Vehicle Valuation Services Inc. v. DiMaria et al

Filing 39

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/10/2013:Civil case terminated. Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VEHICLE VALUATION SERVICES,
Plaintiff,
Case No. 13 C 5094

v.

Hon. Harry D. Leinenweber

DARREN DiMARIA, MITCHELL
HERWALDT, KEVIN GIPSON, DiMARIA
COMPANIES, INC., d/b/a DCI
SOLUTION, and DAVID DiMARIA,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Dismiss.

For

the reasons stated herein, the Motion is granted.
I.

BACKGROUND

This case resulted from a dispute between Plaintiff Vehicle
Valuation Services (hereinafter, “Plaintiff” or “VVS”) and its former
employees. The Defendants include Darren DiMaria, Mitchell Herwaldt,
Kevin

Gipson,

David

DiMaria,

and

DiMaria

Companies

(the

“Defendants”).
Plaintiff alleges that Defendant Darren DiMaria resigned his
employment suddenly and unexpectedly.

Plaintiff recovered data from

Darren DiMaria’s computer that indicated that he had emailed himself
various

documents,

Plaintiff’s
organized

spreadsheets,

proprietary

DiMaria

business

Companies

and

and

images

information.
started

doing

that

contained

Defendants
business

as

then
DCI

Solution (“DCI”), in competition with VVS.

Plaintiff alleges that

Defendants have failed to return all of the data that Darren DiMaria
took when he left.

Plaintiff does not allege any damage to its

computers, devices, or software.
In Count I, Plaintiff alleges that Darren DiMaria violated the
Computer Fraud and Abuse Act (the “CFAA”), 18 U.S.C. § 1030 et seq.
Plaintiff brings Count II, for Breach of Fiduciary Duty under state
law,

against

Defendants

Herwaldt,

Gipson,

and

Darren

DiMaria.

Count III, a state law claim for civil conspiracy, is brought against
DCI and David DiMaria.
II.

LEGAL STANDARD

A Complaint must provide a short and plain statement of the
claim showing the plaintiff is entitled to relief.
P. 8(a)(2).

FED. R. CIV.

Detailed factual allegations are not required, but a

formulaic recitation of the elements of a cause of action will not
do.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The

complaint must “plead[] factual content that allows the court to draw
the

reasonable

inference

misconduct alleged.”

that

the

defendant is

liable

for

the

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The Court construes a complaint in the light most favorable to the
plaintiff and accepts all well-pled facts as true.
of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).

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Justice v. Town

III.
A.

ANALYSIS
CFAA Claim

A civil claim under the CFAA requires (1) damage or loss; (2)
caused

by;

(3)

a

violation

of

a

substantive

provision

in

Section 1030(a); and (4) conduct involving one of the factors in
subsection 1030(c)(4)(A)(i)(I)-(V).

18 U.S.C. § 1030(g).

Plaintiff’s claim is based on § 1030(a)(5)(A), which allows for
a civil cause of action against one who
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 computer.
18 U.S.C. § 1030(a)(5)(A).

“Damage” means “any impairment to the

integrity

of

or

information.”

availability

data,

a

program,

a

system,

or

18 U.S.C. § 1030(e)(8).

Plaintiff alleges that Defendant “Darren DiMaria intentionally
caused

damage

without

authorization

computers then owned by VVS.”

to

Compl. ¶ 45.

one

or

more

protected

But that allegation is

insufficient, as it is no more than recitation of an element of the
CFAA.

Nowhere else in the Complaint does Plaintiff allege that its

data has been lost or damaged.

Nor does Plaintiff allege expenses

related to business interruption.

Plaintiff complains that data was

copied and has not been returned, but copying or downloading business
information is not “damage” to a protected computer under the CFAA.
Garelli Wong & Assocs., Inc. v. Nichols, 551 F.Supp.2d 704, 710 (N.D.
Ill. 2008).

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The complaint must provide factual content that shows that
Plaintiff has suffered the type of damage contemplated by the statute
– some harm to “data, a program, a system, or information.”
U.S.C. § 1030(e)(8).

18

Because it does not do so, it fails to state a

claim upon which relief can be granted.
Because Plaintiff’s Count I fails for this reason, the Court
declines to

address

other

possible

grounds

for

dismissal.

If

Plaintiff decides to amend, Plaintiff would be wise to ensure that
the Complaint pleads facts for every element of any asserted claims.
B.

State Law Claims

Counts II and III are state law claims, before the Court on a
pendant jurisdiction basis.

With the only federal claim dismissed,

these counts are dismissed for lack of subject matter jurisdiction.
IV.

CONCLUSION

For the reasons stated herein, the Defendants’ Motion to Dismiss
is granted.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date: October 10, 2013

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