Tamlyn v. BlueStone Advisors LLC et al
Filing
25
MEMORANDUM OPINION AND ORDER: For the reasons stated herein, BlueStone's Motion to Dismiss [ECF No. 12] is granted. Counts III and IV are dismissed without prejudice. Oral ruling set for 4/26/18 is vacated. Status hearing set for 4/26/18 at 9:00 a.m. for further scheduling. Signed by the Honorable Harry D. Leinenweber on 4/24/18:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN TAMLYN,
Plaintiff,
v.
Case No.
BLUESTONE ADVISORS, LLC, an
Illinois Limited Liability
Company; ANDREW ROYCE,
Individually; and TRACIE
RASMUSSEN, Individually,
17 C 8893
Judge Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants
BlueStone
Advisors
and
Andrew
Royce
(collectively, “BlueStone”) move to dismiss Counts III and IV of
the Complaint for failure to state a claim [ECF No. 12].
For
the reasons stated herein, the Court grants the Motion in full
and dismisses both Counts without prejudice.
I.
Kevin
Tamlyn
BlueStone
from
parties’
shared
BACKGROUND
(“Tamlyn”)
July
2016
employment
sold
to
commercial
June
2017.
agreement,
insurance
According
Tamlyn
for
to
the
generated
new
clients for BlueStone and also renewed existing ones.
For those
services, BlueStone paid Tamlyn a base salary plus commissions.
At some point, Tamlyn began to suspect that BlueStone was not
paying him all of the commissions he had earned.
He asked
BlueStone for an accounting but did not receive one.
Toward the
end of his employment with BlueStone, Tamlyn courted a company
called Framarx Corp. to become a new BlueStone client.
But
Tamlyn alleges that on June 19, 2017, before he could put a bow
on the Framarx negotiations, BlueStone advised him that he would
not receive any commission for the Framarx account nor for “any
other clients [he] had already acquired.”
¶ 12.)
On June 23, 2017, Tamlyn’s employment with BlueStone
terminated.
the
(Compl., Dkt. 1-1
The details of this termination are not clear from
complaint;
terminated
Tamlyn
“as
[employment]
a
simply
result
Agreement.”
states
of
(Id.
that
BlueStone’s
¶ 15.)
his
employment
breach
of
Regardless,
the
Tamlyn
explains that BlueStone did not pay him any commission for the
Framarx account nor for several other accounts Tamlyn either
generated or renewed.
In a July 9, 2017 letter confirming Tamlyn’s termination,
BlueStone asked that Tamlyn turn over his username and password
to his SHOP Marketplace account.
such
accounts
licensed
accounts,
plan
are
hosted
insurance
manage
options,
termination,
he
brokers
client
and
by
the
Healthcare.gov
to
maintain
relationships,
provide
was
According to the Complaint,
quotes.
only
At
BlueStone
- 2 -
and
are
corporate
conduct
the
by
insurance
renewals,
time
employee
used
of
with
vet
Tamlyn’s
a
SHOP
account.
Yet BlueStone ostensibly needed to access the SHOP
Marketplace
July 7,
even
2017,
after
a
Tamlyn’s
BlueStone
termination,
employee
however,
allegedly
so
phoned
on
the
Marketplace Call Center and pretended to be Tamlyn to secure the
Call
Center’s
credentials,
assistance
thus
in
transitioning
there into BlueStone’s hands.
Tamlyn
sued
removed
BlueStone
that
action
in
changing
the
log-in
information
client
stored
As a result of these behaviors,
Illinois
and
Tamlyn’s
now
state
moves
to
court.
BlueStone
dismiss
two
of
the
III,
for
Complaint’s five counts for failure to state a claim.
II.
Specifically,
violations
of
the
DISCUSSION
BlueStone
Computer
moves
Fraud
to
and
dismiss
Abuse
Count
Act
(“CFAA”),
18
U.S.C. § 1030 et seq., and Count IV, for tortious interference
with prospective economic advantage.
On this Motion to Dismiss,
the Court accepts all well-pleaded allegations as true and draws
all reasonable inferences in favor of the plaintiff.
Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
A.
The CFAA (Count III)
To state a claim under the CFAA, a plaintiff must allege
(1) damage or loss; (2) caused by (3) a violation of one of the
substantive provisions set forth in § 1030(a), and (4) conduct
involving
one
of
the
factors
- 3 -
of
harm
set
forth
in
§ 1030(c)(4)(A)(i)(I)–(VI).
Maximum
Smith,
636
218
F.Supp.3d
omitted).
In
this
630,
case,
Indep.
(N.D.
Tamlyn
Brokerage,
Ill.
alleges
2016)
LLC
v.
(citations
BlueStone
violated
§ 1030(a)(3), which prohibits:
intentionally, without authorization to access any
nonpublic computer of a department or agency of the
United States, access[ing] such a computer of that
department or agency that is exclusively for the use
of the Government of the United States or, in the case
of a computer not exclusively for such use, is used by
or for the Government of the United States and such
conduct affects that use by or for the Government of
the United States[.]
18 U.S.C. § 1030(a)(3).
Finally, of the six possible “factors
of harm” required in the fourth CFAA element, only one could
possibly be present here based on the current allegations.
That
is “loss to 1 or more persons during any 1-year period . . .
aggregating at least $5,000 in value” in economic damages.
18
U.S.C. § 1030(c)(4)(A)(i)(I), (g).
Tamlyn
argues
that
when
BlueStone
accessed
the
SHOP
Marketplace using Tamlyn’s wrongly-begotten log-in credentials,
BlueStone
intentionally
nonpublic,
governmental
Tamlyn
by
Marketplace.
As
a
depriving
without
computer
him
of
authorization
and
his
that
said
valuable
accessed
access
access
a
harmed
to
the
There are several problems with this allegation.
threshold
BlueStone’s
and
access
matter,
of
the
however,
Tamlyn
Marketplace
- 4 -
is
through
correct
that
Healthcare.gov,
which
is
allegedly
hosted
on
U.S.
government
constituted accessing a government computer.
servers,
See, 18 U.S.C.
§ 1030(a)(3).
As the Eighth Circuit summarized: “The language
of
§
18
U.S.C.
1030(e)(1)
[(which
defines
“computer”)]
is
exceedingly broad. If a device is ‘an electronic . . . or other
high
speed
arithmetic,
data
or
processing
storage
device
functions,’
it
performing
is
a
logical,
computer.
This
definition captures any device that makes use of a[n] electronic
data processor, examples of which are legion.”
United States v.
Kramer, 631 F.3d 900, 902-03 (8th Cir. 2011) (citations omitted)
(noting that coffeemakers, microwave ovens, watches, telephones,
children’s toys, MP3 players, refrigerators, heating and airconditioning units, radios, alarm clocks, televisions, and DVD
players fit within the statutory definition of “computer”).
The
Kramer court further recognized that while this definition might
have
a
broad
sweep,
possible
over-breadth
is
a
matter
for
Congress, not the courts, to correct: “As more devices come to
have
built-in
intelligence,
[§ 1030(e)(1)] grows.
statute
but
does
not
the
effective
scope
of
This might prompt Congress to amend the
authorize
the
judiciary
to
give
the
existing version less coverage than its language portends.”
Id.
at 904 (quoting United States v. Mitra, 405 F.3d 492, 495 (7th
Cir. 2005)).
BlueStone’s alleged access of a government server
- 5 -
fits within that expansive definition.
Accord, United States v.
Drew, 259 F.R.D. 449, 461 (C.D. Cal. 2009) (treating access of a
private company’s server through use of that company’s website
as accessing a computer under the CFAA); but cf. Fidlar Techs.
v. LPS Real Estate Data Sols., Inc., 810 F.3d 1075, 1084 (7th
Cir. 2016) (finding that a three-tiered system comprising county
databases,
facilitated
a
user-interface,
communication
and
between
a
“middle
the
tier”
databases
that
and
the
interface did not meet the definition of “computer”).
Beyond
fall short.
server
this,
however,
Tamlyn’s
CFAA
allegations
largely
He maintains that BlueStone accessed the government
“without
authorization”
because
BlueStone
secured
that
access only by recovering Tamlyn’s log-in credentials through
misrepresentation.
whether,
On
this
score,
notwithstanding
misrepresentations,
Tamlyn’s
the
parties
BlueStone’s
employment
argue
over
telephonic
agreement
vested
in
BlueStone a right to all of the data Tamlyn created in his SHOP
account and thus, by definition, BlueStone was authorized to
access
the
account
irrespective
of
Tamlyn’s
consent.
But
Tamlyn’s “without authorization” argument is hamstrung by his
failure
to
“nonpublic.”
allege
plausibly
These
two
that
the
server
elements—“without
in
question
authorization”
is
and
“nonpublic”—are related, because if a computer is public, the
- 6 -
public is de facto authorized to access it.
See, Int’l Airport
Centers, L.L.C. v. Citrin, 440 F.3d 418, 420 (7th Cir. 2006)
(remarking
in
dicta
that
the
public
websites open to the public).
authority
defining
is
authorized
of
includes
Legal
“nonpublic”
“most
Education
government
access
Here, neither party cites any
in
the
CFAA
Court’s own efforts have turned up little.
Office
to
has
explained
computers,
but
context,
and
the
However, the DOJ’s
that
not
“nonpublic”
[government]
Internet servers that, by design, offer services to members of
the general public.”
Education,
U.S. Dep’t of Justice Office of Legal
Prosecuting
Computer
https://www.justice.gov/
Crimes
(2015),
sites/default/files/criminal-
cips/legacy/2015/01/14/ccmanual.pdf.
Here, Tamlyn alleges that
any member of the public with a broker’s license can create a
SHOP account and use it to access the government server.
It is
not clear, however, that a mere licensure requirement renders a
computer
“nonpublic”
guiding
authority,
under
the
subsection
Court
is
(a)(3),
doubtful
and
that
absent
it
any
would.
Ultimately, though, the Court need not decide whether Tamlyn has
plausibly alleged that the accessed server was nonpublic; his
CFAA claim fails for another reason.
Simply enough, Tamlyn stumbles in alleging the requisite
damages.
Because none of the other “factors of harm” set forth
- 7 -
in § 1030(c)(4)(A)(i) could plausibly fit the facts here, Tamlyn
must allege that he suffered at least $5,000 in economic damages
within one year.
Id.; 18 U.S.C. § 1030(g).
He does not do so.
Tamlyn argues the Court should simply infer that the loss of
access
to
his
SHOP
account
“meet[s]
damages claim under [the] CFAA.”
the
requirements
for
(Compl., Dkt. 22 at 2.)
the Twombly/Iqbal pleading standard is not so forgiving.
a
But
See,
Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Tamlyn must specifically allege damages as
well as an explanation for how BlueStone’s conduct caused them.
He cannot hope to limp into court on inference alone.
See,
e.g., Modrowski v. Pigatto, No. 09 C 7002, 2010 WL 2610656, at
*2 (N.D. Ill. June 25, 2010) (dismissing a CFAA § (a)(2) claim
for lack of requisite specificity in alleging damages).
fails
to
state
a
CFAA
claim,
and
Count
III
is
Tamlyn
accordingly
dismissed without prejudice.
B.
To
state
a
Tortious Interference (Count IV)
claim
under
Illinois
law
for
intentional
interference with prospective economic advantage, “a plaintiff
must allege (1) a reasonable expectancy of entering into a valid
business
relationship,
(2)
the
defendant’s
knowledge
of
the
expectancy, (3) an intentional and unjustified interference by
the defendant that induced or caused a breach or termination of
- 8 -
the expectancy, and (4) damage to the plaintiff resulting from
the defendant’s interference.”
Co., 806
F.3d
967,
971
(7th
Foster v. Principal Life Ins.
Cir.
2015)
(citations
omitted).
Tamlyn alleges that his SHOP account held information related to
his former clients and that BlueStone’s seizure of his account
prevented him from continuing to service those clients.
First
of all, BlueStone points out that Tamlyn’s employment agreement
forbade him from “engag[ing] in any other gainful employment,”
so Tamlyn could not, while still employed, have developed any
client
relationships
BlueStone.
Further,
former
2019.
of
those
he
cultivated
for
(Employment Agreement, Ex. A to Compl., Dkt. 1-1.)
the
agreement
BlueStone
termination.
independent
restricted
clients
for
at
Tamlyn
least
from
two
servicing
years
after
any
his
That two-year proscription does not end until June
As such, BlueStone argues that the only SHOP account
client data to which Tamlyn would be entitled access would be
data
for
clients
whose
relationships
predated—and
presumably were paused during—Tamlyn’s employment.
then
Tamlyn does
not dispute this reading of the agreement, though he argues in
response that the agreement, or at least portions of it, is not
enforceable.
This
argument
is
alleges unenforceability.
- 9 -
new.
The
Complaint
nowhere
Either way, Tamlyn’s claim does not pass muster because he
fails to allege plausibly that BlueStone knew of any reasonable
business expectancy.
There are two groups of possible clients
to consider: those clients Tamlyn serviced while in BlueStone’s
employ, and those clients Tamlyn worked with prior to, and not
during, his year in BlueStone’s employ.
Tamlyn argues that the
post-employment restrictive covenant contained in his employment
agreement is not enforceable, and so he was free to service
former BlueStone clients after his termination.
misses
the
mark.
The
question
in
the
tortious
This argument
interference
analysis is not whether Tamlyn was bound by the covenant, but
rather whether BlueStone believed he was.
If BlueStone believed
as much, BlueStone would also believe Tamlyn could not have any
reasonable
business
expectancy
with
former
BlueStone
clients.
But Tamlyn never alleges that BlueStone had reason to doubt the
enforceability of the post-employment covenant or the agreement
generally, so his tortious interference claim has no legs vis-àvis the first group of clients.
Next, Tamlyn’s allegations fare
no better regarding the second group of possible clients.
He
alleges that: “Defendants knew of [his] reasonable expectations
of
continuing
his
existing
business
relationships
clients serviced through on [sic] his SHOP account.”
Dkt. 1-1 ¶ 49.)
with
the
(Compl.,
But even if Tamlyn means to refer to pre- 10 -
BlueStone-employment
clients,
he
has
not
explained
who
these
clients are, why he reasonably expected to be able to work with
them after an ostensible year without professional contact, or
how
BlueStone
Complaint
on
came
to
this
know
about
score
allegations do not suffice.
is
such
an
threadbare,
expectation.
and
His
threadbare
Firestone Fin. Corp. v. Meyer, 796
F.3d 822, 827 (7th Cir. 2015) (citing Iqbal, 556 U.S. at 678).
Count V is dismissed without prejudice
III.
For
Dismiss
the
[ECF
CONCLUSION
reasons
stated
No.
is
12]
herein,
granted.
BlueStone’s
Counts
III
Motion
and
IV
to
are
dismissed without prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
4/24/2018
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?