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American Axess Inc. v. Ochoa

United States District Court, M.D. Florida, Orlando Division

May 14, 2018




          This matter comes before the Court on the Motion to Dismiss Counts VI, VIII, and IX (Doc. 8) filed by the Defendants and the response in opposition (Doc. 14) filed by the Plaintiff, American Axess Inc. (henceforth, “American Axess”).

         I. Background

         According to the allegations of the Complaint (Doc. 1), which are accepted in pertinent part as true for purposes of resolving this motion, American Axess is in the business of buying voice and data services from telecommunications providers and reselling them to other companies. American Axess signed a consulting agreement with Defendant Sunny Networks, LLC (“Sunny Networks”) in October 2011. American Axess describes Sunny Networks as the “corporate vehicle” of Defendant Juan Carlos Ochoa (“Ochoa”). At the time the consulting agreement was signed, Ochoa worked for a company in a similar line of work to American Axess. Ochoa provided consulting services to American Axess. Ochoa's wife, Defendant Solimar Bustamante (“Bustamante”), signed the consulting agreement.

         American Axess alleges that sometime before February 2018 the Defendants entered into a conspiracy to misappropriate its trade secrets. American Axess had provided Ochoa with the computer password to its “Quotes File.” The Quotes File consisted of e-mails containing detailed pricing information, such as the terms of every service quote provided by American Axess to its customers. American Axess alleges that Ochoa copied the Quotes File to his own personal computer on February 2, 2018. In doing so, he (apparently inadvertently) deleted them from American Axess's server. Three days later, after demands from American Axess, Ochoa copied the Quotes File back to American Axess's server; however, the format of the e-mails had been changed to one that could not be read by American Axess's computers.

         Just over a month later, on March 9, 2018, American Axess filed the instant complaint, asserting claims for violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (Count I); violation of the Computer Abuse and Data Recovery Act, Fla. Stat. § 668.801 (Count II); misappropriation of trade secrets in violation of Fla. Stat. § 688.001 (Count III); misappropriation of trade secrets in violation of the Federal Defend Trade Secrets Act, 18 U.S.C. § 1836 (Count IV); conversion (Count V); violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 (Count VI); breach of fiduciary duty (Count VII); aiding and abetting breach of fiduciary duty (Count VIII); conspiracy (Count IX); and breach of contract (Count X).

         Counts VI and IX are asserted against all three defendants; Count VIII is asserted solely against Bustamante. By way of the instant motion, the Defendants seek dismissal of all three counts.

         II. Legal Standards

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief” so as to give the defendant fair notice of what the claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule 12(b)(6) motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must also limit its consideration to the pleadings and any exhibits attached thereto. Fed.R.Civ.P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

         The plaintiff must provide enough factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence of the required elements, Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). Conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

         In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court explained that a complaint need not contain detailed factual allegations, “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. at 1949 (internal citations and quotations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the plaintiff is entitled to relief.'” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Analysis

         A. Count VI

         In Count VI, American Axess asserts a FDUTPA claim against all three Defendants. To state an FDUTPA claim, a plaintiff must allege three basic elements: a deceptive act or unfair practice; causation; and damages. Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). The Defendants contend the FDUTPA claim must be dismissed because the statute does not apply to entities complaining of tortious conduct which is not the result of a consumer transaction. See In re Maxxim Medical Group, Inc., 434 B.R. 660, 693 (Bankr. M.D. Fla. 2010) (holding that FDUTPA did not apply to former sales representative alleged to have solicited former employer's customers using improperly obtained confidential information, because former employer was not acting as a consumer or purchaser of services with regard to former employee). However, according to the allegations of the Complaint, when the alleged ...

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