Bittman v. Fox et al
Filing
72
MEMORANDUM Opinion and Order: The motion to dismiss of defendants Fox and DuJan is granted in part and denied in part. Bittman's federal claims under the CFAA (Count I) and the SCA (Count II) are dismissed. Additionally, Bittman's state l aw claims for civil assault (Count VII), defamation per se (Count X), false light (Count XI), IIED (Count XII), and injunctive relief (Count XIII) are dismissed. All other claims remain. The answer of defendants Fox and DuJan is due by June 15, 20 15. The case will be reassigned to another United States District Judge because I am retiring from the court today. The parties are strongly encouraged to discuss settlement. Signed by the Honorable James F. Holderman on 6/1/2015. Notices mailed by Judicial Staff. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRIDGET BITTMAN,
Plaintiff,
v.
MEGAN FOX, KEVIN DUJAN,
DAN KLEINMAN, ADAM ANDRZEJEWSKI,
and FOR THE GOOD OF ILLINOIS,
an Illinois Not for Profit Organization,
Defendants.
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No. 14 C 8191
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, District Judge:
Plaintiff Bridget Bittman filed several alleged claims under federal and Illinois law
against defendants Megan Fox, Kevin DuJan, Dan Kleinman, Adam Andrzejewki, and For the
Good of Illinois.1 (Dkt. No. 34 (“Am. Compl.”)) Defendants Fox and DuJan have moved to
dismiss Bittman’s federal claims under the Computer Fraud and Abuse Act (Count I) and the
Stored Communications Act (Count II), as well as her state law claims for civil assault (Count VII),
defamation per se (Count X), false light (Count XI), intentional infliction of emotional distress
(Count XII), and injunctive relief (Count XIII) for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Dkt. No. 36 (“Defs.’ Mot.”).) For the reasons explained
below, defendants’ motion is granted.
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On May 22, 2015, counsel for defendants Adam Andrzejewski and For the Good of Illinois
informed the court that they have settled all of Bittman’s claims against them.
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RELEVANT FACTUAL BACKGROUND
Bittman is employed by the Orland Park Public Library, where she provides marketing
and public relations services. (Am. Compl. ¶¶ 17, 18.) In the fall of 2013, Megan Fox and Kevin
DuJan complained that the Orland Park Public Library provided unfiltered access to the Internet
and began efforts to change this policy. (Id. at ¶¶ 26, 28.) In her capacity as a representative of
the Orland Park Public Library, Bittman publicly responded to defendants’ complaints. (Id. at
¶ 27.)
Bittman alleges that as early as November 4, 2013, the Fox and DuJan began making and
causing to be made numerous false and defamatory statements about her. (Id. at ¶ 35.) On May
18, 2014, Fox posted the following comments on the Fans of Megan Fox Facebook Page:
I wonder at what point in their presentation at the Hatefest that Mary Weimar and
Bridget Bittman taught the other public employees in attendance about using the
police as a weapon against their perceived enemies in the “opposition.” Do you
know that the Orland Park Public Library Board contacted the police SIX TIMES
in total to make false police complaints against me (and a few times against Kevin
too)…
The Police laughed at all of these people, but sadly the police never charged any
of them with disorderly conduct for making false police reports. They should have
been charged.
(Id. at ¶¶ 36,37.)
On May 19, 2014, the Orland Park Public Library Board of Directors held a public
meeting, which Bittman, Fox, and DuJan attended. (Id. at ¶¶ 277-279.) Following a disruption
caused by Fox, Bittman proceeded to the back of the meeting room to call the Orland Park Police
Department. (Id. at ¶¶ 280-284.) As Bittman dialed 9-1-1, DuJan and another male followed and
approached her, which placed her in “apprehension of immediate, offensive contact.” (Id. at ¶¶
285-287.)
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On June 12, 2014, Fox posted a photograph, which she apparently obtained from an
Internet search, of Bittman holding a champagne bottle on the Fans of Megan Fox Facebook
Page. (Id. at ¶ 39.) In a comment to the post, Fox stated:
[Bittman] would have to be drunk to claim the ridiculous things she does about the
library in the media
“Sober up Bridget [t]he truth will set you free!”
(Id. at ¶ 40.)
On June 18, 2014, Defendant Fox posted photographs of Ms. Bittman’s home on the Internet.
(Id. at ¶ 44.) Bittman alleges that Fox and DuJan traveled to her home to take the photos and later
posted them in an attempt to harass and intimidate her. (Id. at ¶¶ 44-52.)
On July 8, 2014, Fox published a video on YouTube and titled the video “Bridget Bittman
commits Disorderly Conduct/Breach of Peace on 7/8/14 according to Officer Schmidt.” (Id. at ¶¶ 53-
54.) Bittman alleges that Fox and DuJan posted several captions to the video that contain
defamatory statements about her. (Id. at ¶¶ 53-89.)
On or about July 10, 2014, Defendants Fox and DuJan created a Facebook Page entitled
“Sassy Plants Illinois” (“Sassy Plants Facebook Page”) to impersonate Bittman and her floral
arrangement business. (Id. at ¶¶ 101-103.) Fox and DuJan posted Bittman’s personal photos as well
as photos of her floral arrangements without her authorization on the Sassy Plants Facebook Page.
(Id. at ¶¶ 105-109.) Fox and DuJan also posted statements intended to convince people that Bittman
actually operates the Facebook Page. (Id. ¶¶ 102-115.) Additionally, Fox and DuJan included
references to “fruits” as a derogatory term for homosexuals, falsely implying that Bittman is
prejudiced against homosexuals. (Id. at ¶ 124.)
On January 21, 2015, Bittman filed her thirteen-count complaint alleging claims under
federal and Illinois law against defendants Fox and DuJan. Fox and DuJan have moved to
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dismiss several claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.’
Mot.)
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint need contain only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Although “detailed factual allegations” are not required, “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. The complaint must “include sufficient facts ‘to state a claim for
relief that is plausible on its face.’” Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903
(7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). “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). In ruling on a Rule 12(b)(6) motion, the court “construe[s] the . . .
[c]omplaint in the light most favorable to Plaintiff, accepting as true all well-pleaded facts and
drawing all possible inferences in his favor.” Cole, 634 F.3d at 903.
ANALYSIS
I.
The Computer Fraud and Abuse Act and Stored Communications Act
In Counts I and II, Bittman asserts claims against Fox and DuJan under the Computer
Fraud and Abuse Act (“CFAA”), 18 USC § 1030, and the Stored Communications Act (“SCA”), 18
U.S.C. § 2707. The CFAA prohibits individuals from intentionally accessing secure computers
without authorization and damaging the computer or data. See 18 U.S.C. § 1030. Though primarily a
criminal statute, the CFAA provides a private right of action for “[a]ny person who suffers damage or
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loss by reason of a violation of this section ...” 18 U.S.C. § 1030(g). The SCA provides private right
of action to any “aggrieved” party against a defendant who “intentionally accesses without
authorization” or “intentionally exceeds an authorization to access” a “facility through which an
electronic communication service is provided ... and thereby obtains, alters, or prevents
authorized access to a wire or electronic communication while it is in electronic storage in such
system.” 18 U.S.C. § 2701(a)(1)-(2); see § 2707(a) (providing private right of action).
Bittman asks the court to find that Fox and DuJan are liable under the CFAA and the SCA
not for accessing Bittman’s own personal computer or social media account without authorization,
rather that they are liable for creating the Sassy Plants Facebook Page in violation of Facebook’s
terms of use. (Id.) Bittman argues that by creating the fake Sassy Plants Facebook Page using
photographs of her and her floral arrangements, Fox and DuJan violated Facebook’s terms of use,
thereby exceeding authorized access to Facebook’s computers. (Dkt. No. 65 (Pl.’s Resp.) at 4-6.)
Yet Bittman presents no precedent suggesting that either the CFAA or the SCA provides her with a
cause of action for the alleged conduct, and the court is aware of no such precedent.
The statutory purpose of the CFAA is to punish trespassers and hackers. See Kluber
Skahan & Associates, Inc. v. Cordogen, Clark & Assoc., Inc., No. 08-CV-1529, 2009 WL
466812, at *8 (N.D. Ill. Feb. 25, 2009); Int’l Airport Centers, L.L.C. v. Citrin, 440 F.3d 418, 420
(7th Cir. 2006) (“Congress was concerned with … attacks by virus and worm writers, on the one
hand, which come mainly from the outside, and attacks by disgruntled programmers who decide
to trash the employer’s data system on the way out…”). Likewise, “Congress enacted the
relevant provision of the SCA…to protect privacy interests in personal and proprietary
information from the mounting threat of computer hackers ‘deliberately gaining access to, and
sometimes tampering with, electronic or wire communications’ by means of electronic trespass.”
Devine v. Kapasi, 729 F. Supp. 2d 1024, 1026 (N.D. Ill. 2010) (citation omitted). This court is
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not persuaded that the either the CFAA or the SCA were enacted to punish the creation of a fake
social media account in violation of a social media company’s terms of service. See Matot v. CH,
975 F. Supp. 2d 1191, 1196 (D. Or. 2013) (“[T]he rule of lenity precludes application of the
CFAA … to defendants’ alleged creation of fake social media profiles in violation of social
media websites terms of use.”); United States v. Drew, 259 F.R.D. 449, 467 (C.D. Cal. 2009)
(“[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to
constitute intentionally accessing a computer without authorization or in excess of authorization,
the result will be that [the CFAA] becomes a law that affords too much discretion to the police
and too little notice to citizens who wish to use the Internet.”) (quotations and citations omitted).
Even assuming that Fox and DuJan violated Facebook’s terms of use by creating a fake
social media account to impersonate Bittman, such conduct does not constitute access “without
authorization” or “exceeding authorized access” as envisioned by the CFAA or the SCA. Fox and
DuJan are not hackers, nor are they virus or worm writers. They did not access a computer to
damage, steal, or tamper with Bittman’s data. Because the facts as alleged in Bittman’s complaint
cannot support a claim under the CFAA or the SCA, defendants’ motion to dismiss Claims I and II is
granted.
II.
State Law Claims
A. Civil Assault
In Count VII, Bittman brings an assault claim against DuJan. To survive dismissal, an
assault claim must include an allegation that the defendant’s intentional conduct placed the
plaintiff in reasonable apprehension of imminent battery.” McNeil v. Carter, 742 N.E.2d 1277,
1281 (Ill. App. 2001). Bittman alleges that on May 19, 2014, the Orland Park Public Library
Board of Directors held a public meeting, which Bittman, Fox, and DuJan attended. (Am. Compl.
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¶¶ 277-279.) Following a disruption caused by Fox, Bittman proceeded to the back of the
meeting room to call the Orland Park Police Department. (Id. at ¶¶ 280-284.) As Bittman dialed
9-1-1, DuJan and another male followed and approached her, which placed her in “apprehension
of immediate, offensive contact.” (Id. at ¶¶ 285-287.) Bittman responded by using her badge to
enter an adjacent private meeting room. (Id. at ¶ 289.) Once Bittman was in the private meeting
room, DuJan hung up the 9-1-1 call that Bittman initially placed. (Id. at ¶ 291.)
Under this set of facts, the court finds that Bittman has failed to allege any conduct that
would indicate DuJan was about to attack her. Bittman does not allege that DuJan made any
verbal threats or menacing gestures. Rather, the only conduct that Bittman describes is that
Dujan and another male “followed and approached” her across a public meeting room, and that
he hung up the telephone after Bittman had entered a secure room. Given the history of DuJan’s
vitriolic campaign against the Orland Park Public Library’s policy and his alleged harassment of
Bittman, she may have feared that DuJan’s actions may one day turn violent, “but a victim’s
fear… cannot transform a remote threat into an assault.” Kijonka v. Seitzinger, 363 F.3d 645, 648
(7th Cir. 2004) (finding that a necessary ingredient for assault is a threatening gesture or an
otherwise innocent gesture made threatening by accompanying words). Bittmans’s conclusory
allegation that DuJan’s conduct placed her in imminent apprehension of harmful and offensive
contact is not supported by her factual allegations. Accordingly, Count VII for assault fails to
state a claim upon which relief can be granted.
B. Defamation Per Se
In Count X, Bittman brings a claim of defamation per se against Fox and DuJan in relation to
their creation of the Sassy Plants Facebook Page. To state a claim for defamation under Illinois
law, Bittman must present facts showing that the defendants made a false statement about her,
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that the defendants made an unprivileged publication of that statement to a third party, and that
this publication caused damages. See Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009). A
statement is defamatory per se if its harm is obvious and apparent on its face. Id. In Illinois, there
are five categories of statements that are considered defamatory per se: (1) commission of a
criminal offense; (2) infection with a venereal disease; (3) inability to perform or want of
integrity in the discharge of duties of public office; (4) fornication or adultery; or (5) words that
prejudice a party in her trade, profession, or business. Bryson v. News America Publications,
Inc., 672 N.E.2d 1207, 1214-1215 (Ill. 1996).
Bittman argues that Fox and DuJan created the Sassy Plants Facebook Page to make it
appear to be the website of her floral design business, and that several statements posted on the
page are actionable as defamation per se because they are wrongfully attributed to her and
impute a lack of integrity and professionalism onto her and her business. (Pl. Resp. at 7-9)
Specifically, Bittman alleges that Fox and DuJan published the following statements on the
Sassy Plants Facebook Page:
1) “Sassiness is guaranteed.” (Am. Compl. ¶ 113.)
2) “[Y]ou should have a Sassy Plants Booth at your next big event including birthday
part[ies],wedding[s], graduation[s], funeral[s], or whatever.” (Pl. Resp. at 3.)
3) “Do you even have what it takes to arrange flowers this good? Probably not. You
probably shouldn’t even try because if you fail people will laugh at you. Sorry but it’s
true.” (Am. Compl. ¶ 114.)
Bittman also alleges that Fox and DuJan’s posts to the Facebook page contained repeated
distasteful references to individuals and objuects as “fruits,” which falsely implies that Bittman is
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prejudiced against gay individuals and illegally discriminates against gay individuals. (Id. at ¶
125.)
Bittman is not required to recite the alleged defamatory statements verbatim, but the
substance of any statement must be pleaded with “sufficient precision and particularity so as to
permit initial judicial review of its defamatory content.” Green, 917 N.E.2d 450, 459. With
regard to the “fruit” statements, Bittman merely asserts that defendants’ repeated use of the term
“fruit” on the Sassy Plants Facebook Page falsely implies that she is prejudiced against gay
individuals, but she points to no specific example. The term “fruit” lends itself to various
interpretations depending on the context. Bittman has failed to provide the context in which Fox
and DuJan used the term. Accordingly, the unidentified “fruit” statements cannot support a claim
for defamation per se. See Green, 917 N.E.2d at 460 (allegations that plaintiff “exhibited a long
pattern of misconduct with children” and “abused players, coaches, and umpires” are a
“summary of the types of statements,” not a “precise and particular account of the [allegedly
defamatory] statements”).
With the unidentified “fruit” statements cast aside, the court finds that the three
remaining statements quoted above are not highly offensive such that they should be considered
defamation per se. See Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 206 (1992)
(“Statements are considered defamatory per se when the defamatory character of the statement is
apparent on its face; that is, when the words used are so obviously and materially harmful to the
plaintiff that injury to his reputation may be presumed.”). The statements that Fox and DuJan
posted on the Sassy Plants Facebook Page, even if wrongly attributed to Bittman, do not
obviously impute to her or her business a lack of professionalism.
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Even if the statements were defamatory per se, they are not actionable because they are
susceptible to an innocent construction. “It is well settled that, even if an alleged statement falls
into one of the categories of words that are defamatory per se, it will not be actionable per se if it
is reasonably capable of an innocent construction.” Green, 917 N.E.2d at 463 (dismissing
plaintiff’s defamation per se claim because statements that plaintiff committed “abuse” and
“misconduct with children” were capable of innocent construction). The meaning of a statement
is not a fact for the jury to find, but a question of law to be resolved by the court. See Lott v.
Levitt, 556 F.3d 564, 568 (7th Cir. 2009). And while the court must take all well-pleaded
allegations in a complaint as true, the court need not “take the plaintiff’s interpretation of the
allegedly defamatory words at face value.” Id. at 569. Here, the court does not strain to view the
Sassy Plants Facebook Page as a mocking impersonation of Bittman and her floral business. To
further the impersonation, Fox and DuJan added the type of statements one might expect to find
on a small business’ Facebook page. Viewed in this context, the alleged statements can be
readily interpreted as innocuous solicitations of customers made by defendants in furtherance of
their impersonation.
At its root, Bittman’s claim for defamation per se in Count X appears concerned with the
“callous, mocking tone” used on the Sassy Plants Facebook Page. (Am. Compl. ¶ 125.) She
believes the website reflects poorly on her and her floral design business. But it is not enough
that statements posted on the website are wrongfully attributed to Bittman, the statements must
be defamatory per se. Because Bittman has failed to specifically allege any defamatory per se
statements that are not susceptible to an innocent construction, her claim for defamatory per se is
dismissed.
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C. False Light
In Count XI, Bittman brings a false light claim against Fox and DuJan. The false light tort
protects the “interest in being free from false publicity.” Moriarty, N.E.2d at 741 (Ill. App. Ct.
2000). To state a claim for false light, the allegations in the complaint must first show that the
plaintiff was placed in a false light before the public as a result of the defendant’s actions, that
the false light would be highly offensive to a reasonable person, and that the defendant acted
with actual malice. Kolegas, 607 N.E.2d at 209-210.
Defendants argue that Bittman’s false light claim should be dismissed on the same
grounds they raised with respect to her defamation per se claim. “While it is not necessary to be
defamed to maintain a false light claim, the similarities between defamation and false light
claims may make certain restrictions and limitations for defamation equally applicable to false
light claims.” Moriarty, 732 N.E.2d at 741-742. And if a false light claim is based on statements
that are not defamatory per se, special damages too must be pleaded. Muzikowski v. Paramount
Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003).
The court has already determined that Bittman failed to allege any statements that are
defamatory per se. Viewing the facts and all reasonable inferences in Bittman’s favor, she has
failed to sufficiently allege a false light claim because she has not alleged special damages. See
Muzikowski, 322 F.3d at 927. A pleading of special damages requires extrinsic facts that show
actual damage to reputation and pecuniary loss resulting from the defamatory statement.
Dornhecker v. Ameritech Corp., 99 F.Supp.2d 918, 933 (N.D. Ill. 2000) (citing Bryson, 672
N.E.2d at 1214). In her Amended Complaint, Bittman alleged only “suffering, harmed
reputation, embarrassment, and emotional distress.” (Am. Compl. ¶ 353.) Such conclusory
allegations do not constitute a pleading of special damages. Accordingly, defendants’ motion to
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dismiss Count XI is granted.
D. Intentional Infliction of Emotional Distress
In Count XII, Bittman brings a state law claim of intentional infliction of emotional
distress (“IIED”) against Fox and DuJan. Fox and DuJan argue that Bittman has failed to
adequately plead her IIED claim because she has not alleged facts establishing that any of the
defendants’ conduct was extreme and outrageous. Under Illinois law, a plaintiff must prove that:
“(1) the defendants’ conduct was extreme and outrageous; (2) the defendants knew that there was
a high probability that their conduct would cause severe emotional distress; and (3) the conduct
in fact caused severe emotional distress.” Swearnigen–El v. Cook Cty. Sheriff’s Dept., 602 F.3d
852, 864 (7th Cir. 2010). “To meet the ‘extreme and outrageous’ standard, the defendants’
conduct ‘must be so extreme as to go beyond all possible bounds of decency, and to be regarded
as intolerable in a civilized community.’” Id. (quoting Kolegas, 607 N.E.2d at 211). Whether
conduct is extreme and outrageous “necessarily depends on the facts of each case.” Ulm v. Mem.
Med. Ctr., 964 N.E.2d 632, 641 (Ill. App. 2012).
Here, Bittman alleges that defendants repeatedly defamed her. Fox and DuJan made
statements falsely imputing criminal conduct to her. (Am. Compl. ¶ 60.) They made statements
falsely accusing her of discriminatory conduct. (Id. at ¶ 127.) Fox and DuJan also used a photo
obtained from the Internet in which Bittman is drinking a glass of champagne to claim that she
drinks at work. (Id. at ¶ 127.) In addition to the alleged defamation, Fox and DuJan traveled to
Bittman’s residence and took photos of her house and posted them on the Internet. (Id. at ¶¶ 4449.) They also created the Sassy Pants Facebook Page to impersonate and defame Bittman’s
floral arrangement business. (Id. at ¶¶ 101-104.)
Assuming Bittman’s allegations to be true, the defendants engaged in a pattern of
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distasteful, mean-spirited, and vindictive conduct, which surely caused Bittman some degree of
frustration and mental anguish. Nonetheless, the court agrees with defendants that the conduct
described by Bittman in her Amended Complaint was not “extreme and outrageous, exceeding
all bounds of human decency.” The standard for an IIED claim is high, and “under no
circumstances [do] mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities qualify as outrageous conduct.” Feltmeier v. Feltmeier, 798 N.E.2d 75, 80 (Ill. 2003)
(internal citations and quotations omitted). Because Fox and DuJan’s failed to allege sufficient
extreme and outrageous conduct, defendants’ motion to dismiss Count XII is granted.
E. Injunctive Relief
In Count XIII, Bittman asserts a claim for injunctive relief. Defendants argue that this
claim must be dismissed because injunctive relief is a remedy and not a separate claim. (Defs.’
Mem. at 14.) Bittman does not address this issue in her response. The court agrees with
defendants that an injunction is an equitable remedy, not a separate cause of action. See
CustomGuide v. CareerBuilder, LLC, 813 F. Supp. 2d 990, 1002 (N.D. Ill. 2011) (dismissing
with prejudice a claim for injunction). Accordingly, Bittman’s claim for injunctive relief is
dismissed. The court expresses no opinion as to whether Bittman may ultimately be entitled to
equitable injunctive relief.
CONCLUSION
For the reasons explained above, the motion to dismiss of defendants Fox and DuJan is
granted in part and denied in part. Bittman’s federal claims under the CFAA (Count I) and the
SCA (Count II) are dismissed. Additionally, Bittman’s state law claims for civil assault (Count
VII), defamation per se (Count X), false light (Count XI), IIED (Count XII), and injunctive relief
(Count XIII) are dismissed. All other claims remain. The answer of defendants Fox and DuJan is
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due by June 15, 2015. The case will be reassigned to another United States District Judge
because I am retiring from the court today. The parties are strongly encouraged to discuss
settlement.
ENTER:
_______________________________
JAMES F. HOLDERMAN
District Judge, United States District Court
Date: June 1, 2015
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