Associated Pump & Supply Co., LLC v. Dupre et al

Filing 14

ORDER & REASONS: granting in part and denying in part 9 Defendants Kevin P. Dupre, Bayou Rain and Drain Pump and Supply, LLC, and Infinity Pump and Supply, LLC's Motion to Dismiss Under Rule 12(b)(6); ORDERED that Counts One and Eight of Pl aintiff's Complaint are DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Plaintiff is granted leave to amend Counts One and Eight of its Complaint. The amended complaint must be filed within thirty (30) days of this order. Failure to timely file an amended complaint will result in the dismissal of Counts One and Seven with prejudice. FURTHER ORDERED that Defendants' motion is DENIED in all other respects. Signed by Judge Carl Barbier on 4/3/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ASSOCIATED PUMP & SUPPLY CO.,
LLC

CIVIL ACTION

VERSUS

NO: 14-9

KEVIN P. DUPRE, ET AL

SECTION: "J" (2)

ORDER & REASONS
Before the Court is Defendants Kevin P. Dupre ("Dupre"),
Bayou

Rain

Drain"),

and
and

Drain

Pump

Infinity

and

Pump

Supply,
and

LLC

Supply,

("Bayou
LLC

Rain

and

("Infinity

Pump")(collectively, "Defendants")'s Motion to Dismiss Under Rule
12(b)(6) (Rec. Doc. 9), Plaintiff Associated Pump & Supply Co.,
LLC ("Associated Pump")'s opposition thereto, and Defendants'
reply memorandum. (Rec. Doc. 11) Defendants' motion was set for
hearing on March 26, 2014, on the briefs. Having considered the
motion and memoranda of counsel, the record, and the applicable
law, the Court finds that Defendants' motion should be GRANTED IN
PART AND DENIED IN PART for the reasons set forth more fully
below.

1

FACTS AND PROCEDURAL BACKGROUND
This
Defendants

matter
for

arises

breach

of

out

of

Plaintiff's

contract

and

claims

conversion,

against
and

for

violations of the Louisiana Unfair Trade Practices Act, La. R.S.
§ 51:1405 ("LUTPA"), the Louisiana Trade Secrets Act, La. R.S. §
51:1431 et seq. ("LUTSA"), the Computer Fraud and Abuse Act, 18
U.S.C. § 1030(a)(4) ("CFAA"), and the Stored Communications Act,
18 U.S.C. § 2701 ("SCA").1 For the purposes of the instant motion
to dismiss, the Court will summarize the facts as alleged in
Plaintiff's verified complaint. (Rec. Doc. 1)
Associated Pump employed Dupre as a salesman covering a
territory that included numerous parishes within Louisiana. In
connection with Dupre's employment with Associated Pump, he had
access to "highly sensitive and confidential customer, product
and trade secret information" that belonged to Plaintiff and to
manufacturers associated with Plaintiff. (Rec. Doc. 1, p. 3, ¶ 8)
Dupre's employment was memorialized though a Confidentiality and
Non-Competition Agreement (the "Agreement") which: (1) prohibited
Dupre

from

sharing

Plaintiff's

confidential

and

proprietary

information; (2) obligated Dupre to return certain materials upon
termination

of

his

employment;

1

and

(3)

imposed

restrictive

This Court has jurisdiction over Plaintiff's claims based on 28 U.S.C.
§ 1331 and 28 U.S.C. § 1367.

2

covenants

that

solicitation

restrained

activities

Dupre

for

a

from

certain

period

of

following the termination of his employment.2

competition

twenty-four

and

months

In addition to the

Agreement, Dupre was also aware of Plaintiff's policies regarding
non-disclosure of confidential information and trade secrets.
In March 2013, while Dupre was still employed by Plaintiff,
Plaintiff alleges that Dupre started his own company, Defendant
Bayou Rain and Drain, in order to compete with Plaintiff. Dupre
then began discussions with Defendant Infinity Pump, while still
employed by Plaintiff, and then resigned his employment with
Plaintiff on August 12, 2013. Following his resignation, Dupre
worked for Infinity Pump within the restricted parishes listed in
the

Agreement.

authorization,

Plaintiff
Dupre

further

downloaded

alleges

computer

that,
files

without

containing

Plaintiff's confidential information and trade secretes in order
to use such information in his outside employment and that Dupre
deleted

from his work computer several files and documents

belonging to Plaintiff.
As
against

a

result

Defendants

of
on

these

allegations,

January

2,

2014.

Plaintiff
After

filed

receiving

suit
an

extension of time to file responsive pleadings to the Complaint,

2

Plaintiff attaches an unsigned agreement to its Complaint because, as
will be discussed below, Dupre's signed Agreement allegedly cannot be located.

3

Defendants filed the instant motion in lieu of filing an answer
on March 7, 2014.
PARTIES' ARGUMENTS
A. Count One: Breach of Contract
Defendants argue that Plaintiff's breach of contract claim
should

be

dismissed

because

the

Confidentiality

and

Non-

Competition Agreement attached to the Complaint is unsigned and
unenforceable

and,

by

attaching

the

unenforceable

agreement,

Plaintiff negates its corollary allegations in Count One of its
Complaint

that

are

predicated

on

the

existence

of

a

valid

Agreement. In support of this argument, Defendants cite to Action
Revenue Recovery, L.L.C. v. eBusiness Group, L.L.C., No. 44,607
(La.App. 2 Cir. 8/19/09) 17 So.3d 999 wherein the Louisiana
Second

Circuit

granting

of

Court

of

defendant's

Appeals
motion

affirmed
for

the

summary

trial

judgment

court's
on

the

grounds that the non-competition agreement was unsigned. Action
Revenue
agreement

Recovery,
was

not

L.L.C.
signed

17
was

So.3d

at

1002

undisputed)

(fact

(emphasis

that

the

added).

Defendant further looks to Sally Beauty Co. v. Barney, 442 So. 2d
820, 823 (La. Ct. App. 1983) wherein the Court affirmed a partial
summary

judgment

when

the

non-competition

agreement

was

undisputedly unsigned.
Plaintiff contends that Defendants' motion should be denied
4

on this issue because its allegations are sufficient to put
Defendants on notice of the claims against it. Plaintiff asserts
that

the

example

Agreement

because

the

attached
actual

to

its

agreement

Complaint
that

was

Dupre

merely

signed

an

went

missing after his departure. Plaintiff submits declarations of
several of its employees, however, to prove that Dupre did sign
the agreement, and it argues that it should be allowed to prove
that

fact

at

trial

after

having

sufficient

time

to

conduct

discovery.
B. Counts Two and Four: Trade Secret Claim and Conversion
Claim
Defendants contend that Count Two, which is a trade secret
claim, and Count Four, which is essentially the same trade secret
claim "repackaged" as a conversion claim, should be dismissed
because Plaintiff's allegations are conclusory and unsupported by
facts. Defendants point out that Plaintiff never identifies what
the "secrets" are, why such secrets should be considered

trade

secrets, or what steps Plaintiff took to maintain the secrecy of
the alleged trade secrets. Defendants rely primarily on Brand
Coupon Network v. Catalina Marketing Corp., No. 11-556, 2012 WL
3903450 (M.D. La. Sept. 7, 2012 (Jackson, J.) wherein Chief Judge
Brian Jackson granted a motion for summary judgment because, "in
the absence of specific facts, the Court declines to accept or
5

formulate its own conclusory allegations from Plaintiff's bare
pleadings." Brand Coupon Network, 2012 WL 3903450 at *5 (where
plaintiff

did

not

proffer

any

evidence

that

a

trade

secret

existed except for their website name with was a freely viewable
to the public.)
Plaintiff argues that its allegations are sufficient, as
they allege that Dupre had access to Associated Pump's sensitive
and confidential customer, product, and trade secret information
and that Dupre agreed not to disclose such information, including
but

not

limited

relationship

to

customer

information,

and

contact
pricing

information,

information.

client

Plaintiff

contends that further expansion on these issues is best dealt
with during discovery.
C. Count Seven: CFAA Claim
Defendants

contend

that

Plaintiff

failed

to

allege

sufficient facts to state a claim under the CFAA because Dupre's
access

was

not

"unauthorized"

or

"exceeding

authorization."

Defendants aver that, in Bridal Expo, Inc. v. van Florestein, 0803777, 2009 WL 255862 (S.D. Tex. Feb. 3, 2009), the Court held
there is no cognizable claim under the CFAA when an employee had
access to and did in fact access certain information in the
course of his employment, only to misuse the information later.
Bridal Expo, Inc., 2009 WL 255862 at *8.
6

Plaintiff contends that, though some circuits have adopted a
narrow application of the CFAA, the Fifth Circuit recognized in
U.S. v. John, 597 F.3d 263, 272 (5th Cir. 2010) that an employee
may exceed his authorized access through misuse of information by
either

severing

the

agency

relationship

through

disloyal

activity, or by violating employer policies regarding use of
confidential information. Defendants dispute that John applies in
civil cases.
D. Count Eight: SCA Claim
Defendants contend that the SCA does not apply because,
under Fifth Circuit precedent, "an individual's computer, laptop,
or mobile device is not" covered under the SCA. (Rec. Doc. 9-1,
p. 11) Rather, the SCA is intended to apply to the service
provider, such as the internet service provided or e-mail service
provider, and the data temporarily stored therein. Defendants
liken this case to Garcia v. City of Laredo, Tex., 702 F.3d 788,
791 (5th Cir. 2012) cert. denied, 133 S. Ct. 2859, 186 L. Ed. 2d
911

(U.S.

2013)

wherein

the

Fifth

Circuit

held

that

an

individual's text messages and pictures stored on her mobile
phone do not fall under the protections of the SCA. Further,
Defendant contends that the SCA does not apply to information
stored on a hard drive, but rather only to information stored on
the service provider's servers pending delivery or backup. Based
7

on

these

standards,

Defendants

aver

that,

even

if

Dupre

downloaded data from Associated's computer while he was employed
there, and even if he deleted that data, it is simply not a
violation of the SCA. (Rec. Doc. 9-1, p. 12)
Plaintiff
violated

the

rebuts
SCA

by

these

contentions,

unlawfully

arguing

accessing

that

Dupre

Plaintiff's

email

system, which is protected under that statute, forwarding those
e-mails to his personal and Infinity accounts, and destroying the
e-mails to prevent Plaintiff from accessing them.
Finally, Plaintiff contends that if the Court determines
that any of its claims are insufficiently pled, it should be
granted leave to amend.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “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.”
Broudo, 544 U.S. 336, 346 (2005).
simple, concise, and direct.”

Dura Pharm., Inc. v.

The allegations “must be

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678
8

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

A

court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff.

Lormand v.

U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.

Iqbal, 556 U.S. at 678.
DISCUSSION

A.

Count One: Breach of Contract Claim
Based on Action Recovery and Sally Beauty Co., the Court

recognizes that an unsigned non-compete and/or confidentially
agreement may be unenforceable in many situations, and, in the
context of more facts, may be a proper basis for granting of a
motion

for

contention

summary
that

judgment.

the

Agreement

However,
is

based

missing

on

Plaintiff's

despite

several

eyewitness accounts of seeing Dupre sign such an agreement, it
would be premature to entirely foreclose Plaintiff's ability to
assert a breach of contract claim. Plaintiff should be permitted
to flesh out the arguments advanced in its opposition and should
be

allowed

to

use

the

discovery
9

period

to

further

explore

potential evidence regarding the alleged disappearance of the
agreement.
Plaintiff only asserts his allegations regarding the missing
Agreement

in

its

oppostion,

however,

and

the

Court

cannot

consider only arguments made only in briefs when deciding a
motion

to

presenting

dismiss
such

for

facts,

failure
the

to

state

Defendants

a

claim.3

By

not

are

not

able

to

appropriately assess the claims against it; therefore, the motion
to dismiss will be granted on Count One. The Court will grant
Plaintiff leave to amend it's Complaint to remedy this deficiency
by including allegations that the agreement is unable to be
located at this time.
B. Counts Two and Four: Trade Secrets and Conversion
1. LUTSA Claim4
Defendant cites to Brand Coupon Network wherein a court
granted a motion to dismiss for failure to state a claim, finding

3

In some instances, "documents attached to a motion to dismiss may be
considered by a court if such documents are “referred to in the plaintiff's
complaint and are central to the plaintiff's claim.” Dorsey v. N. Life Ins.
Co., No. 04-0342, 2005 WL 2036738 (E.D. La. Aug. 15, 2005)(Africk, J.). Here,
however, the Court finds that the declarations attached to the motion to
dismiss are not referenced in the Complaint, thus this rule does not apply.
4

The essential elements of a claim pursuant to LUTSA are: (a) the
existence of a trade secret; (b) a misappropriation of the trade secret by
another; and (c) the actual loss caused by the misappropriation. In order to
maintain a cause of action pursuant to LUTSA, “[t]he plaintiff has the burden
of establishing both the existence of a legally protectable secret and a legal
basis upon which to predicate relief.” Dorsey, 2005 WL 2036738 at *13(internal
citations omitted.)

10

that Plaintiff did not plead any specific facts about the trade
secrets
Network,

or

how

2012

such

WL

secrets

3903450

at

were
*5

confidential.

Brand

Coupon

("Plaintiff has proffered no

evidence that a trade secret exists"). This Court, however, finds
that the instant allegations go beyond those in Brand Coupon
Network and are sufficiently specific. In Brand Coupon Network,
the plaintiff's trade secret allegation was contained in a single
paragraph, wherein plaintiff alleged that:
Defendant's improper use of PLAINTIFF'S proprietary
name and/or trade secrets violates [LUTSA] entitling
PLAINTIFF to an injunction prohibiting DEFENDANTS from
using or commercializing PLAINTIFF'S proprietary name
or trade secrets and to the recovery of damages.
PLAINTIFF is also entitled to recover attorneys' fees
pursuant to statute.
(M.D. La. Case No, 11-556, Rec. Doc. 1-3, p. 8, ¶ 66). In that
case, the plaintiff did not explain why it did not expand upon
its

conclusory

conclusory

allegations

snippet

of

or

provide

boilerplate

anything

language.

Here,

beyond

a

however,

Plaintiff avers in the Complaint that the exact nature of the
alleged misappropriation is unknown because Dupre allegedly
deleted several items from his computer before terminating his
employment with Plaintiff. These allegations are sufficient to
allow the Court to infer that Plaintiff may have a claim under
LUTSA. Accordingly, Defendants' motion will be denied as to
Count Two. Baker Petrolite Corp. v. Brent, No.. 09-7046, 2010
11

WL 924289, *2 (E.D. La. Mar. 9, 2010) (Zainey, J.)(denying
motion to dismiss because plaintiff's "complaint alleges all
of

the

elements

misappropriation,

of
and

a

LUTSA

injury.

claim:

The

a

factual

trade

secret,

allegations

are

sparse and somewhat conclusory but Rule 8 continues to require
only “a short and plain statement of the claim.")
2. Conversion Claim
As

Defendants'

arguments

in

support

of

dismissal

of

Plaintiff's conversion claim are predicated on the same basis
as

its

trade

secret

arguments,

the

Court

will

also

deny

Defendants' motion as it relates to the conversion claim in
Count Four.5
C. Count Seven–CFAA Claim
A

claim

brought

pursuant

to

18

U.S.C.

§

1030(a)(4)

requires the plaintiff to prove the following elements: “(1)
defendant has accessed a protected computer; (2) has done so

5

Conversion is a delictual action which occurs when an individual (1)
acquires possession of an object in an unauthorized manner; (2) removes the
object from its original location and places it in another location with the
intent to exercise control over the object; (3) the acquired possession is
unauthorized; (4) the individual withholds possession from the owner of the
object; (5) the object is either altered or destroyed; (6) the object is used
improperly; or (7) the individual asserts ownership over the object. Dual
Drilling Co. v. Mills Equip. Inv., Inc., 98-0343 (La. 12/1/98); 721 So. 2d
853, 857 (citing FRANK L. MARAIST & THOMAS C. GALLIGAN, LOUISIANA TORT LAW § 1-2, at 3
(1998)). The action of conversion constitutes an act of ownership over another
individual’s property that is inconsistent with the true owner’s rights.
Louisiana Health Care Grp., Inc. v. Allegiance Health Mgt., Inc., 09-1093 (La.
App. 3 Cir. 3/10/10); 32 So. 3d 1138, 1143.

12

without authorization or by exceeding such authorization as
was granted; (3) has done so ‘knowingly’ and with ‘intent to
defraud’; and (4) as a result has ‘further [ed] the intended
fraud and obtain[ed] anything of value.” Bridal Expo, Inc.,
2009

WL

255862

at

*8

(S.D.

Tex.

Feb.

3,

2009)(internal

citations omitted). The arguments advanced by both sides in
this matter highlight the divide among courts in interpreting
the second element of this statute.
Defendants

cite

to

a

line

of

cases

which

narrowly

construe the statute to only apply when the alleged wrongful
access was unauthorized at the time that the access occurred.
Bridal Expo, Inc., 2009 WL 255862, *8; accord Power Equipment
Maintenance, Inc. v. AIRCO Power Services, Inc., 953 F.Supp.2d
1290, 1296-97 (S.D. Ga. Jun. 28, 2013) (rejecting theory that
an

employee's

"access

was

unauthorized

because

it

was

in

violation of the fiduciary duties" owed to his employer.);
accord WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d
199, 204 (4th Cir. 2012) cert. dismissed, 133 S. Ct. 831, 184
L.

Ed.

2d

645
of

(U.S.

improper

use

however,

points

to

liability

under

the

2013)

information
a

Fifth

CFAA

(CFAA

does

not

apply

validly

accessed.")

Circuit

case

arises

when

an

"to

the

Plaintiff,

recognizing
employee's

that

access

exceeds the intended use of the system or when the access is
13

"in violation of an employer's policies and is part of an
illegal scheme." John, 597 F.3d at 272-73. In John, which is a
criminal case brought under the CFAA, the Fifth Circuit upheld
the defendant's conviction upon the finding that, though the
defendant

was

authorized

to

view

and

print

all

of

the

information that she accessed, she exceeded her authorized
access

when

she,

with

full

knowledge

of

company

policies

prohibiting the misuse of internal computer systems, "accessed
account information for individuals whose accounts she did not
manage,

removed

this

highly

sensitive

and

confidential

information from Citigroup premises, and ultimately used this
information

to

perpetrate

fraud

on

Citigroup

and

its

customers." Id. (noting that, though it does not find that
violating a confidentiality agreement should always give rise
to criminal liability, "an employment agreement can establish
the parameters of authorized access.")
Defendants

argue

that

John

is

completely

inapposite

because it is a criminal case and its holding is "expressly"
limited to the criminal context. Defendants overlook, however,
the fact that the John Court includes a well-reasoned, general
discussion of the meaning of "exceeds authorized access" with
references to CFAA cases in civil contexts. Id. at 271-273.
While it is true that the precise holding in John–that a
14

computer user "has reason to know" that he or she is not
authorized to access data or information when her actions are
in

furtherance

of

a

criminally

fraudulent

scheme–is

specifically applicable in the criminal context, the reasoning
that the Court applied in reaching that conclusion informs
this Court on how the Fifth Circuit would treat the instant
matter. Id. at 272.
In John, the Fifth Circuit discusses two civil cases: EF
Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir.
2001) and LRVC Holdings LLC v. Brekka, 581 F.3d 1127, 1134-35
(9th Cir. 2009). In its discussion, the John Court indicates
approval of the First Circuit's holding in EF Cultural Travel
BV

that,

in

a

confidentiality
'exceed[ed]

civil

context,

agreement,

[the

authorized

access'

"because

former
within

of

the

employees']
the

broad
actions

meaning

of

1030(a)(4)." Id. citing EF Cultural Travel BV, 274 F.3d at 583
(noting that, though the Fifth Circuit may not apply this
standard in the criminal context, it agrees that "the concept
of

'exceeds

authorized

access'

may

include

exceeding

the

purposes for which access is authorized.") To the contrary,
the John Court indicates at least partial disagreement with
the LRVC Holdings LLC wherein the Ninth Circuit "rejected the
argument

that

one

who

is

authorized
15

to

obtain

information

stored

in

a

computer

exceeds

authorized

access

within

the

meaning of 18 U.S.C. 1030(a)(2) 'if the defendant breaches a
state law duty of loyalty to an employer' in accessing and
using

that

information

'to

further

his

own

competing

business." Id. at 273 citing LRVC Holdings LLC, 581 F.3d at
1134-35. The John Court noted that it "may have a different
view

[than

the

Ninth

Circuit]

of

how

'exceeds

authorized

access' should be construed," but then did not have to fully
develop this disagreement because the facts in John did not so
require. John, 597 F.3d at 273.
Based on the discussion in John, which was promulgated by
the Fifth Circuit after a district court rendered the opinion
in Bridal Expo, Inc., the Court finds that the Fifth Circuit
may recognize a CFAA claim, such as the claim in EF Cultural
Travel, where there is a broad confidentiality agreement to
delineate
taking

the

parameters

Plaintiff's

Agreement

and

of

authorized

allegations

Dupre

accessed

access.

as

true—that

and

misused

Therefore,

there

was

an

information

in

contravention of the Agreement—Plaintiff states a claim for
civil

liability

under

the

CFAA,

and

Defendants'

motion

to

dismiss will be denied as to Count Seven.
D. Count Eight: SCA Claim
"[F]or, Defendants to be liable under the SCA, they must
16

have gained unauthorized access to a facility through which
electronic communication services are provided (or the access
must have exceeded the scope of authority given) and must
thereby

have

accessed

electronic

communications

while

in

storage." Garcia, 702 F.3d at 791. "[T]he statute envisions a
provider (the ISP or other network service provider) and a
user (the individual with an account with the provider), with
the user's communications in the possession of the provider."
Garcia v. City of Laredo, Tex., 702 F.3d at 793. In K.F.
Jacobsen & Co., Inc. v. Gaylor, 947 F. Supp. 2d 1120, 1126 (D.
Or.

2013),

for

example,

employer-issued

a

computers

court
are

rejected

the

"electronic

theory

that

communication

services." K.F. Jacobsen & Co., Inc., 947 F. Supp. 2d at 1124.
The court discussed that, when a person or entity engages the
services of a electronic communication service provider, such
as an internet service provider ("ISP"), and then allows third
parties to use personal computers to access that service, the
"relevant

service

provided

through

is

Internet

ISPs

or

access,
other

and

the

servers,

service

not

is

through

Plaintiffs' PCs." Id. at 1126. Therefore, there is no claim
under the SCA between the user and the third party, but rather
the

claim

that

could

exist

would

service provider and the user. Id.
17

be

between

the

internet

Here,

Plaintiff

alleges

that

Plaintiff

"provides

an

electronic communication service to its employees, and Dupre,
in conspiracy with [Bayou Rain and Drain] and/or [Infinity
Pump],

intentionally

and

willfully

accessed

[Associated

Pump]'s stored electronic communications without authorization
and obtained/and or altered them in violation of [the SCA]."
(Rec. Doc. 1, p. 19, ¶ 81) Given the complexity of elements of
a

prima

facie

case

under

the

SCA,

the

Court

finds

that

Plaintiff's allegations are conclusory and fail to state a
claim.

Plaintiff

does

not

allege

what

the"electronic

communication service" is, thus the Court is not capable of
determining

whether

Plaintiff

is

truly

a

provider

of

the

service, or whether Plaintiff is simply a uses as was the case
in

K.F.

Jacobsen.

In

its

opposition,

which

the

Court

re-

iterates it will not consider, Plaintiff contends that the
service at issue is "e-mail service," but even if the Court
could consider the opposition alone, it still does not allow
the Court to decipher whether Plaintiff internally provided email services, or whether they contracted with a provider,
which is a critical determination in this matter. And, unlike
in other Counts in Plaintiff's complaint, such as the trade
secret claim where Plaintiff needs discovery to uncover all of
the necessary information, this is information that should be
18

readily accessible to Plaintiff. Accordingly, the Court will
dismiss Count Eight of Plaintiff's complaint; however, as it
is feasible that the pleading may be remedied to state a
claim,

the

Court

will

grant

Plaintiff

leave

to

amend

its

Complaint for this Count.
Accordingly,
Defendants Kevin P. Dupre,

Bayou Rain and Drain Pump and

Supply, LLC, and Infinity Pump and Supply, LLC's Motion to
Dismiss Under Rule 12(b)(6) (Rec. Doc. 9)

is GRANTED IN PART

AND DENIED IN PART.
IT IS ORDERED that Counts One and Eight of Plaintiff's
Complaint are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff is granted leave to
amend

Counts

One

and

Eight

of

its

Complaint.

The

amended

complaint must be filed within thirty (30) days of this order.
Failure to timely file an amended complaint will result in the
dismissal of Counts One and Seven with prejudice.
IT IS FURTHER ORDERED that Defendants' motion is DENIED
in all other respects.

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New Orleans, Louisiana this 3rd day of April, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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