NORTH JERSEY INTERNAL MEDICINE, P.C. v. AHMED et al
Filing
168
OPINION and ORDER denying 153 Defendants' Motion to Dismiss the CFAA claim (Count III). Signed by Judge Michael E. Farbiarz on 1/29/2025. (dam)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NORTH JERSEY INTERNAL MEDICINE,
P.C. d/b/a ADVANCE MEDICAL
GROUP, a New Jersey Corporation,
No. 23-cv-00863 (MEF)(MAH)
OPINION and ORDER
Plaintiff,
v.
SUHEL AHMED, M.D., ALL HEALTH
MEDICAL GROUP, P.C., and MARION
BOBB-MCKOY, M.D.,
Defendants.
*
*
*
For the purposes of this brief Opinion and Order, the Court
assumes familiarity with the allegations and procedural history
of this case.
*
*
*
A medical practice 1 sued two of its former employees 2 and their
current employer, 3 in part for allegedly stealing confidential
data.
From here, the medical practice is “the Plaintiff,” and the
employees and their employer are, collectively, “the
Defendants.”
North Jersey Internal Medicine, P.C. d/b/a Advance Medical
Group.
1
2
Suhel Ahmed and Marion Bobb-McKoy.
3
All Health Medical Group, P.C.
One of the Plaintiff’s claims: the Defendants violated the
Computer Fraud and Abuse Act (“CFAA”). See Second Amended
Complaint (“Complaint”) ¶¶ 162–70.
*
*
*
The Defendants now move to dismiss the CFAA claim (Count III)
under Federal Rule of Civil Procedure 12(b)(6). See Motion to
Dismiss at 1.
The motion is denied.
*
*
*
To make out a CFAA claim, a plaintiff must allege, among other
things, that he or she has “suffer[ed] damage.” 18 U.S.C.
§ 1030(g).
“Damage,” per the CFAA, is “any impairment to the . . .
availability of data . . . or information.” 18 U.S.C.
§ 1030(e)(8).
The Defendants’ motion to dismiss argument: the Plaintiff has
not alleged “damage.” See Motion to Dismiss at 1–2.
Not so.
The Complaint alleges that “wiping software . . . [was] used on
the [relevant] laptop.” Complaint ¶ 111 (cleaned up). And this
meant, it is alleged, that certain local information on the
laptop (as to what files were allegedly deleted) could no longer
be accessed. See id.
This amounts to an allegation that there was “an[] impairment to
the . . . availability of data . . . or information.” 18 U.S.C.
§ 1030(e)(8). Certain “data . . . or information” was
“availab[le].” But no longer --- access to that “data . . . or
information” was blocked (“impair[ed]”) by the alleged use of
wiping software.
Bottom line: the Plaintiff’s allegations 4 work.
And federal court decisions from around the Nation backs up this
conclusion. See Int’l Airport Ctrs., LLC, v. Citrin, 440 F.3d
418, 419–20 (7th Cir. 2006) (reversing the dismissal of a CFAA
claim based, in part, on allegations that a “secure-erasure
program” “prevent[ed] [the] recovery” of deleted files from a
4
At least the ones at paragraphs 110–13 of the Complaint.
2
laptop), abrogated on other grounds by Van Buren v. United
States, 593 U.S. 374 (2021); see also Cheney v. IPD Analytics,
LLC, 2009 WL 1298405, at *6 (S.D. Fla. Apr. 16, 2009)
(“Permanent deletion of files from a laptop computer without
authorization . . . may constitute ‘damage’ under CFAA.”);
Patrick Patterson Custom Homes, Inc. v. Bach, 586 F. Supp. 2d
1026, 1035 (N.D. Ill. 2008) (allowing CFAA claim to go forward
based on allegations that software “damage[d]” a laptop by
“render[ing] [files] unrecoverable”); Se. Mech. Servs., Inc. v.
Brody, 2008 WL 4613046, at *14 (M.D. Fla. Oct. 15, 2008)
(similar); Lockheed Martin Corp. v. Speed, 2006 WL 2683058, at
*8 (M.D. Fla. Aug. 1, 2006) (granting a motion to dismiss a CFAA
claim when a plaintiff did not adequately allege the “permanent
deletion” of files from computers); cf. PolyOne Corp. v. Lu,
2015 WL 3919115, at *7 (N.D. Ill. June 25, 2015) (denying a
motion to dismiss based on allegations that a consultant was
hired to look into, among other things, “whether computer wiping
software was used”) (cleaned up); Grant Mfg. & Alloying, Inc. v.
McIlvain, 2011 WL 4467767, at *8 (E.D. Pa. Sept. 23, 2011) (on
summary judgment, implying there was no CFAA “damage” because
“the records marked for deletion were still available and
accessible”); Pharmerica, Inc. v. Arledge, 2007 WL 865510, at
*7–*8 (M.D. Fla. Mar. 21, 2007) (on a motion for preliminary
injunction, finding a likelihood of success on the merits of a
CFAA claim based, in part, on allegations of permanent deletion
of data on a laptop). 5
The Supreme Court has somewhat recently said that “damage”
under the CFAA “focus[es] on technological harms --- such as the
corruption of files[.]” Van Buren v. United States, 593 U.S.
374, 391–92 (2021). This seems to be dicta. See In re
McDonald, 205 F.3d 606, 612 (3d Cir. 2000). But whether it is
or is not does not matter for now. The reason: the Plaintiff’s
Complaint here plausibly alleges “corruption,” Van Buren, 593
U.S. at 392, of otherwise-available information. Without the
alleged placement of wiping software on the relevant laptop,
certain information (as to the deletion of files) would
allegedly have been available. See Complaint ¶ 111. Making
that information unavailable is “corruption.” See Corruption,
Oxford English Dictionary,
https://www.oed.com/dictionary/corruption_n?tab=meaning_and_use#
8220790 (last visited Jan. 29, 2025) (“The introduction of flaws
into software or data, esp. such that it becomes unusable or
inaccessible by normal procedures.”); cf. Corruption, MerriamWebster, https://www.merriam-webster.com/dictionary/corruption
(last visited Jan. 29, 2025) (a “departure from the original or
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