United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendant's motions to
dismiss plaintiffs claims and plaintiffs motion to dismiss
defendant's counterclaims. The appropriate responses and
replies have been filed and the motions are ripe for ruling.
For the reasons discussed below, defendant's motions are
denied and plaintiffs motion is granted in part.
filed this action against defendant, a former employee, in
Wake County Superior Court alleging claims for violations of
the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, the
Electronic Communications Privacy Act, 18 U.S.C. § 2511,
and the Computer Related Crimes Act, N.C. Gen. Stat. §
14-458(a), as well as for breach of contract,
misappropriation of trade secrets, unfair and deceptive trade
practices, and breach of fiduciary duty. Defendant,
proceeding pro se, removed plaintiffs complaint to
this Court on the basis of its federal question jurisdiction.
28 U.S.C. §§ 1331; 1441.
alleges that defendant was hired by plaintiff in May 2014 as
Vice President of Operations & Finance and that
defendant's employment was terminated in November 2014
for poor performance. Plaintiff alleges that upon his hiring
as an employee defendant executed a business protection
agreement in which defendant agreed to keep plaintiffs
proprietary information confidential during the term of his
employment and for five years following termination of his
employment for any reason. Plaintiff alleges that defendant
copied thousands of its proprietary documents and saved them
to a personal Dropbox account and that defendant also set up
a fraudulent scheme to divert executive level email
communications to a personal email account.
filed a motion for preliminary injunction pursuant to Rule 65
of the Federal Rules of Civil Procedure seeking the return or
restraint of defendant's use or dissemination of
plaintiffs confidential information and documents containing
personal information about plaintiffs employees. A hearing
was held on the motion before the undersigned and the request
for a preliminary injunction was granted. [DE 52; 54].
Plaintiff noticed an interlocutory appeal of the preliminary
injunction but subsequently voluntarily dismissed his appeal.
See Sageworks v. Creatore, No. 16-2118, (4th Cir.
Oct. 25, 2016).
now proceeds in this Court though duly admitted counsel. [DE
70 & 71]. Still pending for the Court's consideration
are two motions to dismiss filed by defendant while
proceeding pro se. In his first motion, defendant
seeks dismissal of plaintiff s first claim for relief for
failure to state a claim upon which relief could be granted.
Fed R. Civ. P. 12(b)(6); [DE 6]. Defendant's second
motion to dismiss seeks to dismiss plaintiffs fifth and sixth
claims for relief as failing to state a claim. [DE 23]. Also
pending is plaintiffs motion to dismiss counterclaims
asserted in defendant's answer for failure to state a
claim. [DE 91].
of the Federal Rules of Civil Procedure "requires only a
short and plain statement of the claim showing that the
pleader is entitled to relief and which provides "the
defendant fair notice of what the claim is and the grounds
upon which it rests." Erickson v. Pardus, 551
U.S. 89, 93 (2007) (internal quotations, alterations, and
citations omitted). A Rule 12(b)(6) motion tests the legal
sufficiency of the complaint. Papasan v. Allain, 478
U.S. 265, 283 (1986). When acting on a motion to dismiss
under Rule 12(b)(6), "the court should accept as true
all well-pleaded allegations and should view the complaint in
a light most favorable to the plaintiff." Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir.1993). A complaint must allege enough facts to state a
claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Facial plausibility means that the facts pled "allow
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged, " and mere
recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint must be
dismissed if the factual allegations do not nudge the
plaintiffs claims "across the line from conceivable to
plausible." Twombly, 550 U.S. at 570.
Defendant's motions to dismiss
first-filed motion defendant seeks to dismiss plaintiffs
claim under the Computer Fraud and Abuse Act (CFAA), 18
U.S.C. § 1030. The CFAA is primarily a criminal statute,
but it also provides for a private right of action for
compensatory damages and equitable relief by someone who
suffers damage or loss as a result of a violation of the
statute. WEC Carolina Energy Sols. LLC v. Miller,
687 F.3d 199, 201 (4th Cir. 2012). "The CFAA is
concerned with the unauthorized access of protected
computers, " id. at 204, and prohibits
intentional access of a computer without authorization or
intentional access of a computer which exceeds authorization.
18 U.S.C. § 1030(a). In Miller, the Fourth
Circuit held that an employee
accesses a computer "without authorization" when he
gains admission to a computer without approval. Similarly, we
conclude that an employee "exceeds authorized
access" when he has approval to access a computer, but
uses his access to obtain or alter information that falls
outside the bounds of his approved access.
Miller, 687 F.3d at 204 (internal citation omitted).
Here, plaintiff has alleged that defendant both accessed
information without authorization and that he exceeded his
authorized access to obtain information. [DE 1-1], Compl.
¶¶ 48; 88.
contends that plaintiff has failed to state a plausible CFAA
claim because plaintiff has only alleged that defendant
violated the company policy or breached his contract, and,
under Miller, such facts are insufficient to bring a
claim under CFAA. The claim in Miller is
distinguishable, however, as the facts alleged in that case
supported only unauthorized use of company information, not
unauthorized access. See Miller, 687 F.3d at 203
(noting that the "district court held that
Appellees' alleged conduct-the violation of policies
regarding the use and downloading of confidential
information-did not contravene any of these provisions [of
CFAA]" and holding that "WEC fails to allege that
[defendants] accessed a computer or information on a computer
without authorization."). Unlike in Miller,
plaintiff has specifically alleged that defendant exceeded
his access authorization or accessed information without
authorization. For example, plaintiff alleges that defendant
engaged in a scheme to fraudulently intercept emails from
plaintiffs executive management. Compl. ...