BLACKBURNE-RIGSBY, Associate Judge:
This case involves alleged corporate espionage, and the issue of whether a corporation has a claim for trespass or conversion against another for rummaging through the corporation's trash in search of "trade secrets" and other confidential information. Appellant Greenpeace, Inc. ("Greenpeace") filed suit against appellees,
Greenpeace is a nonprofit corporation headquartered in Washington, D.C. It
In the instant action, Greenpeace alleges two distinct conspiracies committed by two groupings of appellees occurring roughly concurrently between 1998 and 2001. The first conspiracy involves Dow, Ketchum, and BBI. The complaint alleges that, between at least 1998 and 2001, Dow paid Ketchum to help it obtain confidential information from Greenpeace, and that Ketchum, in turn, hired BBI to effectuate that purpose. The second conspiracy involves Sasol, Dezenhall, and BBI. The complaint similarly alleges that, at least between 1998 and 2000, Sasol paid Dezenhall to help it secure information from Greenpeace, and that Dezenhall engaged BBI for the job. BBI referred to its work for Sasol/Dezenhall as the "Lake Charles Project." It is not alleged that Dow/Ketchum and Sasol/Dezenhall colluded together; rather, the two conspiracies are presented as distinct. However, the conspiracies were closely related and had substantial commonalities. In both instances, large corporations are alleged to have engaged BBI for the purpose of procuring confidential information from Greenpeace.
BBI (through the acts of the individual appellees) is alleged to have engaged in, essentially, three invasive methods of intelligence gathering from Greenpeace: (1) "D-lines," which involved recovering documents from the dumpsters and recycling bins that Greenpeace used for its trash; (2) physically infiltrating and breaking into Greenpeace's office, along with monitoring and surveilling individuals associated with Greenpeace; and (3) electronic surveillance by hacking into Greenpeace's computers and wiretapping its telephones. For purposes of this appeal, only the "D-lines"
According to Greenpeace, "D-lines" is BBI terminology referring to the act of acquiring internal documents and records by searching through the dumpsters and recycling bins used by Greenpeace. Between 1998 and May 2000, Greenpeace's office was located at 1436 U Street, Northwest, Washington, D.C. Greenpeace's dumpster was located at ground level, abutting the building. Its recycling bins were located on an elevated loading dock sheltered in the back. Both the trash and recycling bins were on private property. In May 2000, Greenpeace moved its office to 702 H Street, Northwest. This time, the recycling and trash bins were both located inside the building in a locked ground floor room. Greenpeace alleges that, between September 1998 and October 2000, the individual appellees, or their agents,
Greenpeace further alleges that BBI engaged in surveillance of specific individuals associated with Greenpeace and intruded into its offices. Specifically, it accuses BBI of breaking into its U Street office and stealing documents. Further, it claims that BBI engaged in surveillance of Greenpeace on behalf of Dow. And, on behalf of Sasol, BBI hired "research consultant" Mary Lou Sapone to surveil Greenpeace's U Street office while pretending to be a prospective volunteer. Through BBI's actions, Dow/Ketchum and Sasol/Devenhall gained voluminous amounts of confidential information, including: campaign planning and strategy documents, internal communications, legal communications, financial reports and information, and personal employee information. Greenpeace asserts that both Dow/Ketchum and Sasol/Devenhall were aware of BBI's illegal methods, as evidenced by their substantial monetary payments to BBI, interactions and briefings with BBI, and attempts to limit or obfuscate their involvement with BBI.
Greenpeace claims it was ignorant of appellees' actions when they occurred, and that it learned of the misconduct only years later in April 2008, through an investigative reporter for Mother Jones magazine, who obtained the implicating information from one of BBI's former principals seeking to expose its actions. On November 29, 2010, Greenpeace filed its federal Racketeer Influenced and Corrupt Organizations Act ("RICO") claims, 18 U.S.C. §§ 1962(c) and (d) (amended 1988), and supplemental state-law claims in the United States District Court for the District of Columbia. On September 9, 2011, the federal court rejected the RICO claims and dismissed the other claims without prejudice. See Greenpeace, Inc. v. The Dow Chem. Co., 808 F.Supp.2d 262, 274 (D.D.C. 2011). Following dismissal, Greenpeace filed the instant action in Superior Court on October 7, 2011. The running of the statutory limitations period for its state-law claims tolled while the case was pending in federal court. See 28 U.S.C. § 1367(d) (1990); Stevens v. ARCO Mgmt. of Wash. D.C., Inc., 751 A.2d 995, 1003 (D.C.2000) (applying § 1367(d)).
On February 5, 2013, the trial court issued an order granting appellees' motions to dismiss the claims of trespass to common areas, invasion of privacy, and conversion.
This court reviews de novo an appeal from a motion to dismiss a complaint under Rule 12(b)(6). See In re Estate of Curseen, 890 A.2d 191, 193 (D.C.2006). "Like the trial court, this court accepts all of the allegations in the complaint as true, and must construe all facts and inferences in favor of the plaintiff." Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 316 (D.C.2008). "To survive a motion to dismiss, a complaint must set forth sufficient facts to establish the elements of a legally cognizable claim." Woods v. District of Columbia, 63 A.3d 551, 552-53 (D.C.2013). "However, [f]actual allegations must be enough to raise a right to relief above the speculative level." Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1023 (D.C.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (alteration in original). "Furthermore, dismissal under
Greenpeace contends that the trial court erred in finding that, as a tenant in an office building, it could not successfully maintain a claim of trespass to common areas — specifically, the areas of the building where the trash and recycling bins were located. The tort of trespass is defined as "an unauthorized entry onto property that results in interference with the property owner's possessory interest therein." Sarete, Inc. v. 1344 U St. Ltd. P'ship, 871 A.2d 480, 490 (D.C.2005) (emphasis added) (citation and internal quotation marks omitted).
Contrary to Greenpeace's claim, the mere fact that a tenant may have the "authority" to permit access into the common areas does not confer onto the tenant a legally recognized possessory interest in those areas. See, e.g., Young, supra note 8, 752 A.2d at 144 (distinguishing a legally recognized possessory interest from the right to "merely" use the premises). Greenpeace relies on City of Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686, 690 (1994) (en banc), in which the Supreme Court of Washington, considering the legality of Seattle's Residential Housing Inspection Program (designed to "assure the fitness of residential tenancies"), concluded that tenants possessed the "authority" to consent to a search of an apartment building's common areas. Id. (stating in that context that "landlords do not have exclusive authority over the common areas"). The court reasoned that "[i]n order to admit visitors to an apartment, the tenant must necessarily possess the authority to permit guests to pass through the common areas leading to that apartment." Id. Nothing in the opinion addresses whether that authority confers on the tenant a possessory interest with respect to (i.e., the
Greenpeace next challenges the trial court's dismissal of its claim of invasion of privacy by intrusion based on appellees' alleged actions in trailing activists, infiltrating its offices with undercover agents, and riffling through its trash and recycling. Specifically, Greenpeace contends that: (1) the trial court should have applied a three-year statute of limitations to its claim, rather than a one-year statute of limitations; (2) a corporation has a "cognizable privacy interest" sufficient to maintain an invasion of privacy claim; and (3) the complaint pleaded sufficient facts establishing injury. We affirm because the intrusion claim is time-barred by a one-year statute of limitations, and thus we need not address Greenpeace's other two arguments.
"Invasion of privacy is not one tort, but a complex of four, each with distinct elements and each describing a separate interest capable of being invaded." Wolf v. Regardie, 553 A.2d 1213, 1216-17 (D.C.1989). The four constituent torts are: "(1) intrusion upon one's solitude or seclusion ["intrusion"]; (2) public disclosure of private facts ["public disclosure"]; (3) publicity that places one in a false light in the public eye ["false light"]; and (4) appropriating one's name or likeness for another's benefit ["appropriation"]." Id. at 1217 (citing Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 587 (D.C.1985)). Greenpeace's appeal is focused solely on "intrusion." "Unlike some other types of invasion of privacy, intrusion does not require as an essential element the publication of the information obtained." Id. (citing Restatement (Second) of Torts § 652B cmt. a (1977)).
While it appears that no cases from this jurisdiction have explicitly decided what statute of limitations to impose on invasion of privacy claims, the District of Columbia Circuit, in Mittleman v. United States, 322 U.S.App.D.C. 367, 372, 104 F.3d 410, 415 (1997), concluded that invasion of privacy (false light) and defamation should be subject to the same one year statute of limitations under District of Columbia law because both claims protect the same interests, namely, the reputation and personal psyche of the plaintiff. The federal court has consistently applied the one year statute of limitations to invasion of privacy claims arising out of District of Columbia law. See Paul v. Judicial Watch, Inc., 543 F.Supp.2d 1, 10 (D.D.C.2008) (concluding
Greenpeace does not actually dispute that the three constituent invasion of privacy torts of public disclosure, false light, and appropriation are subject to a one-year statute of limitations. Rather, it claims that "intrusion" should be treated differently from the other three and be subject to a three-year statute of limitations, pursuant to D.C.Code § 12-301(2), (3), and (8), because intrusion does not require the key element of "publication" that makes those other torts analogous to defamation. Intrusion, contends Greenpeace, is more akin to a claim of trespass, which is "a tort involving injury to property," and therefore should be governed by a three-year statute of limitations. We disagree and hold that Greenpeace's intrusion claim, along with other invasion of privacy claims, is subject to the one-year statute of limitations applicable "for libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." D.C.Code § 12-301(4).
First, contrary to Greenpeace's contention, the tort of intrusion is broad and is not necessarily limited to an action involving injury to property.
Wolf, supra, 553 A.2d at 1217 (citations omitted). For example, in Wolf, the court identified harassment, peeping through windows where a plaintiff has secluded himself, eavesdropping on private conversations, or examining a plaintiff's private bank account as types of intrusion. Id. at 1217-18. Moreover, the court recognized that, although there are differences between each of the four permutations of invasion of privacy, the four torts also share many of the same elements, and "each involves interference with the interest of the individual in leading ... a secluded and private life[.]" Id. at 1217 n. 5 (alteration in original) (citation and internal quotation marks omitted). Second, having a different statute of limitations for torts all categorized under "invasion of privacy" would be confusing and would frustrate judicial efficiency. Although the term "invasion of privacy" covers four different torts, in many instances, various theories of invasion of privacy are combined in one case. See Pearson v. Dodd, 133 U.S.App.D.C. 279, 283-84, 410 F.2d 701, 705-06 (1969). For these reasons, we decline to hold that intrusion should be subject to a three-year statute of limitations, in contrast to the other three invasion of privacy torts, and hold that Greenpeace's invasion of privacy by intrusion claim is time-barred by the one-year statute of limitations.
Lastly, Greenpeace argues that the trial court erred in dismissing its claim for conversion, premised on the various documents that appellees allegedly took from Greenpeace's trash and recycling containers. Greenpeace contends that this court should recognize a claim of conversion of intangible property, based on
In determining whether a party retains any recognized interest in "private" information that is thrown away, our decision in Danai v. Canal Square Assocs., 862 A.2d 395, 398 (D.C.2004), is instructive. In Danai, appellant Danai filed suit against her commercial landlord for rummaging through her trash and taking a letter from it. Id. at 397-98. On appeal, Danai principally argued that she maintained an expectation of privacy in the contents of the letter that had been placed in the building's collective trash room. Id. at 399-400. We disagreed, observing that "[t]he vast majority of courts have ruled that ... the individual who placed [the] garbage [or trash] for collection either abandoned it or has no reasonable expectation of privacy therein, thus rendering any search and seizure of that trash lawful." Id. at 402 (brackets and alterations in original) (citation and internal quotation marks omitted). Consequently, we held that Danai "both abandoned and relinquished control over the discarded letter" by allowing "her trash to be collected and placed in a locked community trash room over which she has no control." Id. We also explicitly noted that, while "Danai may have desired to keep her personal communications secret and private, hers was a failed attempt." Id. at 403 (citation and internal quotation marks omitted).
Similarly, Greenpeace's actions in placing its "confidential" information in the trash and recycling, located either outside the building (U Street Office) or in a locked communal trash room (H Street Office), constituted abandonment of both the physical documents and its contents. The fact that Greenpeace placed the documents in private trash and recycling containers is irrelevant because there is nothing in the record to suggest that Greenpeace still sought to exert any control over these items or that this was a "special arrangement" intended to make the garbage "inviolate." Id. ("[A]bsent proof that a person has made some special arrangement for the disposition of [her] garbage inviolate, [she] has no reasonable expectation of privacy with respect to it once [she] has placed it for collection." (alteration in original) (citation and internal quotation marks omitted)). Greenpeace admitted that it shared the trash and recycling with other tenants, and that the trash was routinely picked up by a private contractor to be disposed of, thus evidencing that Greenpeace relinquished control and abandoned any legal interest it had over the documents and information placed in the trash. Accordingly, because Greenpeace abandoned the information, its claim of conversion fails as a matter of law.
Whatever view may be taken of the allegations made by Greenpeace, the common law torts alleged by Greenpeace are simply ill-suited as potential remedies. Accordingly, for the reasons stated above, the trial court's order dismissing Greenpeace's complaint is
Affirmed.