Providence County Superior Court, (PC 16-3609), Bennett R.
Gallo Associate Justice.
For
Plaintiff: Jason Boudreau, Pro Se.
For
Defendants: Christopher J. Fragomeni, Esq. Douglas A. Giron,
Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
Flaherty Justice.
The
pro se plaintiff, Jason Boudreau, appeals from a
Superior Court judgment granting summary judgment in favor of
the defendants, Automatic Temperature Controls, Inc. (ATC),
Golden Plains Software, LLC, and Russell
Turner.[1] This case came before the Supreme Court
pursuant to an order directing the parties to appear and show
cause why the issues raised in this appeal should not
summarily be decided. After hearing argument and examining
the memoranda filed by and on behalf of the parties, we
conclude that cause has not been shown and that this case may
be decided without further briefing or argument. For the
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
I
Facts
and Travel
The
plaintiff was employed by ATC from September 2009 until June
2011. Shortly before plaintiff's employment was
terminated, Steve Sorel, ATC's information technology
manager, at the behest of Steve Lussier, ATC's president,
installed a software program called System Surveillance Pro
(SSP) on plaintiff's work computer.[2] SSP was able to
capture intermittent pictures, or "screenshots," of
the content displayed on plaintiff's computer screen,
which were saved to the computer's hard drive and sent to
a remote email address that had been created and managed by
Sorel. The information obtained from plaintiff's work
computer through SSP was disclosed to the Warwick Police
Department. This disclosure in turn led to plaintiff's
arrest and eventual conviction for possession of child
pornography.
After
he was discharged by ATC, plaintiff filed a claim for
unemployment benefits. ATC contested that claim and, on
January 24, 2012, a hearing was held on the matter before a
hearing officer at the Rhode Island Department of Labor and
Training Board of Review. At that hearing, with plaintiff
present, Lussier testified that ATC had installed the
tracking software on plaintiff's work computer. Lussier
further explained that, "[e]very time [plaintiff]
clicked on a website, sent an e-mail, [or] opened a
program," a record of the action was logged and emailed
to Lussier and Sorel.
In 2013
plaintiff filed a lawsuit against Lussier, Sorel, and others
in the United States District Court for the District of Rhode
Island. See Boudreau v. Lussier, 2015 WL 7720503
(D.R.I. Nov. 30, 2015). In that case, plaintiff alleged that
Sorel and Lussier had violated the Electronic Communications
Privacy Act when they installed SSP on the work
computer.[3] See id. at *5. When he was
deposed during the course of that litigation, plaintiff
testified that he was not aware that ATC had installed any
tracking software on his computer "until January 24[,
2012] when Steve Lussier testified that that's what was
on the computer." The District Court granted summary
judgment in favor of the defendants, [4] and the United States Court
of Appeals for the First Circuit affirmed that decision.
See Boudreau v. Lussier, 901 F.3d 65, 76, 77, 78
(1st Cir. 2018).
In
August 2016, plaintiff filed another lawsuit, this time in
the Superior Court. It is that lawsuit that is the subject of
this appeal. In his complaint, plaintiff alleged various
claims under the Rhode Island Wiretap Act, the Rhode Island
Computer Crime Act, the Rhode Island Software Fraud Act, and
state privacy laws, as well as claims for negligence,
fraudulent concealment, products liability, civil liability
for crimes and offenses, and various federal law claims. The
case was removed to the District Court, where ATC filed a
motion to dismiss plaintiff's complaint. The District
Court dismissed plaintiff's federal claims pursuant to
the relevant statute of limitations and remanded the
remainder of the case to the Superior Court to determine
ATC's motion to dismiss with respect to plaintiff's
state law claims. In November 2017, a justice of the Superior
Court heard the arguments of the parties on ATC's motion
to dismiss. ATC argued that G.L. 1956 § 9-1-14(b), which
provides for a limit of three years from the date of an
injury to a person to file an action, was the applicable
statute of limitations. ATC further argued that any injury
that plaintiff was alleged to have suffered occurred in June
2011 but that plaintiff did not file his complaint until
August 2016, rendering his claims time barred. Moreover, ATC
contended that, even if the discovery rule applied to this
case, plaintiff's claims were nonetheless time barred
because plaintiff was aware, or, as a matter of law
objectively should have been aware, of his claims at his
unemployment hearing in January 2012. Finally, ATC argued
that the statute of limitations could not be tolled by
fraudulent concealment because there had been no express
misrepresentation by ATC.
Significantly,
at the request of plaintiff, the court converted the motion
to dismiss into a motion for summary judgment under Rule 56
of the Superior Court Rules of Civil Procedure, because both
parties had referred to matters outside of the pleadings. The
hearing justice assumed, arguendo, that the
discovery rule applied, but he concluded nevertheless that
plaintiff had "more than sufficient knowledge of what
transpired relative to the surveillance of his computer
activities by the end of January 2012 to place a reasonable
person in his place on notice of any potential claim" he
might have had against ATC.
In
coming to that conclusion, the hearing justice found that in
June 2011 ATC installed software on plaintiff's work
computer without his knowledge that intercepted
plaintiff's emails and online activities. However, the
hearing justice also found that the intercepted information
was disclosed to the Warwick Police Department in June 2011,
leading to plaintiff's arrest and ultimate conviction,
and also was disclosed during plaintiff's unemployment
hearing in January 2012. Moreover, the hearing justice noted
that, in 2013, plaintiff was in possession of enough
information to file his complaint in the District Court that
outlined his injuries; and the hearing justice found it
"both curious and revealing" that, in the case now
before us, plaintiff amended his complaint to delete a
factual allegation that ATC had disclosed the contents of
plaintiff's intercepted communications during the
unemployment hearing. Finally, the hearing justice said that
there was no evidence that ATC had fraudulently concealed
anything from plaintiff. Accordingly, the hearing justice
granted summary judgment in favor of defendants. Final
judgment was entered on November 27, 2017. The plaintiff
timely appealed to this Court.[5]
II
Standard
of Review
This
Court reviews a decision granting a party's motion for
summary judgment de novo. DeLong v. Rhode Island
Sports Center, Inc., 182 A.3d 1129, 1134 (R.I. 2018).
"Examining the case from the vantage point of the trial
justice who passed on the motion for summary judgment,
'we view the evidence in the light most favorable to the
nonmoving party, and if we conclude that there are no genuine
issues of material fact and that the moving party is entitled
to judgment as a matter of law, we will affirm the
judgment.'" Sullo v. Greenberg, 68 A.3d
404, 406-07 (R.I. 2013) (brackets omitted) (quoting Sacco
v. Cranston School Department, 53 A.3d 147, 150 (R.I.
2012)). "Although summary judgment is recognized as an
extreme remedy, * * * to avoid summary judgment the burden is
on the nonmoving party to produce competent evidence that
'proves the existence of a disputed issue of material
fact.'" Id. at 407 (internal citation and
brackets omitted) (quoting Mutual Development Corporation
v. Ward Fisher & Company, LLP, 47 A.3d 319, 323
(R.I. 2012)).
III
Discussion
On
appeal, plaintiff urges upon this Court that the hearing
justice erred when he ruled that the claims set forth in
plaintiff's complaint were barred by the three-year
statute of limitations set forth in G.L. 1956 §
9-1-14(b). The plaintiff argues that the discovery rule
should apply to his claims under the Rhode Island Computer
Crime Act and the Software Fraud Act (the computer crime
claims). The plaintiff also maintains that the hearing
justice erred when he found that there was no evidence
indicating that ATC had fraudulently concealed the conduct
that forms the basis of plaintiff's computer crime
claims. Further, plaintiff contends that the continuing
violation doctrine should apply to his claims under the Rhode
Island Wiretap Act.
A
The
Discovery Rule
The
plaintiff argues that the hearing justice erred in finding
that plaintiff was aware of his state computer crime
claims[6] in June 2011, and that "at least by
the end of January 2012, the plaintiff had more than
sufficient knowledge of what transpired relative to the
surveillance of his computer activities to place a reasonable
person in his place on notice of any potential claim against
[ATC]." According to plaintiff, the discovery rule
should have tolled the statute of limitations for his
computer crime claims until some point after August 2013. It
was only after that time, he argues, that he became aware of
the name of the software and its functions and
configurations. We disagree.[7]
Section
9-1-14(b) provides that "[a]ctions for injuries to the
person shall be commenced and sued within three (3) years
next after the cause of action shall accrue, and not
after[.]" We have defined "injuries to the
person" under that statute as follows:
"[T]he phrase 'injuries to the person' as used
in [ยง 9-1-14] is to be construed comprehensively and as
contemplating its application to actions involving injuries
that are other than physical. Its purpose is to include
within that period of limitation actions brought for injuries
resulting from invasions of rights that inhere in man as a
rational being, that is, rights to which one is entitled by
reason of being a person in the eyes of the law. Such rights,
of course, are to be distinguished from those which accrue to
an individual by reason of some peculiar status or by virtue
...