United States District Court, W.D. North Carolina, Statesville Division
C. Mullen United States District Judge.
matter is before the Court upon the Plaintiff's Motion to
Dismiss the Defendant's Counterclaims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The
Defendant has filed a Response in opposition. The Plaintiff
has informed the Court that he will not be filing a Reply.
factual background of this case has been stated in the
Court's Order of March 22, 2018 denying Defendant's
Motion to Dismiss. (Doc. No. 35). Therefore, in this Order
the Court will focus exclusively on the factual allegations
contained in the Defendant's Counterclaims. The Defendant
has filed Counterclaims for violations of the North Carolina
Computer Trespass Act, Interference with Personal Property,
Conversion, and a Permanent Injunction.
Counterclaims allege as follows: Following McKeown's
resignation, he represented to Tectran that he was returning
his "laptop and Tectran property." (Doc. No. 37 at
¶ 15.) Rather than returning all Tectran property in his
possession as McKeown claimed, McKeown returned a computer
that was devoid of any substantive business information.
Id. at ¶ 17. Tectran alleges that Plaintiff
purposefully wiped and destroyed Tectran's business
information and documents. Id. at ¶ 18. When
McKeown was contacted about the lack of files on his
computer, he represented that his wife had accidentally
deleted Tectran's files and also that he had no other
Tectran documents in his possession. Id. at
¶¶ 20, 21. At all times, Tectran was the owner of
the computer as well as any other Tectran documents in
McKeown's possession. Id. at ¶¶ 14,
46, 49. McKeown did not have the right or permission to
delete documents from Tectran's computer or to retain
Tectran documents and information following his resignation.
Id. at ¶¶ 41, 50, 53. Tectran subsequently
learned that McKeown did have other Tectran documents in his
possession and the timing of McKeown's actions following
his resignation suggest that McKeown's claim his wife
"accidentally" deleted files was false.
Id. at ¶ 20. On February 27, 2017 -- after
McKeown's resignation, but prior to placing the computer
in the mail to return it to Tectran -- McKeown uploaded
hundreds of Tectran files to an external thumb drive.
Id. at ¶ 30. If McKeown's wife only
accidentally (and innocently) deleted files from the
computer, McKeown could and should have told Tectran that he
had copies of the "accidentally" deleted files in
an alternative location. McKeown did not do so. The documents
uploaded to the thumb drive on February 27, 2017 were not the
only Tectran documents in McKeown's possession.
Id. at ¶ 31. McKeown maintained Tectran
documents and information in at least one other location
aside from the thumb drive. Id. Forensic analysis of
the thumb drive shows that Tectran documents were uploaded on
April 2, 2017, May 7, 2017, and May 8, 2017. Id.
These upload dates occurred after the computer had been
returned to Tectran. Id. These upload dates mean
that McKeown uploaded Tectran documents to the thumb drive on
April 2, 2017, a mere two days before McKeown began
employment with Phillips Industries, Inc., a direct
competitor of Tectran, and more than sixty days before
McKeown filed his lawsuit against Tectran. Id. at
¶¶ 6, 24, 31.
admits that he retained Tectran's documents but claims
that he only kept them "should legal proceedings
arise." (Mem. in Supp. Mot. to Dismiss Counterclaim,
Doc. No. 23 at p. 2.) Further, as alleged in the
Counterclaim, the timing of McKeown's uploads to the
thumb drive coupled with the fact McKeown visited Tectran
customers on behalf of Phillips and has spoken poorly about
Tectran to at least one of those customers, suggests McKeown
had an improper motive, i.e., to compete against Tectran, for
retaining Tectran documents and information. (Doc. No. 37 at
argues that Tectran did not receive the return of its
documents and information because it failed to request their
return. However, in its Counterclaim, Tectran alleges that it
requested the return of its documents and information on
multiple occasions. Id. at ¶¶ 20, 26-27.
First, after evaluating the computer and finding such an
unusual lack of information, Tectran contacted McKeown about
the whereabouts of the contents that should have been on his
wiped computer. Id. at ¶ 20. At that point,
Tectran was told that McKeown's wife had accidentally
deleted everything, but also that McKeown was not in
possession of Tectran documents. Id. at ¶¶
20, 21. Tectran again requested the return of its documents
on April 28, 2017 when its counsel formally demanded that
McKeown return all Tectran's documents and information.
Id. at ¶¶ 26-27. McKeown returned some
documents on May 16, 2017, Id. at ¶ 28, however
he has now admitted that he again failed to return all
Tectran documents and information in his possession.
See Consent Preliminary Injunction, Doc. No. 21 at
¶ 3 (stating that the prior "post-resignation
submittals" failed to include certain Tectran
information). Thus, Tectran alleges, as of at least September
2017, McKeown continued to be in possession of Tectran's
documents and information despite the demand for their return
and twice having claimed to no longer be in possession of
Tectran documents or information.
Standard for Rule 12(b)(6) Motion to Dismiss
12(b)(6) motion tests the legal sufficiency of the non-moving
party's claim. Under Federal Rule of Civil Procedure
8(a)(2), a complaint (or counterclaim) must contain a
“short and plain statement of the claim showing the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
This Rule does not require detailed factual allegations, but
demands more than an “unadorned, the-
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
survive a motion to dismiss pursuant to Rule 12(b)(6), the
non-moving party must allege sufficient facts “to raise
a right to relief above the speculative level” and must
provide “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570. A claim has “facial plausibility when the
[non-moving party] pleads factual content that allows the
court to draw reasonable inference that the [opposing party]
is liable for the misconduct alleged.” Id. at
The North Carolina Computer Trespass Act
North Carolina Computer Trespass Act provides that it is
"unlawful for any person to use a computer or computer
network without authority and with the intent to … (1)
temporarily or permanently remove, halt or otherwise disable
any computer data…from a computer; [to] (3) alter or
erase any computer data, computer programs, or computer
software; [or to] (5) make or cause to be made an
unauthorized copy, in any form…of computer
data…" N.C. Gen. Stat. § 14-458. The Act
goes on to define the phrase "without authority" to
mean that a person "has no right or permission to use a
computer, or the person uses a computer in a manner exceeding
the right or permission." Id. at §
14-458(a). The statute provides for a private right of action
by “[a]ny person whose property or person is injured by
reason of a violation of this section....” Id.
at § 14- 458(b).
support of Tectran's claim against McKeown for violation
of the Act, Tectran has alleged that following McKeown's
resignation, but prior to returning his Tectran-issued
laptop, McKeown uploaded Tectran documents and information to
a thumb drive and then proceeded to delete those same files
from his Tectran computer. (Doc. No. 37 at ¶ 30.) In
deleting those documents, McKeown deprived Tectran of the
possession and use of its documents. Id. at ¶
54. Further, Tectran has specifically pled that McKeown's
actions were done intentionally and without the right or
authority of ...