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Brothers Media Group, LLC v. Sanders

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

May 30, 2018

DAVID SANDERS, an individual, Defendant.



         THIS CAUSE is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint (“Motion”) (Doc. 7) and Plaintiff's Response thereto (Doc. 11). The Motion was referred to the undersigned for a report and recommendation regarding an appropriate resolution. (Doc. 19.) For the reasons set forth herein, the undersigned respectfully RECOMMENDS that the Motion be GRANTED in part as to Count I and DENIED without prejudice in part as to Counts II and III, that Count I of the Complaint (Doc. 1) be DISMISSED without prejudice, and that Plaintiff be given twenty days from the Court's order on this Report and Recommendation to file an amended complaint in accordance herewith.

         I. Background

         According to the Complaint, Defendant was employed by Plaintiff as a Regional Sales Manager from March 2017 to August 2017, during which time he performed his job duties using a company-issued laptop computer. (Doc. 1 at 2-3.) As a condition of his employment, Defendant entered into a Non-Disclosure and Confidentiality Agreement which provided in part and in general that all work product and devices in Defendant's possession were Plaintiff's property, and must be returned to Plaintiff upon termination of Defendant's employment for any reason. (Id. at 7.)

         When Defendant's resignation from his position was accepted, he was instructed to return the company-issued laptop to Plaintiff within five days. (Id. at 3-4.) Following several requests from Plaintiff, Defendant returned the laptop, which was received by Plaintiff approximately four weeks after Defendant resigned. (Id.) Upon inspection, Plaintiff determined that, after his resignation, Defendant had deleted all of the work files on the laptop, emptied the recycle bin so that the documents and data could not be recovered, and wiped the hard drive clean. (Id. at 5.) Plaintiff alleges that, by virtue of this conduct, “Defendant has intentionally and without authorization destroyed property that belonged to Plaintiff . . . .” (Id.) Plaintiff now brings the following causes of action: Count I - Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5) (“CFAA”); Count II - Conversion; and Count III - Breach of Contract. (Id. at 5-8.) Defendant moves to dismiss the Complaint in its entirety for failure to state a claim. (Doc. 7.)

         II. Standard

         Under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the Complaint sets forth sufficient factual allegations to state a claim upon which relief can be granted. In evaluating whether Plaintiff has stated a claim, the Court must determine whether the Complaint satisfies Federal Rule of Civil Procedure 8(a)(2), which requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To satisfy this standard, a complaint must contain sufficient factual allegations to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “Labels and conclusions” or “a formulaic recitation of the elements of a cause of action” that amount to “naked assertions” will not do. Iqbal, 556 U.S. at 678. Rather, “[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. Though detailed factual allegations are not required to satisfy this standard, Rule 8(a) demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Indeed, allegations showing “[t]he mere possibility the defendant acted unlawfully [are] insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'”) (quoting Twombly, 550 U.S. at 557). Rather, the well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         In ruling on a motion to dismiss under Rule 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. Sinaltrainal, 578 F.3d at 1260. Although the Court must accept well-pled facts as true, it is not required to accept Plaintiff's legal conclusions. Iqbal, 556 U.S. at 678 (noting “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating the sufficiency of a plaintiff's pleadings, a court is “not required to draw plaintiff's inference.” Sinaltrainal, 578 F.3d at 1260 (internal citation and quotations omitted). “Similarly, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations.” Id. (internal citation and quotations omitted); see also Iqbal, 556 U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”).

         III. Analysis

         The undersigned recommends that Count I be dismissed without prejudice because Plaintiff has failed to sufficiently allege that it suffered a loss of $5, 000 or more in a one-year period as required to bring a civil action under the CFAA in this case. Because the CFAA claim is the only basis pled for federal jurisdiction, the undersigned further recommends that the Court need not address Plaintiff's state law claims (Counts II and III) at this time.[2]

         Generally, the CFAA is a criminal statute, but it also provides for a civil cause of action in favor of “[a]ny person who suffers damage or loss by reason of a [statutory] violation.” 18 U.S.C. § 1030(g). However, a civil action may be brought only if the conduct involves certain factors set forth in the CFAA, including “loss to 1 or more persons during any 1-year period . . . aggregating at least $5, 000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I), (g). The CFAA defines “loss” as “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11). The CFAA separately defines “damage” as “any impairment to the integrity or availability of data, a program, a system, or information.” 18 U.S.C. § 1030(e)(8).

         In Count I, Plaintiff alleges generally that by accessing the laptop after his resignation, deleting the subject work files, and “destroying” the hard drive, Defendant violated 18 U.S.C. § 1030(a)(5), which provides for liability against one who:

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without ...

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