Goodnight v. Hammons

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

KELLI GOODNIGHT, )

)

Plaintiff, )

)

v. ) Case No. CIV-25-475-D

)

JENNIFER M. HAMMONS, )

)

Defendant. )

ORDER

Before the Court is Defendant’s Motion to Dismiss, with Brief in Support [Doc. No.

5]. Defendant seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth

below, the motion is granted in part and denied in part.

Background

According to Plaintiff’s complaint, Defendant Jennifer Hammons “illegally and

without authorization” accessed her husband, Christopher Hammons’, Apple watch and

discovered Plaintiff’s nude and sexually suggestive photographs. Defendant then sent text

messages to Plaintiff “threaten[ing] [to] blackmail[]” her by exposing the romantic

relationship with Mr. Hammons to third parties and the public if “Plaintiff didn’t obey[.]”

Defendant “took screenshots” of the “threatening” text messages, including various

intimate images, and sent them to Averi Carriger, a legal assistant working in Plaintiff’s

office. Plaintiff further alleged “[u]pon information and belief,” that “Defendant Hammons

displayed and/or disseminated Plaintiff’s intimate Images to additional third parties.”

On June 9, 2024, the situation escalated. Defendant used “stolen passwords” to

“hack[]” into Mr. Hammons’ email and discover more of Plaintiff’s nude or partially nude

images. She then “downloaded, screenshotted, screen recorded, and/or transferred” the

images to her personal device and “displayed/disseminated them to third parties.”

Between July 2024 and February 2025, Plaintiff “received unprecedented attention

from strangers on social media,” receiving more than 600 new “friend requests” and over

50 direct messages.1

Plaintiff states that she has suffered “emotional and psychological injuries resulting

from Defendant Hammons’s conduct[.]” She brings the following five claims: (1) violation

of 15 U.S.C. § 6851 for disclosure of intimate images; (2) violation of Okla Stat. tit,

21 § 1040.13b (which Plaintiff argues provides a state-based private cause of action for the

nonconsensual dissemination of intimate images); (3) intrusion upon seclusion / invasion

of privacy, (4) public disclosure of private facts; and (5) intentional infliction of emotional

distress.

Standard of Decision

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court will accept as true all well-

pled factual allegations and construe them in the light most favorable to Plaintiff. Peterson

v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010).

1 After learning of Defendant’s behavior, Mr. Hammons confronted Defendant, asking her

to delete the images. Defendant allegedly responded, “Fuck you, I’m gonna use these to

my advantage,” in an apparent reference to “pending divorce negotiations.”

A complaint “attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations,” but it does need “more than labels and conclusions.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The complaint must “contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. “[A] formulaic recitation of the elements of a cause of action” does not provide grounds

of a party’s entitlement to relief. Twombly, 550 U.S. at 555.

“[T]he tenet that a court must accept as true all of the allegations contained in the

complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678; see also

Twombly, 550 U.S. at 558 (“[O]n a motion to dismiss, courts ‘are not bound to accept as

true a legal conclusion couched as a factual allegation.’” (citation omitted)). Courts may

“disregard conclusory statements and look only to whether the remaining, factual

allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d

1188, 1191 (10th Cir. 2012).

Analysis

The Court addresses each of the complaint’s causes of action in turn.

1. Claim 1 – 15 U.S.C. § 6851

15 U.S.C. § 6851 provides a private cause of action for a person whose “intimate

visual depictions” are disclosed “by a person who knows that, or recklessly disregards

whether, the individual has not consented to such disclosure[.]” 15 U.S.C.

§ 6851(b)(1)(A).2 The statute allows for certain exceptions—such as disclosures to law

enforcement, disclosures related to investigating “unsolicited or unwelcome conduct[,]”

and disclosures about a matter of public concern or public interest. 15 U.S.C. § 6851(b)(4).

In her motion, Defendant characterizes the complaint as consisting of “speculative

information” and “naked assertions” that lack sufficient “factual enhancement” to allow

the Court to draw “any inferences at all, let alone reasonable ones.” For example,

Defendant states the complaint lacked sufficient detail to draw the inference that Plaintiff’s

images were of an intimate nature because the complaint did not describe which body parts

were exposed or if Plaintiff was recognizable in certain photos. She further argues that her

conduct is best understood as the investigation of “unwelcome conduct”—i.e. Mr.

Hammons’ adultery. See Motion [Doc. No. 5 at p. 13] (citing 15 U.S.C.

§ 6851(6)(4)(B)(iv)(II)). In the alternative, Defendant asserts the alleged disclosures were

about a matter of public concern because Plaintiff and Mr. Hammons are members of the

Oklahoma Bar Association and subject to the Rules of Professional Conduct. See Motion

[Doc. No. 5 at p. 15] (citing § 6851(b)(4)(C)).

2 The intimate visual depiction must also be disclosed in a manner “in or affecting

interstate or foreign commerce or using any means or facility of interstate or foreign

commerce[.]” 15 U.S.C. § 6851(b)(1)(A). Moreover, “consent” is defined. 15 U.S.C.

§ 6851(a)(2) (“The term ‘consent’ means an affirmative, conscious, and voluntary

authorization made by the individual free from force, fraud, misrepresentation, or

coercion.”); see also 15 U.S.C. § 6851 (b)(2) (“(A) the fact that the individual consented

to the creation of the depiction shall not establish that the person consented to its

distribution; and (B) the fact that the individual disclosed the intimate visual depiction to

someone else shall not establish that the person consented to the further disclosure….”).

The Court finds each of Defendant’s arguments unpersuasive. The “unwelcome

conduct” exception in § 6851 applies where an individual is the involuntary recipient of

unsolicited intimate images.3 To argue that the exception applies to the unwelcome

discovery of a romantic partner’s infidelity removes the provision from its context. See

United States v. Burkholder, 816 F.3d 607, 615 n.6 (10th Cir. 2016) (“[It] is a fundamental

canon of statutory construction that the words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.”). Similarly, the “public concern”

exception most appropriately applies to situations where an intimate image is newsworthy,

but the intimate character of the image is incidental. For example, “Napalm Girl”—which

is a photo depicting a 9-year-old whose clothes were tragically burned off in a bombing

during the Vietnam War—qualifies. 15 U.S.C. § 6851(b)(4)(C); see Meghan Fay, The

Naked Truth: Insufficient Coverage for Revenge Porn Victims, Note, 59 B.C. L. Rev. 1839,

1859 n.153 (2018)); see also City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004)

(defining “public concern” in the context of constitutionally protected speech as

“something that is a subject of legitimate news interest[.]”). To rule that common infidelity

amounts to a statutorily qualifying “public concern”—especially where disclosures were

not sent to the Oklahoma Bar Association—would create an exception that swallows the

rule.

3 See Brenna Cheyne Miller, Fact or Phallus? Considering the Constitutionality of Texas’s

Cyber-flashing Law Under the True Threat Doctrine, 8 Tex. A&M L. Rev., 423, 425-26

(2021) (discussing the issue).

Lastly, the complaint is well-drafted and allows the Court to straightforwardly apply

the elements of § 6851 to the facts of the case. Defendant’s motion is therefore denied as

to this claim.4

2. Claim 2 – Okla Stat. tit, 21 § 1040.13b

Plaintiff argues Okla. Stat. tit, 21 § 1040.13b creates a state-based private cause of

action akin to 15 U.S.C. § 6851. Defendant disagrees, arguing § 1040.13b is a purely

criminal statute.5

Section 1040.13b makes it a felony to engage in the “nonconsensual dissemination

of private sexual images” that the defendant:

“1. Intentionally disseminates …

2. Obtains … under circumstances in which a reasonable person would know

or understand that the image was to remain private; and

3. Disseminates … without the effective consent of the depicted person.”

Okla. Stat. tit, 21 § 1040.13b(B).

4 Defendant argues Plaintiff does not have a legitimate expectation of privacy in the

allegedly disclosed photographs. [Doc. No. 5 at p. 11] (citing Slayton v. Willingham, 726

F.2d 631, 635 (10th Cir. 1984)). The statute, however, does not refer to a “legitimate

expectation of privacy,” but instead provides a cause of action wherever a disclosing

individual has “recklessly disregard[ed] whether[] the [depicted] individual … consented

to [the] disclosure” of an intimate image. 15 U.S.C.A. § 6851(b)(1)(A). The Court therefore

finds no need to analyze Defendant’s argument premised on whether Plaintiff maintained

a legitimate expectation of privacy.

5 The parties do not cite, and the Court has not found, a case recognizing a private cause of

action under § 1040.13b. Plaintiff argues Doe v. Coomes, No. 21-CV-67-TCK-CDL, 2021

WL 4304692 (N.D. Okla. Sept. 21, 2021) qualifies. A review of the related briefs in that

case demonstrates that the issue was not presented to the court. See id. (Doc. Nos. 9-10).

Furthermore, the district court dismissed the claim under § 1040.13b for failing to meet

“the first [and] second required elements” of the possible cause of action. Id. at *1. The

district court did not address whether the statute conferred a civil cause of action, but only

whether it would matter if such an action existed according to the facts alleged. The Court

therefore finds Coomes unpersuasive.

Unlike 15 U.S.C. § 6851, section 1040.13b does not explicitly create a private cause of

action.

In Holbert v. Echeverria, 744 P.2d 960, 963 (Okla. 1987), partially rev’d on other

grounds as recognized in, Lee v. Bueno, 381 P.3d 736, 749 (Okla. 2016), the Oklahoma

Supreme Court adopted a three-part test for determining whether “an implied private right

of action” exists in a public statute that does not expressly create one. According to the

supreme court, “a cause of action [can] be inferred” if:

“(1) the plaintiff is one of the class for whose especial benefit the statute was

enacted;

(2) some indication of legislative intent, explicit or implicit, suggests that

Congress wanted to create a private remedy and not deny one; [and]

(3) implying a remedy for the plaintiff would be consistent with the

underlying purpose of the legislative scheme[.]”

Id. at 963 (relying on Cort v. Ash, 422 U.S. 66, 78 (1975) (providing for a similar multi-

pronged test to determine “whether a private remedy is implicit in a statute not expressly

providing one” in the federal context.)). See also id. at 963 n. 8-9 (citing “post-Cort

decisions addressing theprivate [sic] right-of-action issue[.]” (citations omitted)).

Applying the Holbert test here, the first and third prongs arguably suggest the statute

creates an implied cause of action. First, Plaintiff is a member of the class for whose

especial benefit the statute was enacted. She did not consent to the alleged dissemination

of her private images, and none of the statute’s enumerated exceptions apply.6 Concerning

6 See Okla. Stat. tit, 21 § 1040.13b(C) (“The provisions of this section shall not apply …

when: 1. The dissemination is made for the purpose of a criminal investigation that is

the third factor, it is likely that civil redress would be consistent with the criminal penalty

as the former allows for a victim’s financial compensation and the latter provides for the

retributive and deterrent aims of criminal law. See Donaldson v. City of El Reno, 565 P.3d

346, 356 (holding “the traditional aims of [criminal] punishment [are] retribution and

deterrence[.]”) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963)).

The dispositive factor is, however, the second prong: legislative intent. See Holbert,

744 P.2d at 964 (holding “Supreme Court decisions have placed special emphasis” on the

second Cort factor); see also id. at 964 n.12 (citing Daily Income Fund, Inc. v. Fox, 464

U.S. 523, 535-536 (1984) (“In evaluating such a claim, our focus must be on the intent of

Congress when it enacted the statute in question”); Middlesex Cty. Sewerage Auth. v. Nat.

Sea Clammers, 453 U.S. 1, 13 (1981) (“The key to the inquiry is the intent of the

Legislature”); Texas Industries, Inc. v. Radcliff Materials, 451 U.S. 630, 639 (1981) (“Our

focus, as it is in any case involving the implication of a right of action, is on the intent of

Congress”); California v. Sierra Club, 451 U.S. 287, 293 (The “ultimate issue is whether

Congress intended to create a private right of action”); Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis, 444 U.S. 11, 15 (1979) (“The question whether a statute creates a cause

of action, either expressly or by implication, is basically a matter of statutory

construction”); and Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (“The

otherwise lawful; 2. The dissemination is for the purpose of, or in connection with, the

reporting of unlawful conduct; 3. The images involve voluntary exposure in public or

commercial settings; or 4. The dissemination serves a lawful purpose.”).

question of the existence of a statutory cause of action is, of course, one of statutory

construction”)).

To determine legislative intent, the Court looks to the statute’s text and, to the extent

helpful, its history. See Holbert, 744 P.2d at 964 (“[The] text must be scrutinized for any

implicit indication of intent to create or deny private redress. Legislative intent is

ascertained by looking at the precise wording of the Act and studying its history.”).

Nothing in the text of § 1040.13b indicates an intent to create a private cause of

action. The statute provides for a criminal penalty only. See Okla. Stat. tit,

21 § 1040.13b(G). Moreover, § 1040.56 does provide for a private cause of action for

victims of certain enumerated crimes in Title 21, but not for victims of § 1040.13b.

Section 1040.56 is titled “Cause of action—Damages—Statute of limitations.” Id.

It reads as follows:

“Any person who, while under the age of eighteen (18), was a victim of an

offense provided for in Section 681, 741, 843.5, 852.1, 867, 885, 886, 888,

891, 1021, 1021.2, 1021.3, 1024.2, 1040.8, 1040.12a, 1040.13, 1040.13a,

1087, 1088, 1111.1, 1114 or 1123 of this title, … may bring a civil action …

regardless of whether the victim is now an adult.” Id.

It is a common principle of statutory construction that where the legislature

“includes particular language in one section of a statute but omits it in another section of

the same Act, it is generally presumed that [the legislature] acts intentionally and purposely

in the disparate inclusion or exclusion.” Kucana v. Holder, 558 U.S. 233, 249 (2010).

Because Title 21 includes a private cause of action for the above-listed offenses directed at

minors but excludes the offense at issue here, the Court is confident that the Oklahoma

legislature did not intend to create a private cause of action for the nonconsensual

dissemination of adult private sexual images.

Lastly, although not extensively briefed, the Court notes that § 1040.13b’s history

provides additional evidence of the law’s criminal character. The statute has been amended

four times since 2016. See 2016 Okla. Sess. Law Serv. Ch. 262 (S.B. 1257) (effective

November 1, 2016) (“Subject: Criminal Conduct Relating to Dissemination of Certain

Images”); 2020 Okla. Sess. Law Serv. Ch. 34 (S.B. 1462) (effective October 31, 2020)

(“Subject: Unlawful Dissemination of Private Sexual Images”); 2024 Okla. Sess. Law

Serv. Ch. 214 (H.B. 3639) (effective November 1, 2024) (“Subject: Crimes and

Punishments”); 2025 Okla. Sess. Law Serv. Ch. 23 (H.B. 1364) (going into effect

November 1, 2025) (“Subject: Crimes and Punishments”); 2025 Okla. Sess. Law Serv. Ch.

486 (H.B. 2104) (going into effect January 1, 2026) (“Subject: Classification of Felony

Offenses”). A review of each amendment shows that the legislature has demonstrated

singular interest in criminality. For example, the subject of Senate Bill 1257—the

originating statute—was “Criminal Conduct Relating to Dissemination of Certain

Images[.]” 2016 Okla. Sess. Law Serv. Ch. 262 (emphasis added). Likewise, House Bill

3639 increased the statutory maximum penalty for violators, and House Bill 1364

broadened the illegal conduct at issue to include artificially generated sexual depictions.

See 2024 Okla. Sess. Law Serv. Ch. 214; 2025 Okla. Sess. Law Serv. Ch. 23.

The legislature has had ample opportunity to explicitly include a state-based private

cause of action. It has not done so. Therefore, the statute’s history, combined with the text,

demonstrate that § 1040.13b does not confer a private cause of action. Defendant’s motion

as to this claim is granted.

3. Claim 3 – Intrusion upon Seclusion

Oklahoma follows the Restatement (Second) of Torts concerning intrusion upon

seclusion. See Guilbeau v. Durant H.M.A., LLC, 533 P.3d 764, 771 (Okla. 2023). The tort

consists of “(1) a nonconsensual intrusion [ ] that (2) was highly offensive to the reasonable

person.” Carr v. Oklahoma Student Loan Auth., 699 F. Supp. 3d 1241, 1252 (W.D. Okla.

2023) (citing Gilmore v. Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994)).

Defendant argues the Court should dismiss Plaintiff’s claim because the complaint

alleges only that Defendant accessed photographs from her husband’s devices—which

Defendant argues is neither intrusive nor unreasonable.

An intrusion “extends to the acquisition of any information to which the general

public is not entitled.” Guilbeau, 533 P.3d at 771. “It may be by … examination into a

person’s private concerns, as by opening h[er] private and personal mail[.]” Id. The

“particulars of the interactions between [the parties] leading up to [the intrusion], may well

be relevant” and the right is “concerned with people, not [specific] places.” Id.

The situation here is analogous to an illustration in the Restatement (Second) of

Torts in which Person “A” seeks evidence for use in a civil action against Person “B.”

Restatement (Second) of Torts § 652B (1977). “A” then goes to “B’s” bank where he

exhibits a forged court order demanding to examine “B’s” bank records. Once the bank

complies with the forged order, “A has invaded B’s privacy.” Id. In the illustration, the bank

is an innocent third party whose protections afford B with a reasonable sense of privacy.

Similarly, the complaint alleges that Defendant used stolen passwords to “hack[]”

into Mr. Hammons’ devices, where she obtained Plaintiff’s intimate photographs. Mr.

Hammons, like the bank, is an innocent third party whose password-protected devices

plausibly provided Plaintiff with a sense of privacy. If the particulars of the marriage were

such that the sharing (or hacking) of devices was not an acceptable practice, then it is

plausible that Defendant’s alleged actions were both intrusive and highly offensive to

Plaintiff. Consequently, Plaintiff has sufficiently stated a claim for intrusion upon

seclusion.7

4. Claims 4-5 – Public Disclosure of Private Facts and Intentional Infliction of

Emotional Distress

Plaintiff’s remaining claims are for (4) public disclosure of private facts8 and (5)

intentional infliction of emotional distress (“IIED”).9

Defendant asserts that the complaint fails to allege Plaintiff engaged in sufficiently

egregious or harmful behavior to justify civil liability under either tort. As the Oklahoma

7 The Court notes a plaintiff may have a claim for intrusion upon seclusion based on the

improper use of personal, deeply held, and intimate private objects handled by another. See

Guilbeau, 533 P.3d at 771-72 (holding a mother had a privacy right in the handling of her

miscarried child’s remains because “[t]he miscarriage was more personal to [the mother]

than to anyone else in the world.”).

8 The public disclosure of private facts requires Plaintiff to allege Defendant’s disclosures

(1) were highly offensive to a reasonable person, (2) contained private facts about the

plaintiff’s life, (3) were a public disclosure of private facts, and (4) were not of legitimate

concern to others. Hadnot v. Shaw, 826 P.2d 978, 985 n.30 (Okla. 1992).

9 Schovanec v. Archdiocese of Oklahoma City, 188 P.3d 158, 175 (Okla. 2008) (“To recover

damages for intentional infliction of emotional distress, a plaintiff must prove: (1) the

defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and

outrageous; (3) the defendant’s conduct caused the plaintiff emotional distress; and (4) the

resulting emotional distress was severe.”).

Supreme Court has cautioned, liability should not extend “to mere insults, indignities,

threats, annoyances, petty oppressions, or other trivialities.” Eddy v. Brown, 715 P.2d 74,

77 (Okla. 1986).10 Defendant further argues Plaintiff failed to allege the requisite intent for

IIED.

Adopting all reasonable inferences in the light most favorable to Plaintiff, the Court

disagrees with Defendant’s arguments. The complaint alleges Defendant disclosed

Plaintiff’s intimate images to unknown third parties. If true, Defendant’s behavior would

be sufficiently egregious—as well as sufficiently harmful—to surpass the Oklahoma

Supreme Court’s concern about the above torts being used to adjudicate commonplace

disputes. See Waterbury v. New York City Ballet, Inc., 205 A.D.3d 154, 165 (N.Y. App. Div.

2022) (“We find that the alleged conduct – i.e., the repeated recording and dissemination

of intimate images … without [the plaintiff’s] knowledge or consent – is extreme and

outrageous.”); see also Munley v. ISC Financial House, Inc., 584 P.2d 1336, 1338 (Okla.

1992) (“[w]here, under the facts before the court, reasonable persons may differ, it is for

[a] jury … to determine whether the conduct in any given case has been significantly

extreme and outrageous to result in liability.”).

Moreover, the complaint alleges Defendant acted with the requisite intent for a claim

based on IIED. Accepting the allegations of the complaint, she “hacked” into her husband’s

10 For IIED, the test is whether the alleged tortfeasor’s conduct “has so totally and

completely exceeded the bounds of acceptable social interaction that the law must provide

redress.” Miller v. Miller, 956 P.2d 887, 901 (Okla. 1998). “Generally, the case is one in

which the recitation of the facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id.

devices. She then, for the second time, downloaded Plaintiff’s intimate images, and—to an

unknown extent—disseminated them to third parties. Plaintiff later received unprecedented

attention from strangers on social media, corroborating the likely dissemination. Therefore,

Defendant’s motion as to these claims is denied.

Conclusion

IT IS ORDERED that Defendant’s Motion to Dismiss, with Brief in Support [Doc.

No. 5] is GRANTED in part and DENIED in part as set forth herein.

IT IS SO ORDERED this 25" day of September, 2025.

Ay 0.QyPit

TIMOTHY D. DeGIUSTI

Chief United States District Judge

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