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Advantage Ambulance Group, Inc. v. Lugo

March 23, 2009

ADVANTAGE AMBULANCE GROUP, INC. PLAINTIFF,
v.
LINDA LUGO, ET AL. DEFENDANTS.



The opinion of the court was delivered by: C. Darnell Jones II J.

ORDER & MEMORANDUM

AND NOW, this 23rd day of March, 2009, upon consideration of Defendants' Joint*fn1 Motion to Dismiss and Plaintiff's Response thereto, it is hereby ORDERED and DECREED that Count III of Plaintiff's Complaint under the Computer Fraud and Abuse Act (CFAA), is dismissed with prejudice. It is further ORDERED and DECREED that no compelling reason exists for this Court to exercise supplemental jurisdiction over Plaintiff's state claims, therefore said claims are dismissed without prejudice to raise same in state court.

The within matter revolves around the alleged "stealing" of trade secrets, i.e., customer/patient lists, by former Advantage Ambulance employees Linda Lugo, Casey Mather and Alexander Salas. Plaintiff alleged that after Lugo, Mather and Salas quit or were terminated from their employment with Advantage, they transmitted Advantage's trade secrets to their new employers, Ameriquest, Golden and Hi-Tech, respectively. (Am.Compl. ¶¶ 17-18.) Plaintiff further claimed that Defendant Golden disseminated these same trade secrets to Defendants Medcross, Vitech and Ameriquest and that these parties derived the benefit of the theft. (Am. Compl. ¶ 20.)

In response to Plaintiff's Complaint, Defendants filed a joint Motion to Dismiss,*fn2 asserting in pertinent part that Plaintiff failed to state a claim for which relief could be granted under the Computer Fraud and Abuse Act (hereinafter, "the Act").*fn3 Specifically, Defendants contended that Plaintiff ". . . failed to allege the requisite intent, has failed to allege any 'loss or damage' giving rise to a private cause of action, and has failed to allege access to a 'protected computer.'" (Br. in Supp. of Defs.' Joint Mot. to Dismiss 5.)

A review of Plaintiff's Complaint indicates that its claim under the Act was being brought pursuant to subsection (a)(4), which provides as follows:

§ 1030. Fraud and related activity in connection with computers

(a) Whoever--(4) knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period. 18 U.S.C., §1030(a)(4).*fn4

See also P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.2d 504, 508 (3d Cir. N.J. 2005)(in order to sustain a claim under subsection (a)(4) of the CFAA, a plaintiff must ultimately establish that a defendant: (1) has accessed a "protected computer;" (2) has done so without authorization or by exceeding their authorization; (3) has done so "knowingly" and with "intent to defraud;" and, (4) as a result, has "furthered the intended fraud and obtained anything of value").

It is well established that:

A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint. The question, then, is whether "the facts alleged in the complaint, even if true, fail to support the . . . claim." The pleader is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. Pa. 1993)(citations omitted).

In response to Defendants' Motion, Plaintiff sets forth various portions of its Amended Complaint, which Plaintiff asserts sufficiently establish the intent of Defendants. This Court found that for purposes of sustaining this portion of its action, Plaintiff sufficiently pled the intent requirement of the Act. (Am. Compl.¶¶ 18(a)-( c), 20 & 22.)

However, this Court also found that Plaintiff failed to sufficiently plead that the computer allegedly accessed by Defendants constituted a "protected computer" under the Act. A "protected computer" as it pertains to Plaintiff's cause of action, is defined as that "[w]hich is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States" 18 U.S.C.§(e)(2)(B). Plaintiff has alleged in pertinent part that "[T]he computer so accessed was used in interstate commerce." (Am. Compl. ¶ 17.)

Plaintiff's allegations must provide Defendants with sufficient notice of the basis for its claims. As was clearly noted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), mere reiteration of the elements of a claim - without more - is insufficient to survive a 12(b)(6) motion to dismiss . . .

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right ...


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