Accessninja, Inc v. Passninja, Inc et al

Filing 50

ORDER GRANTING IN PART AND DENYING IN PART 13 MOTION TO DISMISS: The Motion to Dismiss is DENIED as to Counts I and II and GRANTED as to Count III. Count III is DISMISSED without prejudice. The request for a more definite statement is DENIED. The Plaintiff shall file an amended complaint by March 24, 2025. Signed by Judge Roy K. Altman on 3/10/2025. See attached document for full details. (wce)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-cv-24745-ALTMAN
ACCESSNINJA, INC. d/b/a
ACCESSGRID,
Plaintiff,
v.
PASSNINJA, INC. and RICHARD
GRUNDY,
Defendants.
_____________________________/
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
The Defendants, PassNinja, Inc. and Richard Grundy, have moved to dismiss the Plaintiff’s
Complaint. See Motion to Dismiss [ECF No. 13] at 6. They ask, in the alternative, for a more definite
statement. Ibid. For the reasons we outline below, the Motion to Dismiss is DENIED as to Counts I
and II and GRANTED as to Count III. We also DENY the Defendants’ request for a more definite
statement.
THE FACTS
Our Plaintiff, AccessNinja, is “engaged in the business of developing and exploiting an
application programming interface (‘API’) that allows for the issuance and management of Near Field
Communication (‘NFC’) passes.” Complaint [ECF No. 1] ¶ 2. NFC passes are “essentially digital
‘tickets’ that can be distributed and scanned at events, attractions, and experiences.” Ibid. They can
also be used “as digital ‘keys’ to open physical doors.” Ibid. Defendant PassNinja “is a competitor of
[AccessNinja] in the NFC space.” Id. ¶ 3. AccessNinja’s founder and CEO, Auston Bunsen, and
Defendant Grundy have known each other for “approximately fifteen years.” Id. ¶ 13. In or around
January 2020, Bunsen helped Grundy develop “high level strategy” for PassNinja but was “not

interested” in coding for PassNinja at the time. Id. ¶ 14. Despite Bunsen’s assistance, Grundy was not
successful in building PassNinja into a “viable, operating business.” Id. ¶¶ 14–15.
Bunsen, however, “remained interested in NFC technology” and began writing programming
code for the technology in early 2023 (the “Copyrighted Work”). Id. ¶ 16. Nobody else “substantially
contributed or assisted” Bunsen in writing the Copyrighted Work. Id. ¶ 22. While he was writing the
Copyrighted Work in or around February 2023, Bunsen approached Grundy and proposed “that they
work together to build PassNinja.” Id. ¶ 17. Bunsen would contribute the Copyrighted Work he
“started writing in exchange for fifty-one percent (51%) of the stock in PassNinja.” Ibid. Bunsen and
Grundy recognized the need to memorialize any potential agreement with “appropriate
documentation” and negotiated for months thereafter. Id. ¶ 19. While these negotiations were
ongoing, Bunsen granted Grundy “limited access” to the Copyrighted Work “for the limited and
exclusive purpose or writing tutorials for potential customers to learn about [NFC] technology and its
commercial applications.” Id. ¶ 20. This was done “in a good faith effort to collaborate on the
contemplated new venture.” Ibid.
The negotiations between Bunsen and Grundy “ultimately fell apart in the summer of 2024,”
and the parties “never reached or executed a final agreement regarding equity in PassNinja or its right
to use [the Copyrighted Work].” Id. ¶ 23. Bunsen decided to “build his own business” using the
Copyrighted Work and “incorporated [AccessNinja] for that purpose on or about August 26, 2024.”
Id. ¶ 24. As the author of the Copyrighted Work, Bunsen was the owner of all copyrights in it “until
he assigned those rights to [AccessNinja] on August 27, 2024.” Id. ¶ 25. AccessNinja successfully
registered the Copyrighted Work with the U.S. Copyright Office on October 30, 2024. Id. ¶ 26; see also
Certificate of Registration [ECF No. 1-1] at 1-2.
On September 8, 2024, AccessNinja “revoked the limited authorization Bunsen had previously
granted to Grundy” to access the Copyrighted Work. Complaint ¶ 28. Despite being offered the
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opportunity to license the Copyrighted Work “for a monthly fee,” Grundy and PassNinja instead
copied and “exploited it for their own commercial purposes.” Id. ¶¶ 28–29. The Copyrighted Work is
now “the primary economic engine for PassNinja’s business.” Id. ¶ 29. Upon learning of the
Defendants’ use of the Copyrighted Work, AccessNinja “issued multiple notices of infringement to
PassNinja in accordance with the Digital Millennium Copyright Act (‘DMCA’).” Id. ¶ 4. But PassNinja
“continues to promote” the Copyrighted Work on its website. Id. ¶ 37.
AccessNinja brought this action to “end PassNinja’s willful and unlawful infringement of [the
Copyrighted Work] and recover damages for the harm caused to date.” Id. ¶ 38. Its Complaint asserts
three claims against the Defendants: “Copyright Infringement under 17 U.S.C. § 101 et seq. (Against
PassNinja)” (Count I); “Contributory Copyright Infringement (Against Grundy)” (Count II); and
“Misappropriation of Trade Secrets under FUTSA (Against All Defendants)” (Count III). See
Complaint at 7–11. In response to AccessNinja’s allegations, the Defendants have moved to dismiss
the Complaint—and, assuming we give AccessNinja leave to amend, they ask us to require
AccessNinja to provide a more definite statement. See Motion to Dismiss at 6. 1
THE LAW
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this
“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550
U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

The Motion to Dismiss has been fully briefed and is ripe for review. See Response in Opposition to
Motion to Dismiss (“Response”) [ECF No. 26]; Reply to Plaintiff’s Response in Opposition to
Defendants’ Motion to Dismiss (“Reply”) [ECF No. 27].

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an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at
555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will
reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10
(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual
allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.
JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016). “The motion is granted only when the
movant demonstrates that the complaint has failed to include ‘enough facts to state a claim to relief
that is plausible on its face.’’’ Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016)
(quoting Twombly, 550 U.S. 544, 570 (2007)).
ANALYSIS
I.

The Motion to Dismiss
A. Count I: Direct Copyright Infringement

To state a claim for copyright infringement under the Copyright Act, a plaintiff “must allege
facts showing (1) ownership of a valid copyright, and (2) copying of constituent elements of the work
that are original.” Jackson v. JPay, Inc., 851 F. App’x 171, 173 (11th Cir. 2021) (citing Feist Publ’ns, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). The first element (“ownership of a valid copyright”) is
a relatively simple task. A certificate of registration under the seal of the U.S. Copyright Office stands
as “prima facie evidence of the validity of the copyright.” Strategic Mktg., Inc. v. Great Blue Heron Software,
2015 WL 11438209, at *4 (S.D. Fla. May 12, 2015) (Bloom, J.) (citing 17 U.S.C. § 410(c)). The standard
for originality (the second element) “is low, but it does exist.” Feist, 499 U.S. at 362. It requires the
author to have exhibited “some minimal degree of creativity.” Ibid. (citing In re Trade–Mark Cases, 100
U.S. 82, 94 (1879)). An author claiming infringement must prove “the existence of . . . intellectual
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production, of thought, and conception.” Ibid. (cleaned up) (citing Burrow–Giles Lithographic Co. v.
Sarony, 111 U.S. 53, 59–60 (1884)).
The Defendants first ask us to dismiss Count I because the allegations of “the Complaint and
Copyright Registration Nullify Each Other.” Motion to Dismiss at 2. Relying on AccessNinja’s
certificate of registration with the U.S. Copyright Office, the Defendants point out that both Auston
Bunsen and AccessNinja are listed as co-authors of the Copyrighted Work. See Certificate of
Registration [ECF No. 1-1] at 1. This is a problem, the Defendants say, because the Complaint says
that “AccessNinja did not exist when the work was created[.]” Motion to Dismiss at 2 (citing
Complaint ¶¶ 24–26). As a result, the Defendants assert that “AccessNinja cannot be a joint author
to the work that the Defendants are accused of infringing, or the Copyrighted Work is inapplicable
and/or its registration invalid on its face.” Reply at 1.
AccessNinja responds that this argument “is far from clear” and that the Defendants “do not
cite any authority to support their request that this Court dismiss [the] copyright infringement claims
based on Defendants’ assertion that [AccessNinja’s] certificate of registration and complaint ‘nullify
each other.’” Response at 5–6. Our best reading of this “nullification” argument is that the Defendants
believe that AccessNinja’s copyright registration is invalid because it falsely suggests that AccessNinja
“is a joint-author of the Copyrighted Work[.]” Reply at 2. But this isn’t an appropriate argument at
the motion-to-dismiss stage. Here, remember, we must “accept the factual allegations in the Complaint
as true and construe them in the light most favorable to [AccessNinja].” Turner v. Williams, 65 F.4th
564, 577 (11th Cir. 2023). Given this standard, courts in our District have consistently held that “a
motion to dismiss is not the proper vehicle for challenging the validity of [the plaintiff’s] copyright or
the substance of a copyright infringement claim.” Stripteaser, Inc. v. Strike Point Tackle, LLC, 2014 WL
866396, at *4 (S.D. Fla. Mar. 5, 2014) (Altonaga, J.); see also Strategic Mktg., 2015 WL 11438209, at *4
(same); Phoenix Ent. Partners, LLC v. Gulfcoast Spirits, LLC, 2019 WL 8161158, at *4 (N.D. Fla. Jan. 2,
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2019) (Rodgers, J.) (“Regarding copyright validity, a plaintiff may establish a prima facie case of validity
of its copyright by producing a copyright certificate, thereby shifting the burden to the defendant to
raise the issue of registration validity as an affirmative defense.” (emphasis added)). 2
AccessNinja has attached a copy of its registration certificate for the Copyrighted Work to the
Complaint. See Certificate of Registration at 1–2; see also FED. R. CIV. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of a pleading for all purposes.”). This is prima facie
evidence of valid ownership of the copyright and is sufficient—standing alone—to survive an attack
under Rule 12(b)(6). See Strategic Mktg., 2015 WL 11438209, at *4 (“Strategic has obtained such
registration for the disputed material, and these certificates stand as ‘prima facie evidence of the
validity of the copyrights.’” (cleaned up) (quoting 17 U.S.C. § 410(c))). Since the alleged inconsistency
between the Complaint and the copyright registration is insufficient to overcome the registration’s
presumptive validity, we won’t dismiss Count I on this ground.
The Defendants next ask us to dismiss Count I because “[t]here are No Plausible Allegations
of Copying.” Motion to Dismiss at 3. In saying so, the Defendants insist that the “functional
processes” of the Copyrighted Work are “not subject to copyright.” Ibid. The Defendants’ position,
in other words, is that the Copyright Work’s function of “[e]fficiently creating, issuing, and revoking
passes for Apple Wallet and Google Wallet is not Copyrightable Subject Matter” because it isn’t an
“original creative expression[.]” Id. at 3–4; see also id. at 3 (“[T]he portion of the copyrighted work that
is copied must ‘satisfy the constitutional requirement of originality as set forth in Article I, § 8, cl. 8 .
. . the mere fact that that a work is copyrighted does not mean that every element of the work may be
protected.’”). AccessNinja counters that the “Defendants have retained and continued to exploit the

“Generally, the existence of an affirmative defense will not support a motion to dismiss.” Hunt v.
Amico Props., L.P., 814 F.3d 1213, 1225 n.8 (11th Cir. 2016) (cleaned up).

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entire Copyrighted Work after Bunsen revoked PassNinja’s limited revocable license to use it on
September 8, 2024.” Response at 6 (emphasis added).
The Defendants’ argument, in other words, focuses on the originality element of copyright
infringement. But AccessNinja has pled enough facts to survive dismissal on this element. It claims,
for instance, that Grundy created a plan for “managing contract software developers to write
programming code” but was ultimately “unsuccessful in building PassNinja into a viable, operating
business” on his own. Complaint ¶¶ 14, 15. Bunsen then began writing the programming code that
would become the Copyrighted Work on his own, spending “approximately 1,800 [sic] hours coding.”
Id. ¶ 21. These two allegations indicate that the code that formed the basis of the Copyrighted Work—
which was necessary to build the foundation for a business like AccessNinja—required substantial
effort to author, either through a team of developers or alone through extensive man-hours. There
would be no need for such extensive work if a similar code already existed, meaning that (according
to the allegations of the Complaint) authoring the code involved some degree of creativity. See Feist,
499 U.S. at 362 (“[T]he Constitution mandates some minimal degree of creativity, and an author who
claims infringement must prove the existence of intellectual production, of thought, and conception.”
(cleaned up)). And, even if the Copyright Worked were merely the product of compiling extant code,
it would still satisfy the originality standard as a “compilation.” See BUC Int’l Corp. v. Int’l Yacht Council
Ltd., 489 F.3d 1129, 1140–41 (11th Cir. 2007) (“While the [Copyright Act of 1976]
protects original expression, it is well established that this protection does not extend to any
underlying facts or ideas . . . Compilations of facts, however, may be copyrightable.”); see also Feist, 499
U.S. at 344 (“[F]acts are not copyrightable; . . . compilations of facts generally are.”). AccessNinja has
thus satisfied both elements of a direct copyright-infringement claim, and we accordingly DENY the
Motion to Dismiss as to Count I.

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B. Count II: Contributory Copyright Infringement
To prevail on a claim for contributory copyright infringement, the plaintiff must allege two
elements: “(i) direct infringement and (ii) intentional inducement or encouragement.” Microsoft Corp. v.
Guirguis, 2022 WL 1664181, at *3 (S.D. Fla. Mar. 30, 2022) (Altonaga, C.J.). As we’ve explained, direct
infringement requires the plaintiff to show “(1) ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original.” Jackson, 851 F. App’x at 173. To allege intentional
inducement or encouragement, on the other hand, the plaintiff must allege that the defendant is “one
who, with knowledge of the infringing activity, induces, causes or materially contributes to the
infringing conduct of another.” Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 845
(11th Cir. 1990) (cleaned up) (quoting Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987)). The
standard for “knowledge” is objective: the defendant must “[k]now, or have reason to know” of the
infringing activity. Ibid. (cleaned up). To meet this standard, the plaintiff may describe the affirmative
steps he has taken to encourage infringement, “such as advertising an infringing use or instructing
how to engage in an infringing use, show[ing] an affirmative intent that the product be used to infringe,
and a showing that infringement was encouraged.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 936 (2005).
Because we have determined that AccessNinja plausibly pled direct infringement, it has met
the first element of a contributory copyright-infringement claim. See Cable/Home, 902 F.2d at 845
(“Contributory infringement necessarily must follow a finding of direct or primary infringement.”).
And, since the Defendants fail to argue that AccessNinja didn’t allege “intentional inducement or
encouragement,” see generally Motion to Dismiss at 2–4 (only challenging Counts I and II on the
grounds that the “Allegations of the Complaint and Copyright Registration Nullify Each Other” and
that “There are No Plausible Allegations of Copying.”); Reply at 1–3 (same), the Defendants have
forfeited their right to challenge the sufficiency of this second element, see United States v. Campbell, 26
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F.4th 860, 873 (11th Cir. 2022) (en banc) (“[F]ailure to raise an issue in an initial brief . . . should be
treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte [only]
in extraordinary circumstances.”); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.
2014) (“We have long held that an appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without supporting arguments and authority.”);
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make
arguments and cite authorities in support of an issue waives it.”); In re Egidi, 571 F.3d 1156, 1163 (11th
Cir. 2009) (“Arguments not properly presented in a party’s initial brief or raised for the first time in
the reply brief are deemed waived.”). 3
Accordingly, we DENY the Motion to Dismiss as to Count II.
C. Count III: Misappropriation of Trade Secrets under FUTSA
The Defendants next argue that AccessNinja didn’t identify a protectable trade secret under
the Florida Uninform Trade Secrets Act (“FUTSA”). They contend that the basis of AccessNinja’s
FUTSA claim—that the Defendants allegedly misappropriated the Copyrighted Work’s “electronic
code”—is improperly “broad” because AccessNinja has not alleged which “electronic code”

Even if the Defendants had challenged the “intentional inducement or encouragement” element,
we’d still find that AccessNinja alleged enough facts to survive a motion to dismiss. Specifically,
Bunsen notified Grundy, on September 8, 2024, that AccessNinja revoked the limited authorization
Bunsen had previously granted him. See Complaint ¶ 28. Bunsen also “offered Grundy and PassNinja
the opportunity to license the Copyrighted Work from [AccessNinja] for a monthly fee,” but the
Defendants never paid for or obtained that license. Id. ¶¶ 28–29. Instead, “Grundy and PassNinja
unlawfully copied the Copyrighted Work and exploited it for commercial purposes.” Id. ¶ 29. When
Bunsen began submitting DMCA notices to service providers to remove the Copyrighted Work from
Passninja’s website, “Grundy and PassNinja submitted a DMCA Counter Notice . . . falsely
representing, under penalty of perjury, that PassNinja owned the Copyrighted Work and demanding
that it be restored.” Id. ¶ 35. These allegations are sufficient to establish that Grundy had knowledge
of the infringing activity and contributed to PassNinja’s alleged infringement. See Cable/Home, 902
F.2d at 845 (“This court has stated the well-settled test for a contributory infringer as one who, with
knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct
of another.” (cleaned up)).
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PassNinja purportedly misappropriated. Motion to Dismiss at 4–5. The Defendants also contend that
AccessNinja failed to identify any measure it took “to protect Plaintiff’s trade secrets vis-à-vis
Defendants.” Id. at 5 (cleaned up). AccessNinja counters that its Complaint specifically alleges that the
“Defendants misappropriated the Copyrighted Work” by falsely representing that the “Defendants
would transfer 51% of PassNinja’s stock to Bunsen” and by continuing “to use the Copyrighted Work
without authorization or consent after Bunsen revoked the limited revocable license he had granted
to PassNinja.” Response at 8.
To state a claim under FUTSA, a plaintiff must allege that “(1) it possessed a ‘trade secret’ and
(2) the secret was misappropriated.” Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1297
(11th Cir. 2018). FUTSA defines a trade secret as:
[I]nformation, including a formula, pattern, compilation, program, device, method,
technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
FLA. STAT. § 688.002(4); accord Yellowfin Yachts, 898 F.3d at 1297. Misappropriation generally means
that the secret was acquired by “a person who knows or has reason to know that the trade secret was
acquired by improper means[.]” FLA. STAT. § 688.002(2); see also Advantor Sys. Corp. v. DRS Tech. Servs.,
Inc., 678 F. App’x 839, 853 (11th Cir. 2017) (“‘Misappropriation’ [under FUTSA] generally means that
the secret was acquired by someone who knows or has reason to know that the secret was improperly
obtained or who used improper means to obtain it.”).
We agree with the Defendants that the Complaint lacks sufficient allegations that AccessNinja
took “any measures, let alone reasonable measures, to protect [AccessNinja’s] trade secrets vis-à-vis

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Defendants.” Motion to Dismiss at 5 (cleaned up). 4 AccessNinja argues that it took reasonable steps
to protect the Copyrighted Work, “including restricting accesses to the code, among other security
measures, including that the code was stored within a private GitHub account that was password
protected and required two-factor authentication.” Response at 9 (citing Complaint ¶ 60). While these
allegations show that AccessNinja tried to maintain the secrecy of the Copyright Work in general,
AccessNinja “has not pled that it took any steps to safeguard its trade secrets between itself and
Defendants.” Surfaces, Inc. v. Point Blank Enters., Inc., 2022 WL 18956038, at *5 (S.D. Fla. Dec. 27, 2022)
(Smith, J.) (emphasis added). On the contrary, AccessNinja’s Complaint fails to allege that it conveyed
the confidentiality of the Copyrighted Work to the Defendants and instead indicates that the
Defendants were licensed to access the Copyrighted Work—albeit on a limited basis. See Complaint ¶
20 (“During that time, in a good faith effort to collaborate on the contemplated new venture, Bunsen
granted Grundy limited access to the Copyrighted Work for the limited and exclusive purpose of
writing tutorials for potential customers to learn about NCF technology and its commercial
applications.”); id. ¶ 28 (“On September 8, 2024, Bunsen notified Grundy that [AccessNinja], as the
owner of the copyrights, revoked the limited authorization Bunsen had previously granted to Grundy
to access the Copyrighted Work for the limited, sole and exclusive purpose of writing customer
tutorials. Bunsen offered Grundy and PassNinja the opportunity to license the Copyrighted Work
from [AccessNinja] for a monthly fee.”). We cannot say that the Complaint establishes that, in its
dealings with the Defendants, AccessNinja took reasonable measures to protect the secrecy of the
Copyrighted Work.

On the other hand, we reject the Defendants’ argument that an “electronic code” is too “broad” to
be a trade secret. See Motion to Dismiss at 4–5. “Whether a particular type of information constitutes
a trade secret is a question of fact and cannot be resolved on a motion to dismiss.” Greenberg v. Miami
Children’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1076 (S.D. Fla. 2003) (Moreno, J.) (citing Del
Monte Fresh Produce Co. v. Dole Food Co., 136 F. Supp. 2d 1271, 1294 (S.D. Fla. 2001) (Gold, J.)).
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The cases the Defendants cite in their Motion to Dismiss support this conclusion. In Yellowfin
Yachts, for instance, the Eleventh Circuit affirmed the district court’s grant of summary judgment on
a FUTSA claim where “no reasonable jury could find that [the plaintiff] employed reasonable efforts
to secure the information” vis-à-vis the defendant, a former employee. Yellowfin, 898 F.3d at 1301.
Although the plaintiff “limit[ed] employee access to the information and password-protect[ed] the
computer network on which the information resided,” it (like AccessNinja here) failed to get the
defendant to sign an agreement to “keep all Yellowfin trade secrets in confidence” and did not instruct
the defendant to keep the information “confidential” or “secure[d] on his personal devices.” Id. at
1300.
Other cases have similarly held that, to state a valid FUTSA claim, a plaintiff in a FUTSA case
must allege that the defendant had notice that the information at issue was confidential. See, e.g.,
Greenberg, 264 F. Supp. 2d at 1077 (“[T]here is no allegation that MCH knew or should have known
that the Canavan Registry was a confidential trade secret guarded by Plaintiffs[.]”); Surfaces, 2022 WL
18956038, at *5 (“While Plaintiff was aware that Defendants had possession of the Demo Kit, the
only step Plaintiff took to protect its trade secrets was to ask Defendants to return the Demo Kit after
Defendants told Plaintiff that they would be putting the business discussions with Plaintiff on hold
until Plaintiff and the Trigon Defendants resolved their issues.”). Since the Complaint lacks these
crucial allegations, AccessNinja hasn’t stated a viable FUTSA claim—at least not yet. Cf. Treco Int’l
S.A. v. Kromka, 706 F. Supp. 2d 1283, 1287 (S.D. Fla. 2010) (King, J.) (“Thus, the Complaint alleges
that Plaintiffs took reasonable steps to protect the information by having Kromka sign the Non–
Disclosure Agreement and instructing Defendants not to disclose the information to third parties.”). 5

We therefore do not reach the second element, which asks whether the trade secret was
misappropriated. See Yellowfin Yachts, 898 F.3d at 1297.

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A dismissal under Rule 12(b)(6) is normally “on the merits and with prejudice,” White v. Lemma,
947 F.3d 1373, 1377 (11th Cir. 2020), and we are “not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend
or requested leave to amend before the district court,” Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc) (cleaned up). Nevertheless, we can (and will) exercise our
discretion in this case to “give” AccessNinja leave to amend Count III. FED. R. CIV. P. 15(a)(2); see also
Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (“[T]rial courts have broad
discretion in permitting or refusing to grant leave to amend.”). Accordingly, we’ll dismiss Count III
without prejudice and GRANT AccessNinja leave to file an amended complaint that addresses the
deficiencies we’ve identified in Count III.
II.

The Request for a More Definite Statement

A motion for a more definite statement under Rule 12(e) is appropriate only “if a pleading is
so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.”
Hernandez v. Two Brothers Farm, LLC, 579 F. Supp. 2d 1379, 1381 (S.D. Fla. 2008) (Martinez, J.) (cleaned
up); see also Anderson v. District Bd. of Trustees, 77 F.3d 364, 366 (11th Cir. 1996) (stating that a motion
for more definite statement is appropriate if it is “virtually impossible to know which allegations of
fact [in the complaint] are intended to support which claim(s) for relief.”). The Defendants’ request
for a more definite statement is just a demand that AccessNinja attach to the complaint the proposal
Bunsen made to Grundy. See Motion to Dismiss at 6 (“The Complaint intentionally fails to attach the
proposal and agreement described in paragraph 17. To the extent a writing exists and if there was any
written acceptance by the Defendants, to avoid unreasonable and multiplicity of the proceedings the
Plaintiff should be required to attach it to its Complaint to make a more definite statement, if it can.”).
But this isn’t an appropriate basis for requiring a more definite statement. The Plaintiff’s failure
to attach the proposal doesn’t make the Complaint “so vague or ambiguous” that the Defendants
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cannot reasonably be required to “frame a responsive pleading.” Hernandez, 579 F. Supp. 2d at 1381.
The Complaint’s description of the proposal is sufficiently clear to identify the source of AccessNinja’s
claims, and the Complaint’s failure to attach the proposal doesn’t prevent the Defendants from
responding to the Complaint. Nor can we say that, without the proposal, it would be “virtually
impossible” to know which allegations support each claim. Anderson, 77 F.3d at 366. AccessNinja’s
Complaint is well-pled, and Counts I and II are adequately supported by the Plaintiff’s factual
allegations. Accordingly, the Defendants’ request for a more definite statement is DENIED.
CONCLUSION
Accordingly, we hereby ORDER and ADJUDGE as follows:
1. The Defendants’ Motion to Dismiss [ECF No. 13] is GRANTED in part and DENIED in
part.
2. The Motion to Dismiss is DENIED as to Counts I and II and GRANTED as to Count III.
Count III is DISMISSED without prejudice.
3. The request for a more definite statement is DENIED.
4. The Plaintiff shall file an amended complaint by March 24, 2025.
DONE AND ORDERED in the Southern District of Florida on March 10, 2025.

__________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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