Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-24-2008

Bansal v. Server Beach
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4476




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Recommended Citation
"Bansal v. Server Beach" (2008). 2008 Decisions. Paper 800.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/800


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                                                      NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                          No. 07-4476
                          ___________

                      AKHIL BANSAL,

                                          Appellant

                                 v.

                      SERVER BEACH;
                      REYNOLDS & REYNOLDS;
                      MICROSOFT CORPORATION
           ____________________________________


         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
              (D.C. Civil Action No. 06-cv-03932)
          District Judge: Honorable Norma L. Shapiro
           ____________________________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                          July 22, 2008


Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges


                 (Opinion filed : July 24, 2008)
                          ___________


                           OPINION
                          ___________
PER CURIAM

              Akhil Bansal is confined at the Federal Detention Center in Philadelphia.

In 2007, proceeding pro se and in forma pauperis (“IFP”), he filed a lawsuit against

Server Beach, Reynolds & Reynolds, and Microsoft, alleging that they unlawfully gained

access to his e-mail account in violation of the Stored Communications Act, 18 U.S.C. §

2701 et seq. (“SCA” or “the Act”), the Pennsylvania Wiretapping Act, 18 Pa.C.S. 5741 et

seq., and his right to privacy under common law. Bansal now appeals the District Court’s

dismissal of his action.

              Because we write for the parties, we state only the facts most pertinent to

our decision. At some point, Bansal set up an e-mail account with Microsoft’s “Hotmail”

service. In 2006, he was convicted in federal court of multiple counts related to his

illegal, internet sales of pharmaceuticals. In the course of the criminal investigation, the

government sought several subpoenas and warrants, ordering Microsoft to divulge emails

and to furnish information regarding Bansal’s account. Microsoft complied with the

resulting court orders. In February 2006, evidently through the discovery associated with

his criminal trial, Bansal learned that Server Beach and Reynolds had accessed his email

account. Apparently, the defendants’ Internet Protocol (“IP”) addresses appeared on a

registration sheet detailing all the addresses that had accessed his Hotmail user account.

Thereafter, he brought the instant lawsuit.

              The defendants filed motions to dismiss pursuant to Fed. R. Civ. P.

                                              2
12(b)(6). Microsoft argued that it was excepted from liability under the SCA, because it

was the communications service provider for his user account, and because it divulged

emails and account information pursuant to a court order. Server Beach and Reynolds

argued that Bansal’s complaint failed on its face, because it failed to allege that they

accessed his account “with a knowing or intentional statement of mind.” See 18 U.S.C.

§§ 2701(a) & 2707. As to Microsoft, the District Court dismissed the action as frivolous

pursuant to 28 U.S.C. § 1915(e). Moreover, concluding that Bansal failed to state a

claim under the SCA, and declining to exercise supplement jurisdiction pursuant to 28

U.S.C. § 1367 over his remaining state law claims, the District Court granted the motions

to dismiss as to Server Beach and Reynolds. Bansal filed motions for reconsideration,

but they were denied. Thereafter, he timely filed a notice of appeal.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over the District Court’s order dismissing claims under Fed. R. Civ. P. 12(b)(6).

See Sands v. McCormick, 

, 267 (3d Cir. 2007). In order to survive a motion

to dismiss, a plaintiff must allege in his complaint “‘enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element[s]” of a cause of

action. Phillips v. County of Allegheny, 

, 234 (3d Cir. 2008)(quoting Bell

Atlantic Corp. v. Twombly, 

, 1965 (2007)). “[A] formulaic recitation of

the elements . . . will not do.” 

              The SCA prohibits a party from “intentionally access[ing] without


                                               3
authorization a facility through which an electronic communication service is provided; . .

. or intentionally exceed[ing] an authorization to access that facility; . . . thereby

obtain[ing] . . . access to . . . [an] electronic communication while it is in electronic

storage . . . .” 18 U.S.C. § 2701(a). The Act authorizes a private right of action for any

person “aggrieved by any violation of this chapter in which the conduct constituting the

violation is engaged in with a knowing and intentional state of mind.” See 

excepts “entit[ies] providing a wire or electronic communications service,” and we have

interpreted the Act as exempting searches of stored electronic communications by the

party providing the communications service. See 18 U.S.C. § 2701(c); Fraser v.

Nationwide Mutual Insurance Co., 

, 115 (3d Cir. 2003). Furthermore,

parties acting pursuant to a court order are not liable under the statute. See 18 U.S.C. §

2707(e).

              As to Microsoft, we agree with the District Court that it has a complete

defense against Bansal’s claims, because it divulged his emails pursuant to a court order

arising from his criminal prosecution. See 18 U.S.C. § 2707(e). Moreover, as the

communications service provider for Bansal’s email account, Microsoft is excepted from

liability under the SCA. See 

. Accordingly, the District Court

correctly dismissed Bansal’s claims against Microsoft as frivolous pursuant to 28 U.S.C.

§ 1915(e).

              Furthermore, Bansal’s lawsuit cannot succeed against Server Beach or


                                               4
Reynolds, because his complaint fails to allege that these defendants accessed his account

“with a knowing and intentional state of mind.” See 18 U.S.C. § 2701(a). Bansal baldly

asserts that the defendants “unlawfully” accessed his account. But, he sets forth no facts

that, taken as true, would raise a reasonable expectation that discovery would reveal

evidence that Server Beach and/or Reynold “knowingly or intentionally” accessed his

Hotmail user account. Moreover, we agree with the Appellees that Bansal did not

properly request leave to amend his complaint, see Ranke v. Sanofi-Synthelabo, Inc., 

, 206(3d Cir. 2006), and, as this is not a civil rights case, the District Court was

not obligated to sua sponte grant him leave to amend prior to dismissing the case for

failure to state a claim. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 

, 253 (3d Cir. 2007). Accordingly, we affirm the District Court’s dismissal of

Bansal’s complaint for failing to state a claim against defendants Server Beach and

Reynolds.1




   1
       Bansal’s Motion to Strike Supplemental Appendix is denied as moot.

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