintained that Smith distributed copies by
email and that at least one of the recipients posted the data
on the Internet. Doe filed this suit seeking compensation for
the injury caused by this invasion of her privacy. Doe and
Smith are citizens of Illinois, so the litigation is in federal
court only because one of her claims is that the video
2 No. 05-1903
recording is an unauthorized interception and its disclosure
forbidden by the federal wiretapping statute, 18 U.S.C. §§
2510-22. Section 2520 creates a private right of action for
damages. Yet the district court dismissed the suit under
Fed. R. Civ. P. 12(b)(6), ruling that Doe’s complaint is
defective because it does not allege in so many words that
the recording was an “interception” within the meaning of
§2510(4).
The complaint does not maintain that Smith “intercepted”
anything. Yet pleadings in federal court need not allege
facts corresponding to each “element” of a statute. It is
enough to state a claim for relief—and Fed. R. Civ. P. 8
departs from the old code-pleading practice by enabling
plaintiffs to dispense with the need to identify, and plead
specifically to, each ingredient of a sound legal theory. See,
e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002);
McDonald v. Household International, Inc., No. 04-3259
(7th Cir. Sept. 29, 2005); Bartholet v. Reishauer A.G.
(Zürich), 953 F.2d 1073 (7th Cir. 1992). Plaintiffs need not
plead facts; they need not plead law; they plead claims for
relief. Usually they need do no more than narrate a griev-
ance simply and directly, so that the defendant knows what
he has been accused of. Doe has done that; it is easy to tell
what she is complaining about. Any district judge (for that
matter, any defendant) tempted to write “this complaint is
deficient because it does not contain. . .” should stop and
think: What rule of law requires a complaint to contain that
allegation? Rule 9(b) has a short list of things that plaintiffs
must plead with particularity, but “interception” is not on
that list.
Complaints initiate the litigation but need not cover
everything necessary for the plaintiff to win; factual details
and legal arguments come later. A complaint suffices if any
facts consistent with its allegations, and showing entitle-
ment to prevail, could be established by affidavit or testi-
mony at a trial. See, e.g., Hishon v. King & Spalding, 467
No. 05-1903 3
U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957).
The consistency proviso is why some complaints may be
dismissed pronto: litigants may plead themselves out of
court by alleging facts that defeat recovery. See, e.g.,
Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002). Com-
plaints also may be dismissed when they show that the
defendant did no wrong. For example, a complaint alleging
that a sports team violated the antitrust laws by restricting
peanut sales on the stadium’s grounds is defective because
the antitrust laws do not entitle one person to sell goods on
someone else’s property. See Elliott v. United Center, 126
F.3d 1003 (7th Cir. 1997). Doe has not pleaded herself out
of court; none of the complaint’s allegations shows that
Smith is sure to succeed. The complaint does not say, for
example, that she consented to the recording. Doe will have
to prove some facts that she did not plead, but that’s
common. Nor is her claim legally deficient. To see this one
has only to step through the statute.
The prohibitions bearing on Doe’s allegations are in
§2511(1):
(1) Except as otherwise specifically provided in this
chapter any person who—
(a) intentionally intercepts, endeavors to
intercept, or procures any other person to
intercept or endeavor to intercept, any wire,
oral, or electronic communication;
...
(c) intentionally discloses, or endeavors to
disclose, to any other person the contents of
any wire, oral, or electronic communication,
knowing or having reason to know that the
information was obtained through the
interception of a wire, oral, or electronic
communication in violation of this subsec-
tion; . . .
4 No. 05-1903
. . . shall be subject to suit as provided in subsection
(5).
The first question is whether Doe could show, without
contradicting any of the complaint’s allegations, that Smith
captured a “wire, oral, or electronic communication”. The
answer is yes. Doe may be able to establish that the
recording had a sound track and that she had an expecta-
tion of privacy, the two ingredients of the statutory defini-
tion: “ ‘oral communication’ means any oral communication
uttered by a person exhibiting an expectation that such
communication is not subject to interception under circum-
stances justifying such expectation, but such term does not
include any electronic communication”. 18 U.S.C. §2510(2).
A silent film would be outside this definition, but most
video recorders capture sound as well.
Next comes the question whether Smith “intercepted” the
oral communication. This defined term “means the aural or
other acquisition of the contents of any wire, electronic, or
oral communication through the use of any electronic,
mechanical, or other device.” 18 U.S.C. §2510(4). If Doe and
Smith engaged in “oral communication” in Smith’s bedroom,
then its acquisition by a video recorder—an “electronic . . .
device”—is covered. And if the interception was forbidden
by §2511(1)(a), then its disclosure was forbidden by
§2511(1)(c).
Liability generally requires proof that the interception
or disclosure occurred in or through the means of interstate
commerce, such as the telephone network. See Doe v. GTE
Corp., 347 F.3d 655 (7th Cir. 2003). A home taping followed
by a viewing at the local high school does not seem con-
nected to interstate or international commerce. But if as
plaintiff suspects Smith dispatched copies by email, which
uses the interstate communications network, then the
problem is solved. Smith contends that, if a link to inter-
state commerce cannot be shown, or if Doe relies on a
No. 05-1903 5
subsection under which it need not be shown, then the
statute is unconstitutional. See United States v. Morrison,
529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549(1995). That gets ahead of the game; there is no need to
reach constitutional questions before we know what Doe
will be able to demonstrate. Moreover, if Smith wants to
call the constitutionality of this statute into question, then
he must alert the district court and arrange for notice to be
given to the Attorney General, so that the federal govern-
ment may intervene to defend the legislation. See 28 U.S.C.
§2403(a); Fed. R. Civ. P. 25(c). That has not been done.
The statute provides some defenses, such as consent. Any
one private participant’s consent usually suffices. 18 U.S.C.
§2511(2)(d). Smith obviously consented to the recording, but
that does not justify dismissing the suit. Complaints need
not anticipate or attempt to defuse potential defenses. See,
e.g., Gomez v. Toledo, 446 U.S. 635 (1980); United States
Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir.
2003). What’s more, the defense of single-party consent has
limits. The full text of this subsection reads:
It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a
wire, oral, or electronic communication where such
person is a party to the communication or where
one of the parties to the communication has given
prior consent to such interception unless such
communication is intercepted for the purpose of
committing any criminal or tortious act in violation
of the Constitution or laws of the United States or
of any State.
Doe may be able to show that Smith made the recording “for
the purpose of committing any criminal or tortious act”—for
example, the creation of child pornography, see 720 ILCS
5/11-20(a)(1), or the intentional infliction of emotional
distress. Doe presented several claims under state law; the
district court relinquished supplemental jurisdiction
6 No. 05-1903
without deciding whether any of these theories is tenable.
See 28 U.S.C. §1367(c)(3). Success on one of the state-law
theories would prevent Smith from using the defense under
§2511(2)(d). Because the state and federal issues are
intertwined, both should be resolved in federal court.
On remand, the district judge must revisit the ques-
tion whether the plaintiff should be allowed to proceed
anonymously. The judge granted her application to do so
without discussing this circuit’s decisions, which disfavor
anonymous litigation. See Doe v. Blue Cross, 112 F.3d 869,
872 (7th Cir. 1997); Doe v. Sheriff of DuPage County, 128
F.3d 586, 587 (7th Cir. 1997); Doe v. Chicago, 360 F.3d 667,
669 (7th Cir. 2004). The public has an interest in knowing
what the judicial system is doing, an interest frustrated
when any part of litigation is conducted in secret. See
Baxter International, Inc. v. Abbott Laboratories, 297 F.3d
544 (7th Cir. 2002); Union Oil Co. of California v. Leavell,
220 F.3d 562 (7th Cir. 2000). Plaintiff was a minor when
the recording occurred but is an adult today. She has denied
Smith the shelter of anonymity—yet it is Smith, and not the
plaintiff, who faces disgrace if the complaint’s allegations
can be substantiated. And if the complaint’s allegations are
false, then anonymity provides a shield behind which
defamatory charges may be launched without shame or
liability.
Everyone at the high school who saw the recording
already knows who “Doe” is, and most people acquainted
with Smith could find out whether or not they had seen the
recording. (Their dating relationship was no secret.) Now
perhaps anonymity still could be justified if the tape has
been circulated more widely (as counsel asserted at oral
argument), and disclosure would allow strangers to identify
the person in the recording and thus add to her humiliation.
That question should be explored in the district court—and,
if the judge decides that anonymous litigation is inappropri-
ate, the plaintiff should be allowed to dismiss the suit in
No. 05-1903 7
lieu of revealing her name.
The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-05