Wolf et al v. Schadegg et al
ORDER by Magistrate Judge Kristen L. Mix on 3/21/16. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1) # 12 is DENIED.(lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01035-KLM
DAVID J. WOLF, an individual, and
WOLF AUTO CENTER STERLING LLC, a Colorado limited liability company,
MICHAEL SCHADEGG, an individual,
SHAWN COCHRAN, an individual,
JOHN DOES 1 THROUGH 3, and
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(6) and 12(b)(1) [#12]1 (the “Motion”). Plaintiffs filed a Response [#18]
in opposition to the Motion, and Defendants filed a Reply [#19]. The Court has reviewed
the Motion, Response, Reply, the entire case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the Motion [#12] is DENIED.
The relevant factual background for this motion2 involves data, trade secrets, and
other confidential information allegedly obtained by Defendants Michael Schadegg and
“[#12]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
Plaintiffs also allege that Defendants wrongfully converted funds payable to Plaintiff Wolf
Auto. Compl. [#1] ¶¶ 39-50. Because the claims relevant to these allegations are not presently at
issue on this Motion, they are not discussed here.
Shawn Cochran, former employees of Plaintiff Wolf Auto Center Sterling, LLC (“Wolf
Auto”), in contravention of state and federal law. See Compl. [#1]. Plaintiff David Wolf is
the owner and sole member of Plaintiff Wolf Auto, a car dealership selling Ford and
Chrysler cars as a franchisee. Id. ¶ 3-4. Both of the named Defendants were former
employees of Plaintiff Wolf Auto: Defendant Schadegg was a general manager of several
of its dealerships until he was terminated on April 14, 2014, and Defendant Cochran was
its finance and insurance manager until he left his job on May 7, 2014. Id. ¶ 7-8, 11. Both
Defendants were subsequently employed by one of Wolf Auto’s competitors, Korf
Continental Sterling (“Korf”). Id. ¶ 9, 11.
Plaintiffs allege that in late 2014 they discovered numerous instances of
unauthorized access to Wolf Auto’s computer systems and servers. Id. ¶ 64. Specifically,
Plaintiffs claim that Defendants used their prior usernames, passwords, and company
email accounts to obtain data, confidential information, and trade secrets from Wolf Auto
after they had ceased being employees. Id. ¶¶ 26-33. Plaintiffs cite to several specific
instances, alleging that, for example, an individual or several individuals using a computer
with an IP address3 assigned to Korf accessed data from Wolf Auto’s website on several
occasions from May 2014 to September 2014. Id. ¶ 34.
Thus, on May 15, 2015, Plaintiffs filed this action alleging a claim against Defendants
for violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, as well as
several state law claims for theft of trade secret information, civil theft, conversion, breach
of fiduciary duty, unjust enrichment, civil conspiracy, and tortious interference with
An Internet Protocol address, or IP address, is a “unique numerical address identifying
each computer on the internet,” and each computer connected to the internet has a unique IP
address. See In re Application of the United States of America for an Order Authorizing the Use
of a Pen Register and Trap on [xxx] Internet Service Account/User Name [firstname.lastname@example.org], 396
F. Supp. 2d 45, 48 (D. Mass. 2005) (citing government application defining “IP address”).
prospective business advantage. Compl. [#1] ¶¶ 53-120. Based on the CFAA claim,
Plaintiffs allege that subject-matter jurisdiction is appropriate pursuant to 28 U.S.C. § 1331,
and that the Court thus has supplemental jurisdiction over the remainder of Plaintiffs’ claims
pursuant to 28 U.S.C. § 1367(a). Compl. [#1] ¶ 51.
On July 21, 2015, Defendants filed the present Motion, requesting that the Court
dismiss Plaintiffs’ CFAA claim for failure to state a claim pursuant to Rule 12(b)(6). Motion
[#12] at 2. Defendants also argue that because Plaintiffs have failed to state a claim under
the CFAA – Plaintiffs’ sole basis for federal question jurisdiction – the state law claims
should consequently be dismissed for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1). Id. at 6. Thus, because the Court denies the request for dismissal under Rule
12(b)(6), the Court does not reach Defendants’ argument for dismissal pursuant to Rule
II. Legal Standard
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ.
P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon
which relief can be granted”). “The court’s function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.
1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible
on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true,
to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiff’s
allegations.” (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.” Christy
Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct,” a factual allegation has been stated, “but it has not show[n] that the pleader
is entitled to relief,” as required by Rule 8(a). Iqbal, 552 U.S. at 679 (second brackets
added; citation and internal quotation marks omitted).
The CFAA is primarily a criminal statute, and a list of potential violations is set forth
in 18 U.S.C. § 1030(a). Of those violations, the parties appear to agree that any of the
following subsections in particular might apply here: (a)(2)(C), (a)(4), (a)(5)(B), or (a)(5)(C).
See Motion [#12] at 3; Response [#18] at 6. Each of these subsections differs in various
ways – such as in the scienter requirement necessary to establish a violation – but,
because none of the elements of these subsections is presently in dispute here, the Court
will dispense with a lengthy discussion4 of the subsections and cite to Subsection (a)(2)(C)
by way of example. A violation under that subsection occurs where a defendant (1)
intentionally accesses a computer; (2) without or exceeding authorization; and (3) thereby
obtains information from a protected computer. 18 U.S.C. § 1030(a)(2)(C).
An additional factor must be satisfied to establish a civil violation under the CFAA,
which is the subject of Defendants’ present motion. Pursuant to Section 1030(g), a private
right of action may be brought by “[a]ny person who suffers damage or loss . . . if the
conduct involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of
subsection (c)(4)(A)(i).” Id. § 1030(g) (emphasis added). The parties agree that only
Subclause (I) is relevant here: “loss to 1 or more persons during any 1-year period . . .
aggregating at least $5,000 in value.” Id. § 1030(c)(4)(A)(i)(I). Subsection (e)(11) defines
“loss” as “any reasonable cost to any victim, including the cost of responding to an offense,
conducting a damage assessment, and restoring the data, program, system, or information
to its condition prior to the offense, and any revenue lost, cost incurred, or other
consequential damages incurred because of interruption of service[.]” Id. § 1030(e)(11).
This definition of “loss” does not include lost revenue apart from the lost revenue incurred
as a result of the interruption of service, and hence does not “include lost revenue resulting
from the dissemination of the computer information to a competitor.” Am. Family Mut. Ins.
Co. v. Gustafson, No. 08-cv-02772-MSK, 2011 WL 782574, at *5 (D. Colo. Feb. 25, 2011)
amended, No. 08-cv-02772-MSK, 2012 WL 426636 (D. Colo. Feb. 10, 2012).
The parties dispute whether Plaintiffs have sufficiently alleged damages pursuant
The subsections of the CFAA cited above have been the subject of extensive discussion
in the circuit courts. An in-depth and thorough analysis of these decisions is contained in Judge
Martinez’ recent order in Cloudpath Networks, Inc. v. SecureW2 B.V., --- F. Supp. 3d ---, No. 15-cv0485-WJM-KLM, 2016 WL 153127, at *8-14 (D. Colo. Jan. 13, 2016).
to Section 1030(g). With respect to damages under the CFAA claim, the Complaint alleges
that “Wolf Auto hired a computer forensic firm to investigate and assess the extent of
Schadegg’s and Cochran’s unauthorized access to its computer systems, for which it
incurred charges in excess of $5,000” and that, “[u]pon discovering Schadegg’s and/or
Cochran’s repeated unauthorized access to its computer systems and server in late 2014,
Wolf Auto took actions to secure its computer systems and servers from further
unauthorized access by Schadegg, Cochran, and others.”5 Compl. [#1] ¶ 63-64.
Defendants argue that “Plaintiffs have failed to allege facts demonstrating that any
discrete act of either Mr. Schadegg or Mr. Cochran caused them a loss or losses
‘aggregating at least $5,000 in value.’” Motion [#12] at 5. More specifically, Defendants
contend that Plaintiffs “do not attribute their computer forensic investigation charges to any
one act or even any one individual,” and because they “cannot apply their loss across
separate acts and, presumably, across multiple individuals, Plaintiffs’ allegation of their loss
is insufficient to state a claim under the CFAA.” Id. at 5-6.
Plaintiffs respond that courts interpret the CFAA as imposing no requirement that
the damage or loss be attributable to any particular instance, but rather that “the $5,000
floor applies to how much damage or loss there is to the victim over a one-year period, not
from a particular intrusion.”
Response [#18] at 7 (quoting Creative Computing v.
Getloaded.com LLC, 386 F.3d 930, 934 (9th Cir. 2004). As a preliminary matter, the Court
agrees with Plaintiffs’ argument here, and notes that many other courts have rejected
Plaintiffs also allege that the “value of the information wrongfully obtained” was in excess
of $5,000 and that Defendants actions have caused “competitive harm” to Wolf Auto in excess of
$5,000 in any one-year period. Compl. [#1] ¶¶ 59, 62. However, as Defendants correctly point out,
these allegations do not constitute “loss” under the CFAA. Gustafson, 2011 WL 782574, at *5.
Thus, the Court considers only whether Plaintiffs have sufficiently alleged the loss requirement with
respect to the allegation that Plaintiff Wolf Auto incurred costs in securing its computer systems.
Defendants’ argument that $5,000 threshold be met with respect to each particular
intrusion. See, e.g., Freedom Banc Mortg. Servs., Inc. v. O’Harra, 2012 WL 3862209, at
*7 (S.D. Ohio Sept. 5, 2012); Del Vecchio v. Amazon.com, Inc., No. C11-366RSL, 2012 WL
1997697, at *5 (W.D. Wash. June 1, 2012); Ticketmaster L.L.C. v. RMG Techs., Inc., 507
F. Supp. 2d 1096, 1113 (C.D. Cal. 2007); Sprint Nextel Corp. v. Simple Cell, Inc., Civ. No.
CCB-13-617, 2013 WL 3776933, at *7 (D. Md. July 17, 2013).
However, Defendants also aver that Plaintiffs “make no attempt to allocate the cost
of the computer forensic investigation to each individual,” and thus that “Plaintiffs
potentially may be using the cost of a computer forensic investigation made necessary by
the acts of one individual . . . to state CFAA claims against other individuals.” Reply
[#19] at 3 (emphases added). Further, Defendants note that because the Complaint also
alleges that Plaintiffs discovered instances of unauthorized access from a former employee
who is not a party to this action, it therefore follows that at least some of the loss Plaintiffs
attribute to Defendants may not have been caused by them at all. Id.; Compl. [#1] ¶ 35.
Thus, Defendants argue that because Plaintiffs do not clearly allege that each Defendant’s
individual act or acts caused loss in the amount of $5,000 or more, Plaintiffs have failed to
state a claim for relief under the CFAA. Id.
The Court finds Defendants’ argument unpersuasive. Defendants premise their
argument on CFAA’s language stating that “[a]ny person who suffers damage or loss by
reason of a violation of this section may maintain a civil action against the violator[.]” 18
U.S.C. § 1030(g) (emphasis added). But the argument that Plaintiffs are required to allege
what specific loss was incurred by each Defendant and in what amounts at the pleading
stage is flawed for several reasons. First and foremost, Defendants’ argument is simply
one inference of many that may be drawn from Plaintiffs’ Complaint. However, as the
Supreme Court has noted, a plaintiff has sufficiently pled a claim when it has “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis added). Here, Plaintiffs cite
to numerous instances of alleged unauthorized access to Wolf Auto’s computer systems
by both Defendants or individuals who were using the usernames and passwords
previously assigned to Defendants. See Compl. [#1]. These allegations permit, for
example, an inference that both Defendants were working together to access Plaintiffs’
data, particularly given that Defendants were working for the same rival company and
undoubtedly were familiar with each other by virtue of their past employment with Plaintiff
Further, while the parties both note that there appear to be no cases determining
whether a plaintiff is required to meet the $5,000 floor with respect to each defendant
individually or all defendants collectively, cases confronting analogous issues under the
CFAA are nonetheless instructive. For example, in Sprint Nextel the defendants argued
on a motion to dismiss that the plaintiff could not sufficiently relate the loss it claimed to
have suffered to any particular alleged action. Sprint Nextel, 2013 WL 3776933, at *7. The
court held that whether the actions could be “provably tied to any CFAA violation is an issue
of fact,” and found that plaintiff had “sufficiently pled its CFAA claims.” Id. Similarly, the
real questions presented by Defendants’ argument – who caused the alleged loss
sustained by Plaintiffs and to what degree each individual caused this loss – are also
questions of fact whose answers are not necessarily available to Plaintiffs prior to
discovery. See also Quantlab Techs. Ltd. (BVI) v. Godlevsky, No. 4:09-cv-4039, 2015 WL
1651251, at *3 (S.D. Tex. Apr. 14, 2015) (remarking that it may be the case that a plaintiff
need “only show $5,000 of expenses in response to all of Defendants’ alleged intrusions”
but ultimately concluding that it was unnecessary to reach this question, because an issue
of material fact existed as to whether the plaintiff incurred $5,000 in qualifying losses from
each particular defendant’s actions); see also Carnegie Strategic Design Engineers, LLC
v. Cloherty, Civ. A. No. 13-1112, 2014 WL 896636, at *4 (W.D. Pa. Mar. 6, 2014) (“Plaintiff
may show loss by alleging that it expended an amount to investigate whether such damage
occurred.”), appeal dismissed (Aug. 26, 2014).
Thus, because the Court finds that Plaintiffs have sufficiently alleged loss under the
CFAA, the Court denies the motion to dismiss.
Accordingly, for the reasons set forth above,
IT IS HEREBY ORDERED that the Motion [#12] is DENIED.
Dated: March 21, 2016
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