SKOBLAR v. ULTO

Filing 26

ORDER Denying 25 Second MOTION for Default Judgment as to by DAVID SKOBLAR and it is further Ordered that Plaintiff's verified Complaint is Dismissed and that the Clerk of the Court shall mark this matter closed. Signed by Judge Esther Salas on 1/24/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID SKOBLAR,
Plaintiff,
v.
MELISSA ULTO,
Defendant.

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Civil Action No. 15-6069 (ES) (JAD)
ORDER

SALAS, DISTRICT JUDGE
This matter having come before the Court upon Plaintiff’s Second Motion for Default
Judgment (D.E. No. 25);
and it appearing that Plaintiff relies on 28 U.S.C. § 1331 to support this Court’s jurisdiction;
and it appearing that subject-matter jurisdiction is based solely on Plaintiff’s claims under
18 U.S.C. § 1030(g) (the “Computer Fraud and Abuse Act” or “CFAA”) and 18 U.S.C. §
2511(1)(C) and (D) (the “Electronic Communications Privacy Act” or “ECPA”);
and “because subject matter jurisdiction is non-waivable, courts have an independent
obligation to satisfy themselves of jurisdiction if it is in doubt” and this Court may “raise sua
sponte subject-matter jurisdiction concerns,” see Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 7677 (3d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubjectmatter delineations must be policed by the courts on their own initiative . . . .”);
and it appearing that, under § 1030(g) of the CFAA, Plaintiff must allege that Defendant
engaged in conduct involving one of the factors set forth in subclause (i), (ii), (iii), (iv), or (v) of
subsection (c)(4)(A)(i);
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and it appearing that Plaintiff’s CFAA claims concern only subclause (i), and that
subclause (i) requires “loss to 1 or more person during any 1-year period . . . aggregating at least
$5,000 in value,” see § 1030(c)(4)(A)(i)(1);
and it appearing that “loss” under the CFAA “must pertain to ‘a cost of investigating or
remedying damage to a computer, or a cost incurred because the computer’s service was
interrupted,’” Chas. S. Winner, Inc. v. Polistina, No. 06-4865, 2007 WL 1652292 (D.N.J. June 4,
2007) (quoting Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp. 2d 468, 475 (S.D.N.Y. 2004),
aff’d 166 F. App’x. 559 (2d Cir. 2006));
and it appearing that Plaintiff has not identified what portion of the damages he seeks
resulted from Defendant’s alleged violations of the CFAA, and further, whether those damages
constitute a cognizable loss under the CFAA;
and it appearing that, under §§ 2511(1)(C) and (D) of the ECPA, Plaintiff must allege that
Defendant intentionally disclosed or used (or endeavored to disclose or use) “the contents of any
wire, oral, or electronic communication, knowing or having reason to know that the information
was obtained through the interception of a wire, oral, or electronic communication in violation of
this subsection”;
and it appearing that “electronic communication” under the ECPA means “any transfer of
signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or
in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects
interstate or foreign commerce, but does not include (A) any wire or oral communication; (B) any
communication made through a tone-only paging device; (C) any communication from a tracking
device . . . ; or (D) electronic funds transfer information stored by a financial institution in a
communications system used for the electronic storage and transfer of funds,” see § 2510(12);

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and it appearing that “intercept” under the ECPA means “the aural or other acquisition of
the contents of any wire, electronic, or oral communication through the use of any electronic,
mechanical, or other device,” see § 2510(4); see also Fraser v. Nationwide Mut. Ins. Co., 352 F.3d
107, 113 (3d Cir. 2003) (holding that a communication is “intercepted” for purposes of the ECPA
only if the interception “occur[s] contemporaneously with the transmission” of the
communication);
and it appearing that Plaintiff’s Verified Complaint (D.E. No. 1) does not adequately allege
that Defendant disclosed or used (or endeavored to disclose or use) “the contents of any wire, oral,
or electronic communication” as those terms are defined under the ECPA, nor does Plaintiff’s
Verified Complaint adequately allege that Defendant knew or had reason to know that the
information she allegedly obtained was “intercepted” as that term is defined under the ECPA;
and it appearing that, because Plaintiff has not adequately alleged claims under either the
CFAA or the ECPA, the Court does not have subject-matter jurisdiction over this case;
IT IS on this 24th day of January 2017,
ORDERED that Plaintiff’s Second Motion for Default Judgment is DENIED; and it is
further
ORDERED that Plaintiff’s Verified Complaint is DISMISSED; and it is further
ORDERED that the Clerk of Court shall mark this matter CLOSED.
s/Esther Salas
Esther Salas, U.S.D.J.

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