Thomas Christopher Group, Inc. v. Moreno et al
ORDER granting in part and denying in part 7 motion to dismiss in that the Motion to Dismiss is DENIED with respect to Count II; GRANTED WITHOUT PREJUDICE with respect to Count III with leave to amend; and Alternative Motion for a More Definit e Statement is GRANTED withrespect to Count III. Plaintiff has ten days from this date to amend its complaint against Nancy Estep as set out in this order and include a more definite statement as to Count III. Signed by Judge Elizabeth A. Kovachevich on 7/8/2015. (SN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
THOMAS CHRISTOPHER GROUP,
CASE NO.: 8:15-CV-992-T-17EAJ
CHRISTOPHER RIOS, and
ORDER GRANTING IN PART DEFENDANT NANCY ESTEP’S MOTION TO
DISMISS/ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT
This matter conies to the Court pursuant to Defendant’s, NANCY ESTEP (“Defendant”),
Motion to Dismiss or in the Alternative Motion for More Definite Statement, (Doc. # 7), filed
May 26, 2015, and Plaintiffs Response in Opposition, (Doc. # 12), filed June 9, 2015. For the
reasons that follow below, Defendants’ Motion is GRANTED IN PART.
Under Federal Rule of Civil Procedure 8(a)(2), a Plaintiffs complaint must provide a
“short and plain statement of the claim showing that the pleader is entitled to relief.” A
Defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) for
“failure to state a claim on which relief can be granted.” To survive a Rule 12(b)(6) motion to
dismiss, a Plaintiffs complaint must include “enough facts to state a claim to relief that is
plausible on its face.” See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007).
“While a complaint attacked by a [Rule] 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide grounds of his entitle[ment] to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. at 555 (second alteration in original) (citation omitted) (internal
quotation marks omitted).
On a Rule 12(b)(6) motion to dismiss, a court must “accept the factual allegations in the
complaint as true and construe them in the light most favorable to the plaintiff.” Alvarez v.
Attorney General for Florida, 679 F.3d 1257, 1261 (11th Cir. 2012). Courts follow a two-prong
approach when considering a motion to dismiss: “1) eliminate any allegations in the complaint
that are merely legal conclusions; and 2) where there are well-pleaded factual allegations,
‘assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.’” American Dental Association v. Cigna Corporation, 605 F.3d 1283, 1290 (11th Cir.
2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). If “the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” then the claim meets the “plausibility requirement,” but it requires “more
than a sheer possibility” that the allegations are true. Id. “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned
[...] accusation.” Id. (quoting Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265
Plaintiff is a corporation specializing in the search and recruitment of corporate
executives, and has developed several systems to perform these services: Christopher Business
Systems (“CBS 5.0”), Christopher People Systems (“CPS”), Christopher Marketing Systems
(“CMS”), Christopher Accounting Systems (“CAS”), and Christopher Facilities Systems
(“CFS”). (Doc. #1). Plaintiff also developed a confidential database (“Candidate Warehouse”)
of established executive candidates. (Doc. # 1). Sometime between August and September of
2006, Plaintiff employed Defendant Ruben Moreno, and sometime between August and October
of 2009, Plaintiff employed Defendant Christopher Rios, as executive recruiters. (Doc. # 1).
Plaintiff hired Defendant Ruben Moreno who was a recently convicted felon who pled guilty to
defrauding AutoNation and AOL through wire fraud. (Doc. # 1).
In 2003, Plaintiff entered into negotiations with Defendant Nancy Estep to acquire her
employer, “Fran Staff.” (Doc. #1). The negotiations reached an advanced stage, but ultimately
fell through. (Doc. # 1). On September 13, 2013, Defendants Ruben Moreno and Christopher
Rios resigned; their last day with Plaintiff was on October 11, 2013. (Doc. # 1). After
Defendants’ departure, Plaintiff conducted an investigation. (Doc. # 1). The investigation
revealed Defendants Ruben Moreno and Christopher Rios “accessed [Plaintiffs] computer
servers without authority to do so,” and “stole Plaintiffs proprietary systems, tools and
processes by externally recording files and data.” (Doc. #1) . Defendants Nancy Estep and
Ruben Moreno formed Sterling Global Executive Search, LLC (“Sterling”), an executive
recruiting company, on or about September 17,2013. (Doc. #1).
A. Factual Sufficiency of Plaintiff s Complaint
This Court must accept the factual allegations as true and construe them in a light most
favorable to the Plaintiff. See Alvarez v. Attorney General for Florida, 679 F.3d 1257, 1261
(11th Cir. 2012).
Construing the facts in this light, and eliminating the legal conclusions
contained in the Amended Complaint, Plaintiff has sufficiently pled factual allegations upon
which relief is plausible to survive Defendant’s Motion to Dismiss.
Association, 605 F.3d at 1290.
I. Count II: Violation of Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act (“RICO Act”) makes it:
[UJnlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity . . . to
use or invest, directly or indirectly, any part of such income, or the
proceeds of such income, in acquisition of any interest in, or the
establishment or operation of, any enterprise which is engaged in,
or the activities of which affect, interstate or foreign commerce.
18 U.S.C. § 1962(a). To establish a federal civil RICO violation under 18 U.S.C. § 1962(a),
Plaintiff must satisfy four elements of proof: (1) conduct (2) of an enterprise (3) through pattern
(4) of racketeering activity. See Williams v. Mohawk Industry, Inc., 465 F.3d 1277, 1282 (11th
Cir. 2006) (citations omitted). In addition, Plaintiff must also satisfy the requirements of 18
U.S.C. § 1964(c) by showing “(1) the requisite injury to ‘business or property,’ and (2) that such
injury was ‘by reason o f the substantive RICO violation.” Id.
Defendants Ruben Moreno and Christopher Rios have been dismissed from theses causes
of action by order dated July 6, 2015. Because the claims involving Defendant Nancy Estep are
tied to Defendants, Defendants will be mentioned in the following analysis. Here, Plaintiff
alleges Defendant Nancy Estep and Defendants Ruben Moreno and Christopher Rios have
conspired to use embezzled funds to create or operate Sterling. (Doc. # 1). Plaintiff alleges
Sterling constitutes an “enterprise” under Section 1962(a). (Doc. # 1). As for the pattern of
racketeering activity, Plaintiff points to Defendant Ruben Moreno’s two separate incidents of
embezzlement (“Moreno . . . derived income from AutoNation and . . . AOL . . . through a
pattern of racketeering activity . . . .”). (Doc. #1). Lastly, Plaintiff alleges injury to business
caused by Defendant’s RICO conspiracy: “TCG [Plaintiff] has lost clients and TCG’s revenues
have decreased between $300,000.00 and $400,000.00 quarterly.” (Doc. # 1). Plaintiff has pled
sufficient factual allegations upon which relief for Count II is plausible.
I. Count III: Violation of Computer Fraud and Abuse Act
The Computer Fraud and Abuse Act (“CFAA”) punishes whoever:
(2) intentionally accesses a computer without authorization or
exceeds authorized access, and thereby obtains—
(C) information from any protected computer;
(4) knowingly and with intent to defraud, accesses a protected
computer without authorization, or exceeds authorized access, and
by means of such conduct furthers the intended fraud and obtains
anything of value, unless the object of the fraud and the thing
obtained consists only of the use of the computer and the value of
such use is not more than $5,000 in any 1-year period;
(5)(A) 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
(B) intentionally accesses a protected computer without
authorization, and as a result of such conduct, recklessly causes
(C) intentionally accesses a protected computer without
authorization, and as a result of such conduct, causes damage and
To succeed in a civil CFAA claim, Plaintiff must prove the “amount of loss, plus the elements of
the particular subsection of the CFAA under which the plaintiff brings suit.” See Aquent LLC v.
Stapleton, Case No. 6:13-cv-1889-Orl-28DAB, 2014 WL 5780293, at *2 (M.D. Fla. Nov. 5,
2014). Plaintiff has not pled sufficient factual allegations showing Defendant Nancy Estep’s
“intentional access” of a computer. Instead, Plaintiff alleges Defendants Ruben Moreno and
Christopher Rios “accessed” Plaintiffs computer servers at the request of Estep. Plaintiff notes
the Eleventh Circuit interprets “access” under the CFAA broadly, but the Court cannot find
controlling case law to support a definition of “access” based on an agency theory.
B. Alternative Motion for More Definite Statement
Federal Rule of Civil Procedure 12(e) allows a party to “move for a more definite
statement of a pleading to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response.”
Fe d .
C iv .
P. 12(e). “The
motion . . . must point out the defects complained of and the details desired.” Id. A “shotgun
pleading” typically “contains several counts, each one incorporating by reference the allegations
of its predecessors, leading to a situation where most of the counts . .. contain irrelevant factual
allegations and legal conclusions.” See Wittbold v. Miami-Dade County, No. 11-21922-Civ,
2013 WL 3280039, at *5 (S.D. Fla. June 27, 2013) (citing Strategic Income Fund, LLC v. Spear,
Leads & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002)). “Shotgun pleadings are
inconsistent with the requirement of the Federal Rule of Civil Procedure 8(a) that a pleading be a
‘short and plain statement of the claim.”’ Id. “Furthermore, this type of pleading disregards Rule
10(b)’s requirement that discrete claims should be plead in separate counts.” See id. at *5 (citing
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001)).
Plaintiffs Complaint is a shotgun pleading. In Count III of the Complaint, Plaintiff
“restates and realleges” seventy-three preceding paragraphs “as if fully rewritten herein.” (Doc.
# 1). Consequently, Count III contains irrelevant factual allegations; for example, six paragraphs
are factual allegations of Defendant Ruben Moreno’s criminal history, which have no bearing on
Plaintiffs CFAA claim against Defendant Nancy Estep. (Doc. # 1). Accordingly, it is
(1) Plaintiffs Motion to Dismiss is DENIED with respect to Count II;
(2) Plaintiffs Motion to Dismiss is GRANTED WITHOUT PREJUDICE with respect
to Count III with leave to amend; and
(3) Plaintiffs Alternative Motion for a More Definite Statement is GRANTED with
respect to Count III. Plaintiff has ten days from this date to amend its complaint against
Nancy Estep as set out in this order and include a more definite statement as to Count III.
DONE and ORDERED in Chambers, in Tampa, Florida, this ^ ' ^ clay ofy j
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