William Gottlieb Management Co, LLC v. Carlin
Filing
54
DECISION AND ORDER granting in part and denying in part 49 Motion to Dismiss. For the reasons stated above, it is hereby ORDERED that the motion (Dkt. No. 49) filed by defendant Allan H. Carlin ("Carlin") to dismiss the Complaint (Dkt. No. 1), pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) ("Rule 12(b)(6)") is GRANTED in part and DENIED in part; and it is further ORDERED that Carlin shall respond to those portions of the Complaint that have not been dismissed no later than 21 days after the date of this Order. SO ORDERED. (Signed by Judge Victor Marrero on 3/26/2024) (jca)
BACKGROUND1
I.
Carlin, a New York-barred attorney, worked at times as
outside legal counsel for WGM. (See Complaint, Dkt. No. 1,
¶ 8
[hereinafter
“Compl.”].)
Around
September
2017,
WGM
provided Carlin with individual login credentials to WGM’s
organizational
account
on
the
cloud-based
file-sharing
platform Dropbox (the “WGM Dropbox Professional account”).
(See id.) WGM terminated Carlin around October 24, 2018, after
which personnel at WGM “noticed that Defendant Carlin had
been regularly accessing the WGM Dropbox Professional account
since the date of his termination.” (Id. ¶¶ 10, 12.)
WGM then retained “a licensed private investigation firm
specializing in digital forensics,” nonparty NGH Group, Inc.
(“NGH”), “to investigate the scope and nature of Carlin’s
unauthorized access to the WGM Dropbox Professional account.”
(Id. ¶ 13.) NGH provided “confirmation” that Carlin accessed
the
account.
viewed,
within
(Id.
added,
the
WGM
¶ 15.)
edited,
Dropbox
Carlin
and/or
purportedly
deleted
Professional
files
Account”
“accessed,
and
on
folders
eleven
occasions. (Id. ¶ 14.) After NGH’s “confirmation,” Carlin
continued to access the account “after being notified that he
1
Except as otherwise noted, the following background derives from the
Complaint. The Court takes all facts alleged therein as true and construes
all justifiable inferences arising therefrom in the light most favorable
to the plaintiff, as required under the standard set forth in Section II
below.
2
was committing computer trespass.” (Id. ¶ 15.) WGM alleges
that Carlin’s conduct caused “monetary loss” exceeding $5,000
“in internal effort and to engage contractors to investigate
the scope of breach, unauthorized access, potential risks
deriving from the conduct, and installing heightened measures
to prevent access.” (Id. ¶¶ 2, 16.)
WGM filed its Complaint against Carlin on October 23,
2020. (See Compl.) On March 22, 2021, the Clerk of the Court
entered a certificate of default against Carlin. (See Dkt.
No. 8.) While this action was pending before Judge Paul A.
Crotty, the Court entered a default judgement on May 10, 2021.
(See Dkt. No. 9.) On December 20, 2022, the Court granted
Carlin’s motion to set aside the certificate of default and
default judgment. (See Dkt. No. 28.)
After the default judgment was set aside, Carlin moved
to dismiss all four claims pursuant to Rule 12(b)(6) (see
Dkt. No. 49 [hereinafter the “Motion”]) and filed a memorandum
of law in support of the Motion (see Dkt. No. 51 [hereinafter
the “Memorandum” or “Mem.”]). WGM timely filed a memorandum
of
law
in
opposition
to
the
Motion
(see
Dkt.
No.
52
[hereinafter the “Opposition” or “Opp.”]), and Carlin timely
filed
a
memorandum
of
law
in
[hereinafter the “Reply”]).
3
reply
(see
Dkt.
No.
53
II.
Carlin
moves
to
LEGAL STANDARD
dismiss
the
Complaint
under
Rule
12(b)(6). To survive such a motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This standard is satisfied “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Put differently, a complaint
should not be dismissed when the plaintiff's allegations
sufficiently “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. However, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678.
A
Rule
12(b)(6)
motion
challenges
only
the
legal
feasibility of the complaint, and courts adjudicating such
motions “take[] no account of the complaint’s ‘basis in
evidence.’” Nunes v. NBCUniversal Media, LLC, 643 F. Supp. 3d
403, 411 (S.D.N.Y. 2022) (quoting Goel v. Bunge, Ltd., 820
F.3d 554, 559 (2d Cir. 2016)). “Generally, courts do not look
beyond facts stated on the face of the complaint, documents
incorporated in the complaint, matters of which judicial
4
notice may be taken and documents that are ‘integral’ to the
complaint.” Id. (quoting Goel, 820 F.3d at 559). At the same
time, the Rule 12(b)(6) standard instructs the Court to
construe the complaint “liberally.” In re Inclusive Access
Course Materials Antitrust Litig., 544 F. Supp. 3d 420, 431
(S.D.N.Y.
2021)
(quoting
Coal.
for
Competitive
Elec.
v.
Zibelman, 906 F.3d 41, 48–49 (2d Cir. 2018)).
III. DISCUSSION
A.
EXHIBITS EXTRANEOUS TO THE COMPLAINT
In support of his motion to dismiss, Carlin has submitted
a declaration with thirteen attached exhibits. (See Decl. of
Allan H. Carlin, Dkt. No. 50; see also Exs. A–M to Decl. of
Allan H. Carlin, Dkt. Nos. 50-1 to 50-13.) The exhibits can
be grouped into three categories: (1) memoranda of law and
letters filed in a related state court action between the
parties; (2) information and correspondence from Dropbox; and
(3) two affidavits of WGM’s forensic expert filed in the state
court action. (See Dkt. No. 50 ¶ 3.) These documents would be
appropriate to consider on the motion to dismiss only if they
are
“documents
that
are
attached
to
the
complaint,
incorporated in it by reference, integral to the complaint,
or the proper subject of judicial notice.” United States v.
5
Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quotation marks
omitted).
If
the
documents
do
not
fall
into
any
of
those
categories, then the Court may consider them only if it
converts the motion to dismiss into a motion for summary
judgment governed by Rule 56. See Fed. R. Civ. P. 12(d). Prior
to converting the motion, “[a]ll parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Id.
The Court concludes that the Carlin declaration and its
exhibits are not appropriate to consider at this stage. None
is attached to or explicitly incorporated by reference in the
Complaint. See, e.g., Madu, Edozie & Madu, P.C. v. SocketWorks
Ltd. Nigeria, 265 F.R.D. 106, 123 (S.D.N.Y. 2010) (“A clear
and definite reference to extraneous submissions not attached
to the complaint is necessary . . . .” (brackets omitted)).
Though the Court may take judicial notice that the statecourt documents exist, the Court cannot take judicial notice
that the contents of those documents are true. See Kramer v.
Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). Further,
the Complaint does not “rel[y] heavily upon [the documents’]
6
terms and effect” such that the Court could fairly describe
them as “integral” to the Complaint.2 Goel, 820 F.3d at 559.
Finally, the Court will not convert the motion to dismiss
into a motion for summary judgment to consider the exhibits
pursuant to Rule 12(d). Summary judgment before completing
discovery is appropriate “only in the rarest of cases” because
the parties must ordinarily be afforded an opportunity to
develop the factual record. Great Wall De Venezuela C.A. v.
Interaudi Bank, 117 F. Supp. 3d 474, 492 (S.D.N.Y. 2015)
(quoting Hellstrom v. U.S. Dep’t of Veterans Affairs, 201
F.3d 94, 97 (2d Cir. 2000)); see also Fed. R. Civ. P. 12(d).
Especially because this case is still at the pleading stage
and because the parties sharply disagree on the underlying
circumstances and effects of Carlin’s access to the WGM
2
WGM’s expert’s affidavits (see Dkt. No. 50-11; Dkt. No. 50-12) do present
a close call as to whether they may be considered integral to the
Complaint. Ultimately, the Court finds that it would be inappropriate to
consider the contents of those affidavits on this Motion. The Complaint’s
mere reference to NGH’s forensic work (Compl. ¶ 15) is insufficient to
render the affidavits integral because the Complaint does not rely heavily
on the affidavits themselves, only the underlying events that the
affidavits describe. See Goel, 820 F.3d at 559–60. In Goel, the Second
Circuit determined that a district court deciding a Rule 12(b)(6) motion
had abused its discretion when it considered a plaintiff’s deposition
testimony from a related state court action. Id. at 560. Even though the
complaint in Goel referenced “sworn testimony” and the plaintiffs learned
a “substantial portion of the facts” from the state court litigation,
that testimony was not integral to the complaint because the complaint
did not allege that the “terms and effect of [the plaintiff’s] testimony”
amounted to wrongdoing. Id. at 559-60. Similarly, here, WGM’s expert’s
testimony in state court may discuss relevant matters, but the Complaint
is not about the way the affidavits were written, or the legal effect of
the affidavits themselves. The affidavits therefore cannot properly be
labeled “integral” to WGM’s Complaint. Id.
7
Dropbox Professional account, there is no reason to bypass
discovery and decide the instant motion as one for summary
judgment.
B.
COMPUTER FRAUD AND ABUSE ACT
WGM alleges that Carlin’s unauthorized access of WGM’s
computer system violated the CFAA. (Compl. ¶ 21.) Carlin
contends that this claim should be dismissed because WGM has
not sufficiently alleged the type of damage or loss the
statute seeks to prevent. (Mem. at 10–16.)
The CFAA is a “federal computer-crime statute,” Van
Buren v. United States, 141 S. Ct. 1648, 1652 (2021), that
authorizes civil actions against anyone who “intentionally
accesses a protected computer without authorization, and as
a result of such conduct, recklessly causes damage.” 18 U.S.C.
§ 1030(a)(5)(B); see id. § 1030(g). To bring a civil action,
the plaintiff must also allege “loss to 1 or more persons
during any 1-year period . . . aggregating at least $5,000 in
value.” Id. § 1030(c)(4)(A)(i)(I); see id. § 1030(g). Though
“loss” and “damage” represent different legal concepts, both
terms “focus on technological harms — such as the corruption
of files — of the type unauthorized users cause to computer
systems and data.” Van Buren, 141 S. Ct. at 1660. The Court
finds that WGM has not pleaded the existence of either “loss”
or “damage” under the CFAA.
8
The Court’s analysis begins with “loss,” which is “any
reasonable
cost
to
any
victim,
including
the
cost
of
responding to an offense, conducting a damage assessment, and
restoring the data, program, system, or information to its
condition prior to the offense, and any revenue lost, cost
incurred, or other consequential damages incurred because of
interruption
of
service.”
18
U.S.C.
§ 1030(e)(11).
A
plaintiff must plead that their “loss” exceeded $5,000 to
state
a
civil
claim
under
the
CFAA.
Id.
§ 1030(c)(4)(A)(i)(I); LivePerson, Inc. v. 24/7 Customer,
Inc., 83 F. Supp. 3d 501, 514 (S.D.N.Y. 2015) (granting a
motion to dismiss where plaintiff failed to “quantify the
loss it alleges”).
WGM’s allegations are insufficient to allege “loss”
under this definition. As a general rule, remedial loss
incurred to investigate computer damage constitutes loss
under the statute. See, e.g., Tyco Int’l (US) Inc. v. John
Does 1-3, No. 01 Civ. 3856, 2003 WL 21638205, at *1 (S.D.N.Y.
July 11, 2003) (limiting loss to “those costs necessary to
assess
the
damage
caused
to
the
plaintiff’s
computer
system”). However, general investigatory costs do not amount
to loss in every case. See Nexans Wires S.A. v. Sark-USA,
Inc., 319 F. Supp. 2d 468, 477 (S.D.N.Y. 2004) (holding that
travel expenses necessary to meet to discuss the information
9
stolen by a former employee did not constitute loss), aff’d,
166 F. App’x 559 (2d Cir. 2006). Courts in this District have
held plaintiffs to the burden of alleging how the “costs of
responding to an offense” are linked “to situations involving
damage to or impairment of the protected computer.” Better
Holdco, Inc. v. Beeline Loans, Inc., No. 20 Civ. 8686, 2021
WL 3173736, at *3 (collecting cases); see Nanobeak Biotech
Inc. v. Barbera, No. 20 Civ. 07080, 2021 WL 1393457, at *4
(S.D.N.Y. Apr. 13, 2021) (granting motion to dismiss where
there were “no specific allegations connecting the alleged
‘investigative expenses’ to any effort to investigate damage
done to the computer systems”); Van Buren, 141 S. Ct. at 1660
(emphasizing
that
“loss”
must
relate
to
“technological
harms”).
As Carlin points out, the Complaint alleges that NGH’s
investigation only confirmed what WGM already knew — i.e.,
that Carlin accessed its data — rather than analyzing the
effect of Carlin’s access on WGM’s computer systems. (See
Compl.
¶ 12
Carlin
had
(“WGM’s
been
IT
personnel
regularly
noticed
accessing
that
the
Defendant
WGM
Dropbox
Professional account since the date of his termination[.]”);
id.
¶ 15
(stating
Defendant
Carlin’s
that
NGH
unauthorized
provided
access
“confirmation
to
WGM’s
of
Dropbox
Professional account” (emphasis added)); id. ¶ 13 (stating
10
that NGH “investigate[d] the scope and nature of Carlin’s
unauthorized access to the WGM Dropbox Professional account”
(emphasis added)).) These allegations do not even support the
inference that NGH’s investigation was helpful to reveal the
infringing conduct given that NGH provided only confirmation
of what WGM already knew. See Tyco, 2003 WL 21638205, at *2
(holding that because the defendant’s conduct “would have
been immediately apparent,” the cost of the investigation was
limited to locating the defendant and collecting information
about him, which is not compensable loss). WGM’s response to
this argument does not cite a single case to support that its
allegations regarding loss are sufficient to state a claim
under the CFAA.
Next, distinct from the concept of “loss” under the CFAA,
“damage” is “any impairment to the integrity or availability
of
data,
a
program,
a
system,
or
information.”
18
U.S.C. § 1030(e)(8). WGM’s allegations are deficient with
respect to “damage” as defined by the CFAA. The Complaint
never states how Carlin’s conduct “impaired” or otherwise
affected WGM’s computers, data, or files. See Better Holdco,
2021 WL 3173736, at *4 (granting motion to dismiss where the
plaintiff did “not allege that it lost service or access to
its
data,
or
that
its
systems
were
otherwise
harmed”).
Carlin’s mere access to and use of information obtained from
11
a computer system does not equate to damage to the computer
redressable by the CFAA. See Register.com, Inc. v. Verio,
Inc.,
126
F.
Supp.
2d
238,
252
n.12
(S.D.N.Y.
2000)
(concluding that whether or not the extracted data was used
to obtain a competitive advantage “has no bearing” on whether
the data or computer systems were impaired), aff’d, 356 F.3d
393 (2d Cir. 2004).
WGM’s argument that Carlin must have caused “damage” by
editing or deleting files on the WGM Professional Dropbox
account is not persuasive. Even editing or deleting a file
does not in every case amount to “impairment to the integrity”
of data, a program, a system, or information. 18 U.S.C.
§ 1030(e)(8); cf. Opp. at 4–7. The Complaint is barren as to
the significance of the documents that were allegedly edited
or deleted, or how WGM was impacted in any way by Carlin’s
actions. In other words, if Carlin’s actions did impair data,
a program, a system, or information, the Complaint does not
state how or why. See 18 U.S.C. § 1030(e)(8). Indeed, WGM’s
allegations in this respect are conclusory, lack factual
context, and parrot the law. See Compl. ¶¶ 16, 22–23. WGM has
thus failed to allege damage under the CFAA.
Accordingly, Carlin’s motion to dismiss the CFAA claim
is GRANTED.
12
C.
STORED COMMUNICATIONS ACT
Civil
liability
under
the
SCA
extends
to
whoever
“(1) intentionally accesses without authorization a facility
through
which
an
electronic
communication
service
is
provided; or (2) intentionally exceeds an authorization to
access
that
prevents
facility;
authorized
and
thereby
access
to
a
obtains,
wire
or
alters,
or
electronic
communication while it is in electronic storage in such
system.”
18 U.S.C. § 2701(a);
see
also
id.
§
2707(a)
(expressly permitting any “person aggrieved by any violation
of [the SCA]” to bring a civil action against the “person or
entity” that engaged in such violation).
Carlin argues that WGM’s SCA claim rests on a conclusory
allegation
that
his
access
to
the
Dropbox
account
was
unauthorized. (See Mem. at 18-19.) In support, Carlin cites
In re DoubleClick Inc. Privacy Litigation, where the court
dismissed an SCA claim because the plaintiffs relied “solely
on
the
naked
allegation
that
defendant’s
access
was
‘unauthorized.’” 154 F. Supp. 2d 497, 510 (S.D.N.Y. 2001).
However, in DoubleClick, the court was bound to reject the
plaintiff’s “bare assertion that [defendant’s] access was
unauthorized” because “every fact [plaintiffs] do allege
supports the inference that the [plaintiffs] did authorize
[defendants’] access.” Id.
13
Here, WGM has met its burden of pleading that Carlin’s
access
to
the
WGM
Dropbox
Professional
account
was
unauthorized. Unlike in DoubleClick, the facts pleaded in the
Complaint
here
plausibly
support
WGM’s
conclusions
that
Carlin exceeded the scope of his authorized access to the WGM
Dropbox Professional account. It is reasonable to infer that
once
Carlin’s
professional
relationship
with
WGM
ended,
Carlin did not continue to have authorization to continue to
use WGM’s computer systems or view WGM’s files. (See Compl.
¶¶ 8, 10, 15.) Allegations that one has exceeded the scope of
his or her permitted access are sufficient to survive a motion
to dismiss. See, e.g., Penrose Comput. Marketgroup, Inc. v.
Camin, 682 F. Supp. 2d 202, 210 (N.D.N.Y. 2010) (“Accepting,
arguendo, that Defendant had full access to the Plaintiff’s
computer system, this does not support the conclusion that
Defendant had authorization to access another employee’s
email account.”); Monson v. Whitby Sch., Inc., No. 3:09 Civ.
1096, 2010 WL 3023873, at *5 (D. Conn. Aug. 2, 2010) (denying
motion to dismiss where complaint sufficiently alleged the
employee exceeded the scope of her access to the school’s
computer
system);
cf.
Van
Buren,
141
S.
Ct.
at
1662
(interpreting “exceeds authorized access” in context of the
CFAA
to
mean
authorization
“when
but
then
[one]
accesses
obtains
14
a
computer
information
located
with
in
particular areas of the computer — such as files, folders, or
databases — that are off limits to him”).
Carlin’s other SCA arguments relate to two statutory
exceptions to liability. (See Mem. at 18–19 (discussing 18
U.S.C. § 2701(c) exceptions).) Because Carlin’s arguments
hinge on facts not raised on the face of the Complaint, they
are not properly before the Court on this motion to dismiss.
See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74
(2d Cir. 1998) (“An affirmative defense may be raised by a
pre-answer motion to dismiss under Rule 12(b)(6), without
resort to summary judgment procedure, if the defense appears
on the face of the complaint.”); see also Wright & Miller,
5 Fed. Prac. & Proc. Civ. § 1277 (4th ed.) (“Since the facts
necessary to establish an affirmative defense generally must
be
shown
by
matter
outside
the
complaint,
the
defense
technically cannot be adjudicated on a motion under Rule
12.”);
matters
id.
(“[M]otions
appearing
on
to
the
dismiss . . .
face
of
the
only
can
attack
complaint.”);
cf.
DoubleClick, 154 F. Supp. 2d at 508 (dismissing an SCA claim
pursuant to statutory exceptions grounded on “on the face of
the pleadings”). Accordingly, Carlin’s motion to dismiss the
SCA claim is DENIED.
15
D.
STATE LAW CLAIMS
WGM brings two claims under New York common law: trespass
to chattels and negligence. Carlin moves to dismiss these
claims on the basis that WGM has not sufficiently alleged
damage to its data or computer system. (See Mem. at 20.)
1.
Trespass to Chattels
WGM alleges that Carlin committed trespass to chattels
when Carlin accessed WGM’s Dropbox account without consent
and WGM “suffered damages, financially and otherwise.” (See
Compl. ¶¶ 33–34.) To bring a claim for trespass to chattels,
a plaintiff must allege that the defendant “intentionally,
and without justification or consent, physically interfered
with
the
use
and
enjoyment
of
personal
property
in
[plaintiff’s] possession” in a manner that causes harm to the
property.
Jackie’s
Enterprises,
Inc.
v.
Belleville,
87
N.Y.S.3d 124, 130–31 (N.Y. App. Div. 3d Dep’t 2018).
“The ‘harm’ at issue is ‘harm to the condition, quality
or material value of the chattels at issue’ and the showing
of such harm is ‘an essential element’ in pleading trespass
to chattels.” Fischkoff v. Iovance Biotherapeutics, Inc., 339
F. Supp. 3d 408, 416 (S.D.N.Y. 2018) (quoting J. Doe No. 1 v.
CBS Broad. Inc., 806 N.Y.S.2d 38, 39 (N.Y. App. Div. 1st Dep’t
2005)).
16
WGM fails to allege how Carlin harmed the condition,
quality, or value of WGM’s files or computer. It offers only
conclusory allegations that WGM “suffered damages.” (See
Compl. ¶ 34.) Without more, WGM has failed to state a claim
for trespass to chattels. See, e.g., Twin Sec., Inc. v. Advoc.
& Lichtenstein, LLP, 980 N.Y.S.2d 18, 19 (N.Y. App. Div. 1st
Dep’t 2014) (dismissing trespass to chattels claim because
“there is no indication that the condition, quality or value
of the computer, its hard drive, or any of the information on
the
computer
was
diminished
as
a
result
of
defendants’
duplication of the hard drive”); Hecht v. Components Int’l,
Inc., 867 N.Y.S.2d 889, 899 (N.Y. Sup. Ct. Nassau Cnty. 2008)
(“Since the emails were stored in Hecht’s Outlook Express
folder, Components has not shown that Hecht’s deletion of the
emails was anything other than harmless intermeddling with
the computer system.”); Fischkoff, 339 F. Supp. 3d at 417
(collecting
capacity
or
cases
harm
requiring
to
the
allegations
integrity
of
of
diminished
the
computer).
Accordingly, the motion to dismiss this claim is GRANTED.
2.
Negligence
WGM next alleges that Carlin was negligent when he
breached his duty of refraining from using WGM’s Dropbox
account after his termination. (See Compl. ¶¶ 38–39.) WGM
17
alleges that his breach of that duty caused WGM to be “injured
financially.” Id. ¶ 40.
“It
is
well-settled
that
to
establish
a
claim
of
negligence, a plaintiff must prove: a duty owed to the
plaintiff by the defendant, a breach of that duty, and injury
proximately resulting therefrom.” Moore Charitable Found. v.
PJT Partners, Inc., 217 N.E.3d 8, 14 (N.Y. 2023). Carlin moves
to dismiss only on the basis that WGM has failed to allege an
injury resulting from the alleged breach of duty.
The Court disagrees. WGM alleges that it retained a
private investigation firm “to investigate the scope and
nature of Carlin’s unauthorized access” in response to WGM’s
IT personnel observing Carlin access the WGM Dropbox. (Compl.
¶¶ 12–13.) WGM incurred over $5,000 in costs to investigate
the scope of Carlin’s breach. (See id. ¶ 2.) Those allegations
are sufficient to allege injury in the context of Carlin’s
purported breach (despite not being sufficient to allege
“loss” under the CFAA for the reasons previously discussed).
See, e.g., Sackin v. TransPerfect Glob., Inc., 278 F. Supp.
3d 739, 749 (S.D.N.Y. 2017) (allegations that plaintiffs had
“to take reasonable steps to mitigate the consequences of the
data breach” were sufficient to allege injury for negligence
claim); Rudolph v. Hudson’s Bay Co., No. 18 Civ. 8472, 2019
WL 2023713, at *9 (S.D.N.Y. May 7, 2019) (alleging injury
18
based on the expenses incurred when plaintiff “drove to a
Bank of America branch to obtain a new debit card, as well as
time
expended
to
retrieve
the
card
and
update
account
records”). Accordingly, the motion to dismiss this claim is
DENIED.
IV.
ORDER
For the reasons stated above, it is hereby
ORDERED that the motion (Dkt. No. 49) filed by defendant
Allan H. Carlin (“Carlin”) to dismiss the Complaint (Dkt. No.
1), pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)
(“Rule 12(b)(6)”) is GRANTED in part and DENIED in part; and
it is further
ORDERED that Carlin shall respond to those portions of
the Complaint that have not been dismissed no later than 21
days after the date of this Order.
SO ORDERED.
Dated:
New York, New York
March 26, 2024
________________________
Victor Marrero
U.S.D.J.
19
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