Tech Systems, Inc. v. Lovelen Pyle
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-00374-GBL-JFA Copies to all parties and the district court/agency. [999701291].. [13-1359, 13-2098]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1359
TECH SYSTEMS, INC.,
Plaintiff - Appellee,
v.
LOVELEN PYLES,
Defendant – Appellant,
and
JOHN AND JANE DOES 1-10,
Defendants.
No. 13-2098
TECH SYSTEMS, INC.,
Plaintiff - Appellee,
v.
LOVELEN PYLES,
Defendant – Appellant,
and
JOHN AND JANE DOES 1-10,
Defendants.
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Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cv-00374-GBL-JFA)
Submitted:
October 27, 2015
Decided:
November 18, 2015
Before MOTZ and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Eric H. Zagrans, ZAGRANS LAW FIRM LLC, Cleveland, Ohio, for
Appellant.
Eric Scott Crusius, Stephen P. Ramaley, MILES &
STOCKBRIDGE P.C., Tysons Corner, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lovelen Pyles appeals the district court’s orders denying
her motion under Fed. R. Civ. P. 50 for judgment as a matter of
law and granting attorney’s fees in favor of Tech Systems, Inc.
(“TSI”).
Pyles asserts that the district court erred in denying
her motion as to violations of the Computer Fraud and Abuse Act
(“CFAA”), 18 U.S.C. § 1030 (2012); the Electronic Communications
Privacy
Act,
18
fiduciary duty.
in
instructing
U.S.C.
§ 2701
(2012);
and
her
breach
of
She also contends that the district court erred
the
jury
on
punitive
TSI’s motion for attorney’s fees.
damages
and
in
granting
We affirm.
I.
“We review de novo the legal conclusions upon which the
district court’s denial of judgment as a matter of law were
premised.”
Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 164
(4th Cir. 2012).
“If, viewing the facts in the light most
favorable to the non-moving party, there is sufficient evidence
for a reasonable jury to have found in [the non-moving party’s]
favor, we are constrained to affirm the jury verdict.”
Lack v.
Wal-Mart Stores, Inc., 240 F.3d 255, 259 (4th Cir. 2001).
A.
“Although
the
CFAA
is
primarily
a
criminal
statute,
it
permits private parties to bring a cause of action to redress a
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violation
of
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the
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CFAA . . . .”
A.V.
ex
rel.
Vanderhye
iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009).
v.
The civil
suit may be brought in limited circumstances by “[a]ny person
who suffers damage or loss” as a result of a CFAA violation.
U.S.C. § 1030(g).
18
As relevant here, the violation must have
caused “loss to 1 or more persons during any 1-year period . . .
aggregating
at
least
§ 1030(c)(4)(A)(i)(I),
$5,000
(g).
A
in
value.”
person
18
violates
the
U.S.C.
CFAA
by
“intentionally access[ing] a computer without authorization or
exceed[ing]
information
authorized
from
§ 1030(a)(2)(C),
access,
any
or
and
thereby
obtain[ing] . . .
protected
computer,”
“intentionally
access[ing]
18
a
U.S.C.
protected
computer without authorization, and as a result of such conduct,
caus[ing] damage and loss,” 18 U.S.C. § 1030(a)(5)(C).
This
court
narrowly
interprets
the
terms
authorization” and “exceeds authorized access.”
“without
WEC Carolina
Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012).
“[A]n employee . . . accesses a computer ‘without authorization’
when [s]he gains admission to a computer without approval.”
at 204.
Id.
“[A]n employee ‘exceeds authorized access’ when [s]he
has approval to access a computer, but uses [her] access to
obtain or alter information that falls outside the bounds of
[her]
approved
access.”
Id.
“Notably,
4
neither
of
these
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definitions extends to the improper use of information validly
accessed.”
Id.
Pyles argues that the CFAA did not apply to her actions
during
her
employment
with
TSI
because
she,
as
the
human
resources director, had full access to the computer information.
Under the WEC Carolina framework, we disagree.
Pyles accessed
both the main computer network and financial servers without
authorization or in excess of her authority.
termination
email
of
her
account
authorization.
in
losses
employment,
and
Pyles
Additionally, upon
accessed
corporate
Blackberry
company-issued
her
without
Moreover, TSI demonstrated damage that resulted
from
Pyles’
actions.
Thus,
there
was
sufficient
evidence for a reasonable jury to have found in TSI’s favor.
B.
A
person
violates
the
ECPA
by:
“(1)
intentionally
access[ing] without authorization a facility through which an
electronic
communication
intentionally
exceed[ing]
service
an
is
provided;
authorization
to
or
(2)
access
that
facility; and thereby obtain[ing], alter[ing], or prevent[ing]
authorized access to a wire or electronic communication while it
is in electronic storage in such system.”
Pyles
limits
her
ECPA
challenge
18 U.S.C. § 2701(a).
to
whether
she
acted
“without authorization” or “exceed[ed] [her] authorization” in
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accessing TSI’s computer system. *
Pyles contends not only that
TSI granted her permission to access the computer system, but
also that her actions did not go outside the bounds of that
permission.
We disagree.
Authorization is a matter of permission and dependent on
its
scope,
properly
not
used.
on
whether
See
WEC
information
Carolina,
687
validly
accessed
F.3d
204.
at
was
Here,
although Pyles was permitted to use TSI’s email to carry out her
duties as human resources manager, she was not authorized to
access
the
server
through
manner she did here.
which
the
email
functioned
in
the
Additionally, her authorization to access
the Blackberry terminated with her employment.
Thus, there was
sufficient evidence for a reasonable jury to have found in TSI’s
favor.
II.
In Virginia, to establish a breach of fiduciary duty, a
plaintiff
duty,
must
(2) the
resulted
from
show
that
defendant
the
(1) the
breached
breach.
defendant
that
duty,
Informatics
*
owed
and
a
fiduciary
(3) damages
Applications
Grp.,
Accordingly, Pyles has abandoned any challenge related to
the other elements of her ECPA violation.
Fed. R. App. P.
28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999).
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Inc. v. Shkolnikov, 836 F. Supp. 2d 400, 424 (E.D. Va. 2011).
“[A]n employee . . . owes a fiduciary duty of loyalty to [her]
employer during [her] employment.”
Partners,
LLC,
576
S.E.2d
752,
Williams v. Dominion Tech.
757
(Va.
2003).
This
duty
“prohibits the employee from acting in a manner adverse to his
employer’s interest.”
Hilb, Rogal & Hamilton Co. of Richmond v.
DePew, 440 S.E.2d 918, 921 (Va. 1994).
Moreover, “termination
does not automatically free a[n] . . . employee from his or her
fiduciary obligations” if the action was “founded on information
gained during the relationship.”
634
S.E.2d
737,
744
(Va.
Today Homes, Inc. v. Williams,
2006)
(internal
quotation
marks
omitted).
Pyles concedes that she owed TSI a fiduciary duty under
Virginia law.
She asserts that the district court improperly
denied her motion to strike the breach-of-fiduciary-duty claim
because, she argues, the information she revealed was not the
kind
that
would
give
an
advantage
to
a
competing
business.
Nevertheless, the record reveals that she breached her duty by
acting
in
disregarding
bad
faith
TSI’s
with
interests
resulting in damages to TSI.
confidential
in
accessing
information
the
email
and
by
server,
Accordingly, the district court
properly rejected this claim.
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III.
Finally,
instructions
Pyles
challenges
allowing
for
the
punitive
attorney’s fees in TSI’s favor.
district
damages
and
court’s
its
jury
award
of
It is a “settled rule” that we
will not consider issues raised for the first time on appeal
absent “fundamental error or a denial of fundamental justice.”
In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (internal
quotation marks omitted).
“Fundamental error is more limited
than the plain error standard that [this Court] appl[ies] in
criminal cases.”
Id. (internal quotation marks omitted).
Thus,
this court has used the plain error standard “as something of an
intermediate step in a civil case.”
Id. at 286.
“[W]hen a
party in a civil case fails to meet the plain-error standard, we
can
say
with
confidence
fundamental error.”
that
[s]he
has
not
established
Id.
To establish plain error, Pyles must show that:
was
an
error,
(2)
the
error
was
affected her substantial rights.
F.3d
941,
showing,
954
“we
(4th
retain
Cir.
and
(3) the
error
United States v. Robinson, 627
2010).
discretion
plain,
(1) there
to
Even
if
Pyles
deny
relief;
makes
plain
this
errors
should only be corrected where not doing so would result in a
miscarriage of justice or would otherwise seriously affect the
fairness,
integrity
or
public
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reputation
of
judicial
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proceedings.”
Id.
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(alterations,
citation,
and
internal
quotation marks omitted).
We have refused to undertake plain error review, however,
where
a
party
“failed
to
make
anywhere in its briefs . . . :
district
court
fundamentally
or
its
most
essential
argument
it never contended that the
even
plainly
erred.”
In
re
Under Seal, 749 F.3d at 292; see Makdessi v. Fields, 789 F.3d
126,
132
(4th
Cir.
2015)
(refusing
plain
error
review
where
appellant failed to assert that elements of such review were
satisfied).
claims.
Failing to argue either, Pyles has abandoned these
Moreover, Pyles’ jurisdictional argument is meritless
because the court properly exercised subject-matter jurisdiction
over
her
federal
and
state-law
claims
pursuant
to
28
U.S.C.
§ 1331 (2012) (federal question), and 28 U.S.C. § 1367(a) (2012)
(supplemental jurisdiction).
Accordingly, we affirm the district court’s orders.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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