Thomas Christopher Group, Inc. v. Moreno et al

Filing 25

ORDER granting in part and denying in part 22 motion to dismiss; denying 22 Motion for More Definite Statemen. The Clerk of Court is directed to terminate Ruben Moreno and Christopher Rios from this cause of action. The Defendant Nancy Estep shall have up to and including September 25, 2015, in which to answer the amended complaint. Signed by Judge Elizabeth A. Kovachevich on 9/16/2015. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT FLORIDA
TAMPA DIVISION

THOMAS CHRISTOPHER GROUP, INC.,
Plaintiff,

vs.

CASE NO. 8:15-CIV-992-EAK-EAJ

RUBEN MORENO, CHRISTOPHER
RIOS, and NANCY ESTEP,
Defendants
/

ORDER ON DEFENDANT’S MOTION TO DISMISS
This cause is before the Court on Defendant, Thomas Christopher Group, Inc.’s
(Group), motion to dismiss complaint (Doc. No. 22) and response thereto (Doc. 23). The
Court previously dismissed Christopher Rios and Ruben Moreno from this cause of action
with prejudice (Doc. 15) and, as to Nancy Estep, granted in part a motion to dismiss
Count III of the complaint with leave to file an amended complaint. (Doc. 17).

STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiff’s complaint set out
a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a
complaint attacked by a Rule 12(b)6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. (citations and internal quotation marks omitted).
Therefore, to survive a defendant’s motion to dismiss, the plaintiff’s complaint
“must now contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). In considering a motion to dismiss
under this plausibility standard, courts follow a two-pronged approach. First, a court must
“eliminate any allegations in [a] complaint that are merely legal conclusions.” Id. at 1290
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)). Then, a court must take any
remaining well-pleaded factual allegations, “assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. (citing Iqbal, 129 S. Ct. at
1950)) (internal quotation marks omitted). In sum, Rule 8’s pleading standard “does not
require ‘detailed factual allegations,’ but demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (citing Twombly,
550 U.S. at 555).
The amended complaint states claims against Rios and Moreno. The Plaintiffs
state that they filed the amended complaint with Moreno and Rios included to preserve
appeal rights but have no objection now to those claims being stricken. Therefore, all
claims against the Defendants Ruben Moreno and Christopher Rios are stricken from the
amended complaint. So that portion of the motion to dismiss is granted.
The remaining issue in the motion is whether or not the Computer Fraud and
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Abuse Act (“CAA”) count, Count III, as to Nancy Estep has been amended sufficiently to
survive the motion to dismiss. The Court has reviewed the amended complaint and finds
that its is sufficient to survive the motion to dismiss. The Court taking all the allegations
as a whole and as true as alleged, finds it appropriate to deny the motion to dismiss. This
case will proceed therefore on the allegations as to Nancy Estep only. Accordingly, it is
ORDERED that the motion to dismiss (Docket No. 22) be granted in part and
denied in part. The Clerk of Court is directed to terminate Ruben Moreno and
Christopher Rios from this cause of action. The Defendant Nancy Estep shall have up to
and including September 25, 2015, in which to answer the amended complaint.
DONE and ORDERED in Chambers, in Tampa, Florida, this 16th day of
September, 2015.

Copies to: All parties and counsel of record

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