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Curran v. Mark Zinnamosca & Associates

United States District Court, Third Circuit

January 2, 2014

JOHN F. CURRAN, III, Plaintiff
v.
MARK ZINNAMOSCA & ASSOCIATES, et al., Defendants

REPORT AND RECOMMENDATION

SUSAN E. SCHWAB, Magistrate Judge.

I. Introduction.

The plaintiff, John F. Curran, III, brought this action against four defendants raising an array of state law and federal claims. We conclude that Curran has failed to establish personal jurisdiction over one of the defendants and that he has failed to state a federal claim upon which relief can be granted against any of the other defendants. Accordingly, we recommend that the defendants' motions to dismiss be granted and that the complaint be dismissed. We also recommend, however, that Curran be given leave to file an amended complaint as to two of the defendants. Further, we recommend that Curran's motions for default judgment be denied.

II. Background and Procedural History.

Curran filed a complaint naming the following as defendants: (1) Mark Zinnamosca & Associates; (2) Mark Zinnamosca, CPA; (3) Kelly Utz; and (4) the University of Maryland-University College.[1] Curran alleges that both he and Zinnamosca are citizens and residents of the state of Maryland, that Zinnamosca & Associates is a corporation with a principal place of business in Maryland, that Utz is a citizen and resident of Florida, and that the University of Maryland-University College is an educational institution with its principal location in Maryland. Curran contends that the Court has subject-matter jurisdiction under 28 U.S.C. §1331 as he seeks to present federal statutory claims against the defendants.

A. Allegations Regarding Mark Zinnamosca & Associates and Mark Zinnamosca, CPA.

Although Curran does not clearly plead his claims, he asserts that he is proceeding against Mark Zinnamosca & Associates and Mark Zinnamosca, CPA "for fraud, malpractice, breach of fiduciary responsibility, slander and libel." Doc. 1 at 2. Curran also claims that Zinnamosca[2] violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.

Curran alleges that he is the founder and 67.3% owner of Gargoyles, Inc., a Delaware corporation. He alleges that Zinnamosca was the chief financial officer of Gargoyles, Inc., until his services were terminated. Tracking the language of 18 U.S.C. § 1030(a)(4), Curran alleges in conclusory language that Zinnamosca "knowingly and with intent to defraud, accessed a protected computer without authorization, or exceeded authorized access, and by means of such conduct furthered the intended fraud." Doc. 1 at 2, ¶4. Curran alleges that Zinnamosca performed work on a computer network and emailed that work to him. Curran also alleges that Zinnamosca fraudulently completed and submitted "via an electronic and computer based methodology" tax filings on behalf of Curran and Gargoyles, Inc. Id. According to Curran, the "value of such use in perpetrating fraud far exceeds $5, 000." Id.

Curran also alleges that Zinnamosca provided testimony to the Maryland Attorney General, and he alleges that the attorney for the plaintiff in the case of Shafik v. Curran, 1:09-CV-2469 (M.D. Pa.), used that testimony. According to Curran, Zinnamosca's testimony was untrue, but Curran does not clearly allege the substance of Zinnamosca's testimony. Rather, he cryptically alleges that "no such cautions were ever made either to the Plaintiff or the Board of Directors for Gargoyles, Inc., the company that the Plaintiff found and is the majority shareholder." Doc. 1 at 3, ¶5. According to Curran, Zinnamosca's purportedly fraudulent statements negatively impacted the value of Curran's ownership in Gargoyles, Inc.

Curran further alleges that Zinnamosca committed malpractice. According to Curran, he sold some of his shares in Gargolyes, Inc. to private buyers, but Zinnamosca incorrectly recorded those sales in the financial records of Gargoyles, Inc. as separate issuances of shares of stock by Gargoyles, Inc. Curran alleges that that resulted in the loss of value of his ownership position in Gargoyles, Inc. and a subsequent investigation by authorities. He alleges that Zinnamosca made false statements in an effort to hide his alleged malpractice, and Zinnamosca made those false statements in an effort to undermine his character. According to Curran, this caused him irreparable harm and significantly diminished the value of his investment.

Curran is seeking compensatory and punitive damages from Mark Zinnamosca & Associates and Mark Zinnamosca, CPA.

B. Allegations Regarding Kelly Utz.

Curran asserts that he is proceeding against Utz for fraud, and he presents a claim against Utz under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Again, tracking the language 18 U.S.C. § 1030(a)4), Curran alleges in conclusory language that Utz "knowingly and with intent to defraud, accessed a protected computer without authorization, or exceeded authorized access, and by means of such conduct furthered the intended fraud." Doc. 1 at 4, ¶3. According to Curran, the "value of such use in perpetrating fraud far exceeds $5, 000." Id.

Curran alleges that, according to a digital assessment of Gargoyles, Inc.'s "information system and server, " Utz, without authorization, removed numerous documents from Gargoyles, Inc., created other documents, and fraudulently represented that Curran had created those documents. Curran identifies dates when Utz allegedly scanned documents and emailed them to her home computer and deleted documents on Gargoyle's "system." According to Curran, on May 19, 2010, he told his attorney that he had discovered the theft of various items from his office but that he was unable to determine when the items had been taken. Curran alleges that the theft was reported and investigated, and his office was dusted for fingerprints. According to Curran, on May 20, 2010, during a Board meeting, Zinnamosca, who at the time was Gargoyles, Inc.'s accountant and who was Utz's former boss, gave the CEO of Gargoyles a thumb drive containing an image of the company's system and files along with the CEO's personal tax records. Curran alleges that a forensic analysis of the thumb drive determined that Utz had downloaded the information contained on the thumb drive during the period from 2/18/10 through 3/1/10.

Curran is seeking compensatory and punitive damages from Utz.

C. Allegations Regarding the University of Maryland-University College.

Curran asserts that he is proceeding against the University of Maryland-University College ("University of Maryland" or "University") "for fraud, breach of contract, slander and liable [sic]." Curran alleges that he completed the degree requirements for a Bachelor of Science degree from the University of Maryland, that he applied for graduation, and that he received his diploma. Nevertheless, according to Curran, an employee of the University, orally and in writing, stated that he did not receive his diploma from the University and that he must have fabricated or forged his diploma. Curran alleges that those statements were baseless, inflammatory, and damaging.

Curran is seeking compensatory and punitive damages against the University as well as injunctive relief requiring the University to correct its records to reflect that he completed the degree requirements and received his diploma.

III. The Motion to Dismiss Filed by Mark Zinnamosca & Associates and Mark Zinnamosca, CPA.

Mark Zinnamosca & Associates and Mark Zinnamosca, CPA filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or for a more definite statement pursuant to Fed.R.Civ.P. 12(e). After the Zinnamosca defendants filed a brief in support of that motion, we ordered Curran to file, on or before March 29, 2013, a brief in opposition to the motion in accordance with Local Rule 7.6. Rather than filing a brief in opposition as ordered by the Court, on April 2, 2013, Curran filed a response to the motion asserting that because the Zinnamosca defendants did not attach a certificate stating whether he concurred in the motion in accordance with Local Rule 7.1, the motion is incomplete and, thus, should be denied. We reject Curran's argument that the motion should be denied because the Zinnamosca defendants failed to attach a certificate of concurrence or nonconcurrence with the motion. While the Zinnamosca defendants failed to comply with Local Rule 7.1, Curran was not prejudiced by that failure. We assumed that the Curran did not concur in the motion, and we specifically ordered Curran to file a brief in opposition to the motion. Curran thus had an opportunity to oppose the motion on the merits, but he failed to take advantage of ...


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