Vehicle Valuation Services Inc. v. DiMaria et al, No. 1:2013cv05094 - Document 39 (N.D. Ill. 2013)
Court Description: ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/10/2013:Civil case terminated. Mailed notice(wp, )
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VEHICLE VALUATION SERVICES, Plaintiff, Case No. 13 C 5094 v. Hon. Harry D. Leinenweber DARREN DiMARIA, MITCHELL HERWALDT, KEVIN GIPSON, DiMARIA COMPANIES, INC., d/b/a DCI SOLUTION, and DAVID DiMARIA, Defendants. MEMORANDUM OPINION AND ORDER Pending before the Court is Defendants Motion to Dismiss. For the reasons stated herein, the Motion is granted. I. BACKGROUND This case resulted from a dispute between Plaintiff Vehicle Valuation Services (hereinafter, Plaintiff or VVS ) and its former employees. The Defendants include Darren DiMaria, Mitchell Herwaldt, Kevin Gipson, David DiMaria, and DiMaria Companies (the Defendants ). Plaintiff alleges that Defendant Darren DiMaria resigned his employment suddenly and unexpectedly. Plaintiff recovered data from Darren DiMaria s computer that indicated that he had emailed himself various documents, Plaintiff s organized spreadsheets, proprietary DiMaria business Companies and and images information. started doing that contained Defendants business as then DCI Solution ( DCI ), in competition with VVS. Plaintiff alleges that Defendants have failed to return all of the data that Darren DiMaria took when he left. Plaintiff does not allege any damage to its computers, devices, or software. In Count I, Plaintiff alleges that Darren DiMaria violated the Computer Fraud and Abuse Act (the CFAA ), 18 U.S.C. § 1030 et seq. Plaintiff brings Count II, for Breach of Fiduciary Duty under state law, against Defendants Herwaldt, Gipson, and Darren DiMaria. Count III, a state law claim for civil conspiracy, is brought against DCI and David DiMaria. II. LEGAL STANDARD A Complaint must provide a short and plain statement of the claim showing the plaintiff is entitled to relief. P. 8(a)(2). FED. R. CIV. Detailed factual allegations are not required, but 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). The complaint must plead[] factual content that allows the court to draw the reasonable inference misconduct alleged. that the defendant is liable for the Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court construes a complaint in the light most favorable to the plaintiff and accepts all well-pled facts as true. of Cicero, 577 F.3d 768, 771 (7th Cir. 2009). - 2 - Justice v. Town III. A. ANALYSIS CFAA Claim A civil claim under the CFAA requires (1) damage or loss; (2) caused by; (3) a violation of a substantive provision in Section 1030(a); and (4) conduct involving one of the factors in subsection 1030(c)(4)(A)(i)(I)-(V). 18 U.S.C. § 1030(g). Plaintiff s claim is based on § 1030(a)(5)(A), which allows for a civil cause of action against one who knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer. 18 U.S.C. § 1030(a)(5)(A). Damage means any impairment to the integrity of or information. availability data, a program, a system, or 18 U.S.C. § 1030(e)(8). Plaintiff alleges that Defendant Darren DiMaria intentionally caused damage without authorization computers then owned by VVS. to Compl. ¶ 45. one or more protected But that allegation is insufficient, as it is no more than recitation of an element of the CFAA. Nowhere else in the Complaint does Plaintiff allege that its data has been lost or damaged. Nor does Plaintiff allege expenses related to business interruption. Plaintiff complains that data was copied and has not been returned, but copying or downloading business information is not damage to a protected computer under the CFAA. Garelli Wong & Assocs., Inc. v. Nichols, 551 F.Supp.2d 704, 710 (N.D. Ill. 2008). - 3 - The complaint must provide factual content that shows that Plaintiff has suffered the type of damage contemplated by the statute some harm to data, a program, a system, or information. U.S.C. § 1030(e)(8). 18 Because it does not do so, it fails to state a claim upon which relief can be granted. Because Plaintiff s Count I fails for this reason, the Court declines to address other possible grounds for dismissal. If Plaintiff decides to amend, Plaintiff would be wise to ensure that the Complaint pleads facts for every element of any asserted claims. B. State Law Claims Counts II and III are state law claims, before the Court on a pendant jurisdiction basis. With the only federal claim dismissed, these counts are dismissed for lack of subject matter jurisdiction. IV. CONCLUSION For the reasons stated herein, the Defendants Motion to Dismiss is granted. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Date: October 10, 2013 - 4 -
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