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Skypoint Advisors, LLC. v. 3 Amigos Productions LLC

United States District Court, M.D. Florida, Fort Myers Division

January 7, 2020

SKYPOINT ADVISORS, LLC., Plaintiff/Counter Defendant,
v.
C 3 AMIGOS PRODUCTIONS LLC., BLACKBURNSTEELE LLC., ISSA ZAROUI, and MARK C CRAWFORD, Defendants/ Counterclaimants. 3 AMIGOS PRODUCTIONS LLC., BLACKBURNSTEELE LLC., ISSA ZAROUI, and MARK C CRAWFORD, Third-Party Plaintiffs,
v.
DENIS DRENI, Third-Party Defendant.

          ORDER AND OPINION

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff's Motion to Dismiss Counterclaims (Doc. #136) filed on October 21, 2019. The defendants filed an Opposition (Doc. #137) on November 4, 2019. With the permission of the Court (Doc. #147), a Reply (Doc. # 146) and a Sur-Reply (Doc. #149) were filed. For the reasons set forth below, the motion is granted in part and denied in part.

         I.

         Plaintiff Skypoint Advisors, LLC (Skypoint) is a Florida limited liability company whose members include third-party defendant Denis Dreni (Dreni). (Doc. #93, p. 1.) Skypoint's Third Amended Complaint (Doc. #93) against 3 Amigos Productions, LLC, BlackburnSteele, LLC, Issa Zaroui, and Mark Crawford, [1] alleges the defendants made misrepresentations to induce Skypoint to invest in a film project. (Id. pp. 2, 4-26.) The Third Amended Complaint asserts six claims, including a claim that defendants violated Section 10(b) of the Securities Exchange Act. (Id. pp. 32-47.)

         In August 2019, the four defendants filed their Counterclaims (Doc. #122) against Skypoint and Dreni. The Counterclaims asserted claims of defamation, violation of the Stored Communications Act, 18 U.S.C. § 2707, and tortious interference with a contract against Skypoint and Dreni jointly and severally. (Doc. #122, pp. 26-29.) Skypoint seeks to have the three counterclaims dismissed for failure to state a claim or lack of subject matter jurisdiction.

         II.

         A. Failure to State a Cause of Action

         Skypoint argues the second and third counterclaims fail to state a cause of action and therefore should be dismissed. (Doc. #136, p. 2.) The Court agrees in part.

         Under Federal Rule of Civil Procedure 8(a)(2), 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). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555; see also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth, ” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible. Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         (1) Count Two: Violation of Stored Communications Act

         Count Two alleges Skypoint and Dreni violated the Stored Communications Act, 18 U.S.C. § 2707, when Dreni, or someone acting on his behalf, accessed defendant Zaroui's email account in order to view its contents and copy materials therein. (Doc. #122, p. 28.) Count Two asserts that the copied materials included “a copy of Zaroui's U.S. passport as well as business-related information such as names and contact information of business contacts.” (Id.)

         Skypoint argues this count should be dismissed because (1) defendants fail to sufficiently allege that Skypoint and Dreni intentionally accessed the email account without authorization, and (2) the count is premised upon false factual allegations. (Doc. #136, pp. 10-13.) In its Reply, Skypoint also suggests the count should be dismissed as to 3 Amigos, Crawford, and BlackburnSteele because they had no privacy interest in Zaroui's personal email account. (Doc. #146, p. 6.)

         The Stored Communications Act (SCA) is violated when anyone “intentionally accesses without authorization a facility through which an electronic communication service is provided; ... and thereby obtains ... access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a). A civil action is available for such a violation. With an exception not applicable to this case, “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity ... which engaged in that violation such ...


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