Mathey Dearman, Inc. v. H&M Pipe Beveling Machine Co. et al

Filing 74

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting in part and denying in part 61 Motion to Dismiss for Failure to State a Claim (Re: 54 Amended Complaint ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MATHEY DEARMAN, INC.,
Plaintiff,
v.
H&M PIPE BEVELING MACHINE CO.,
JOSHUA WILSON, BRANDON BOYD,
and RYAN DAY,
Defendants.

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Case No. 18-cv-250-GKF-JFJ

OPINION AND ORDER
This matter comes before the Court on the Motion to Dismiss Certain Claims in the First
Amended Complaint for Failure to State a Claim [Doc. No. 61] of defendants H&M Pipe
Beveling Machine Co., Joshua Wilson, Brandon Boyd, and Ryan Day. For reasons discussed
below, the motion is granted in part and denied in part.
I.

Allegations of the First Amended Complaint1
Mathey manufactures and markets cutting and beveling machines, as well as clamping,

aligning, and reforming systems for pipe and tubing applications. Its products are used in the
construction and maintenance of pipelines, power plants, refineries, petrochemical plants, marine
and offshore facilities, food and beverage plants and other projects. [Doc. No. 54, ¶ 11]. The
market is highly competitive and secretive and therefore Mathey depends on its ability to
maintain the secrecy of its confidential, proprietary, and trade secret information, including
pricing information, cost information, and sales and market strategies (“Confidential
Information”). [Id. ¶ 13]. To that end, Mathey expends significant effort and expense to protect
1

The First Amended Complaint is over fifty (50) pages long and includes over three hundred and
fifty (350) paragraphs. For the sake of brevity, the court summarizes only those allegations
relevant to the Motion to Dismiss.

its Confidential Information. [Id. ¶¶ 16-21]. For example, Mathey’s corporate “Dropbox”
account is password protected and only certain employees are provided access to the account.
[Id. ¶¶ 20-21].
Brandon Boyd began working for Mathey in August 2008. From July 15, 2015 to his
voluntary resignation on March 29, 2018, Boyd served as Mathey’s Global Sales Director. [Id. ¶
23].

In the course of his employment, Mathey provided Boyd with password-protected,

administrator access to its corporate Drop Box account and other Confidential Information. [Id.
¶¶ 26-27].

Mathey also provided Boyd a password-protected laptop and smartphone to use in

connection with his Mathey employment. [Id. ¶ 42].
Joshua Wilson began working for Mathey in November of 2012. [Id. ¶ 31]. Beginning
in September of 2016 until his voluntary resignation on March 29, 2018, Wilson served as Area
Sales Manager. [Id. ¶ 31]. From November of 2017 until his resignation, Wilson also served as
the Technical Sales Manager. [Id. ¶ 32]. In the course of his employment, Mathey provided
Wilson access to “Team Folders” on Dropbox, including “Quotes,” “Custom Layouts,” “Sales
Mangers” and “Mathey Rep Resource.”

[Id. ¶¶ 34-35].

Mathey also provided Wilson a

password-protected laptop and smartphone to use in connection with his employment with
Mathey. [Id. ¶¶ 43-44].
In mid-January 2018, Boyd and Wilson met and/or communicated with Ryan Day,
H&M’s Vice President of Sales and Marketing, regarding potential employment with H&M—
Mathey’s direct competitor. [Id. ¶¶ 45-46]. Although H&M did not have any open positions for
Boyd and Wilson due to the company’s smaller sales volume, Day and H&M decided to hire
Boyd and Wilson to gain access to Mathey’s Confidential Information and competitive
advantages. [Id. ¶¶ 47-50]. On February 23, 2018, H&M made written offers of employment to

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Boyd and Wilson. [Id. ¶ 67]. However, Boyd rejected the first offer, asserting he was not in a
position to regress from his current position and compensation package with Mathey. [Id. ¶¶ 6970]. Wilson also rejected H&M’s first offer of employment. [Id. ¶ 72]. Day continued to
negotiate with Boyd and Wilson. [Id. ¶¶ 74-76]. During this time, Boyd and Wilson began
copying Mathey’s Confidential Information for later use. On March 5, 2018, Boyd created a
folder in Mathey’s corporate Dropbox entitled “Transition,” and eventually moved thousands of
confidential documents into the folder. [Id. ¶¶ 81-86]. Boyd and Wilson utilized their Matheyprovided Dropbox account credentials, laptop, and smartphone to gain access to Mathey’s
Confidential Information. [Id. ¶¶ 81-82, 86, 120-21, and 124].
On March 18, 2018 and March 19, 2018, Boyd and Wilson, respectively, accepted
employment with H&M. [Id. ¶¶ 91 and 96]. Neither Boyd nor Wilson informed Mathey of their
future employment plans. [Id. ¶¶ 94 and 100]. In fact, during their final days of employment
with Mathey, Boyd and Wilson began operating in H&M’s interests and directly contrary to
Mathey’s interests. [Id. ¶ 102]. On March 22, 2018, Boyd used his personal e-mail account to
send to Day’s personal e-mail account Mathey’s Confidential Information. [Id. ¶¶ 103-107].
Upon receiving the documents, Day saved them to his H&M computer, then copied the “Mathey
Dearman” folder from that computer to a thumb drive with identification number
90008254654B8E24&0, and deleted the folder from his H&M computer. [Id. ¶¶ 109-111].
Mathey alleges that Day subsequently instructed Wilson and Boyd regarding the additional types
of confidential information and trade secrets that he would like to receive. [Id. ¶ 109]. Between
March 22, 2018 and March 29, 2018, Boyd and Wilson allegedly copied more than 80,000
Mathey confidential files to external hard drives to take with them to H&M. [Id. ¶¶ 112-118].

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In addition to copying files, prior to returning his company-provided laptop computer to
Mathey, Boyd deleted thousands of Mathey files and deleted significant amounts of e-mail data
from his Mathey-provided e-mail account. [Id. ¶¶ 137 and 140]. Boyd also purposefully reset
his company-provided smartphone to factory settings before returning it to Mathey, resulting in
the erasure of Mathey information. [Id. ¶ 139]. Boyd was not authorized to permanently delete
Mathey’s documents. [Id. ¶ 362].
On April 2, 2018, Boyd and Wilson officially began working for H&M as Director of
Sales Marketing and Technical Director, respectively. [Id. ¶ 155]. That day, with Day’s and
H&M’s approval, Boyd accessed and copied Mathey’s Confidential Information to H&M
computers.

[Id. ¶¶ 157-159].

Mathey alleges that Boyd, Wilson, and Day used the

misappropriated Mathey Confidential Information and trade secrets to restructure H&M’s
business, including pricing, discounts, and sales representative relationships to H&M’s benefit
and Mathey’s detriment. [Id. ¶ 142].
Based on these allegations, the Amended Complaint asserts the following claims against
all defendants: (1) misappropriation of trade secrets under the Defend Trade Secrets Act of 2016,
18 U.S.C. § 1836; (2) misappropriation of trade secrets under the Oklahoma Uniform Trade
Secrets Act, 78 OKLA. STAT. § 85 et seq.; (3) common law misappropriation of business
information; and (4) civil conspiracy. Additionally, the Amended Complaint asserts claims for
violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and breach of fiduciary duty
against Boyd and Wilson.
II.

Motion to Dismiss Standard
In considering a motion to dismiss under FED. R. CIV. P. 12(b)(6), a court must determine

whether the plaintiff has stated a claim upon which relief can be granted. A complaint must

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contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The plausibility requirement “does not impose a

probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of the conduct necessary to make out the claim.
Id. at 556. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court “must determine whether the
complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.” Lane v. Simon, 495 F.3d 1182, 1186 (10th
Cir. 2007) (quoting Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007)).
III.

Analysis
Defendants move to dismiss the injunctive relief requested in paragraphs 6(d) and 6(e) of

the Amended Complaint’s Prayer for Relief, as well as Count V, plaintiff’s claim under the
Computer Fraud and Abuse Act, 18 U.S.C. § 1030. The court will separately consider each
request.
A.

Injunctive Relief Pursuant to the Defend Trade Secrets Act

Defendants ask the court to dismiss the injunctive relief requested in paragraphs 6(d) and
6(e) of the Amended Complaint’s Prayer for Relief, which seek the following relief:
d.

Boyd and Wilson refrain from working for any competitor of Mathey,
including H&M, in the same or similar capacity as their employment with
Mathey, or in any capacity in which Boyd and Wilson inevitably would
disclose Mathey’s confidential, proprietary, or trade secret information.

e.

Day to cease his employment with H&M and refrain from working for any
competitor of Mathey in any capacity in which he inevitably or necessarily
would disclose Mathey’s confidential, proprietary or trade secret
information.

5

[Doc. No. 54, p. 56]. Defendants argue that the requested relief exceeds the scope of the federal
Defend Trade Secrets Act, 18 U.S.C. § 1836, and the Oklahoma Uniform Trade Secrets Act, 78
OKLA. STAT. § 85 et seq. and therefore dismissal is appropriate under FED. R. CIV. P. 12(b)(6).
However, “[t]he Tenth Circuit has held that a motion to dismiss is not a proper vehicle
for addressing a prayer for relief, which is not part of the cause of action.” Reininger v.
Oklahoma, 292 F. Supp. 3d 1254, 1266 (W.D. Okla. 2017) (citing Coll v. First Am. Title Ins.
Co., 642 F.3d 876, 901 (10th Cir. 2011)). See also U.S. Commodity Futures Trading Comm’n v.
Bradley, 408 F. Supp. 2d 1214, 1223 (N.D. Okla. 2006) (“[T]he only issue on a motion to
dismiss is whether the claim as stated would give the plaintiff a right to any relief, rather than to
the particular relief demanded.”) (quoting Cassidy v. Millers Cas. Ins. Co. of Texas, 1 F. Supp.
2d 1200, 1214 (D. Colo. 1998)); Autry v. Cleveland Cnty. Sheriff’s Dep’t, No. CIV-15-1167-D,
2018 WL 719044, at *3 n.6 (W.D. Okla. Feb. 5, 2018). Defendants do not challenge the
adequacy of plaintiff’s DTSA or OUTSA claims. Rather, defendants’ Rule 12(b)(6) motion only
challenges the requested relief. Because a Rule 12(b)(6) is not the proper vehicle for addressing
a prayer for relief, dismissing plaintiff’s requested injunctive relief at this time would be
premature and is not warranted. Thus, defendants’ motion to dismiss the injunctive relief
requested in paragraphs 6(d) and 6(e) of the Amended Complaint’s Prayer for Relief is denied.
B.

Count V – Computer Fraud and Abuse Act, 18 U.S.C. § 1030

Defendants also seek dismissal of Count V, plaintiff’s claim under the Computer Fraud
and Abuse Act, 18 U.S.C. § 1030 (“CFAA”). Although primarily a criminal statute, “[s]ection
1030 allows a person who suffers damage or loss to maintain a civil action for compensatory
damages against the violator if the offense caused loss to the victim of at least $5,000.” Tank
Connection, LLC v. Haight, 161 F. Supp. 3d 957, 968 (D. Kan. 2016). “[E]ach subsection of §

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1030 addresses a different type of harm.” United States v. Willis, 476 F.3d 1121, 1126 (10th Cir.
2007). Plaintiff asserts Boyd and Wilson violated §§ 1030(a)(4) and 1030(a)(5). These sections
provide as follows:
(a)

Whoever –
***
(4)

knowingly and with intent to defraud, accesses a protected
computer without authorization, or exceeds authorized access, and
by means of such conduct furthers the intended fraud and obtains
anything of value, unless the object of the fraud and the thing
obtained consists only of the use of the computer and the value of
such use is not more than $5,000 in any 1-year period;

(5)

(A)
knowingly causes the transmission of a program,
information, code, or command, and as a result of such conduct,
intentionally causes damage without authorization, to a protected
computer;
(B)
intentionally accesses a protected computer without
authorization, and as a result of such conduct, recklessly causes
damage; or
(C)
intentionally accesses a protected computer without
authorization, and as a result of such conduct, causes damage and
loss.
***

shall be punished as provided in subsection (c) of this section.
Defendants argue that the Amended Complaint fails to state a plausible CFAA claim
because plaintiff fails to allege that Boyd or Wilson accessed a protected computer “without
authorization.” See [Doc. No. 61, pp. 4-6]. Subsection (a)(4) of § 1030 applies only where a
defendant knowingly accesses a protected computer “without authorization” or if the access
“exceeds authorized access.” 18 U.S.C. § 1030(a)(4).

Similarly, subsections (a)(5)(B) and

(a)(5)(C) apply only to access “without authorization.” 18 U.S.C. § 1030(a)(5). The court will
separately consider whether the Amended Complaint plausibly alleges that Boyd and Wilson

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acted “without authorization” for purposes of §§ 1030(a)(4), (a)(5)(B), (a)(5)(C), and whether
they “exceed[ed] authorized access” pursuant to § 1030(a)(4).
The CFAA does not define “without authorization.” However, courts generally interpret
the phrase to mean “without permission.” See Tank Connection, LLC, 161 F. Supp. 3d at 96869. Thus, an employee “accesses a computer ‘without authorization’ when he gains admission to
a computer without approval.” Cent. Bank & Trust v. Smith, 215 F. Supp. 3d 1226, 1232 (D.
Wyo. 2016). The Amended Complaint includes bare recitals that Boyd and Wilson accessed
plaintiff’s Confidential Information “without authorization.” See, e.g., [Doc. No. 54, ¶ 355].
However, the Amended Complaint includes no factual averments in support thereof. Rather, the
Amended Complaint alleges:
27.
Among other things, Mathey provided Boyd with password-protected,
administrator access to its corporate Dropbox account. As the administrator,
Boyd was the only sales employee, and one of the few Mathey employees, with
access to all files and folders in the Dropbox account, including Board of
Directors documents, extensive sales documents such as performance, strategy,
and forecast documents, employee and contractor performance and compensation
documents, and pricing and profit information.
***
34.
In the course of his Mathey employment, Wilson had access to and
benefitted from Mathey’s highly sensitive, proprietary and trade secret
information, including, for example, quotes and bids, pricing worksheets, cost
information, customer information and engineering and technical information.
Wilson also had access to Mathey’s equipment schematics, including custom
layouts Mathey designed for customers.
35.
Wilson had full access to Mathey’s “Team Folders” on Dropbox,
including Team Folders entitled: “Quotes,” “Custom Layouts,” “Sales Managers”
and “Mathey Rep Resource,” and all of the resources contained therein.
***
42.
Mathey provided Boyd with a password-protected laptop computer and
smartphone to use in connection with his employment with Mathey. Mathey
owned the account for the smartphone it provided Boyd.

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43.
Mathey similarly provided Wilson with a password-protected laptop
computer and smartphone to use in connection with his employment with Mathey.
Mathey owned the account for the smartphone it provided Wilson.
[Doc. No. 54, ¶¶ 27, 34, 35, 42, 43]. The Amended Complaint alleges that Boyd and Wilson
utilized their Mathey-provided Dropbox credentials, laptop, and smartphone to gain access to
plaintiff’s Confidential Information.

[Id. ¶¶ 81-82, 86, 120-21, and 124].

The Amended

Complaint includes no allegations from which the court may reasonably infer that, during their
Mathey employment, plaintiff did not permit Boyd or Wilson access to the Dropbox account,
laptop, or smartphone.

Rather, the court can infer only that plaintiff permitted Boyd and

Wilson’s access. Thus, the Amended Complaint fails to state a plausible claim pursuant to §
1030(a)(5)(B) and § 1030(a)(5)(C).
Plaintiff argues, however, that Boyd and Wilson exceeded the scope of their authorization
by accessing Mathey’s Confidential Information for an improper purpose—specifically, to
benefit H&M. See [Doc. No. 68, pp. 9-10]. With regard to “exceeds authorized access,” the
statute defines the phrase to mean “access[ing] a computer with authorization and to use such
access to obtain or alter information in the computer that the accesser is not entitled so to obtain
or alter.” 18 U.S.C. § 1030(e)(6). As recognized by the parties, the meaning of that definition
created a Circuit split relative to which the Tenth Circuit has expressed no opinion. Defendants
urge the court to adopt the narrow approach articulated by the Second, Fourth, and Ninth Circuits
that focuses on the objective grant of access by the employer, not on the defendant’s intent or
purpose in accessing the information. See Cloudpath Networks, Inc. v. SecureW2 B.V., 157 F.
Supp. 3d 961, 980 (D. Colo. 2016). Not surprisingly, plaintiff argues the court should adopt the
broader approach utilized by the First, Fifth, Seventh, and Eleventh Circuits, pursuant to which
an employee may be liable under the CFAA for accessing a protected computer for an improper
purpose. See id.
9

The court is persuaded by those cases adopting the narrow approach, and applies this
approach to determine whether the Amended Complaint states a plausible claim under §
1030(a)(4). Although not binding upon this court, the court notes that district courts in this
Circuit uniformly apply the narrow inquiry to determine whether a defendant exceeded his
authorization for purposes of the CFAA. See Tank Connection, LLC, 161 F. Supp. 3d at 969; US
Bioservices Corp. v. Lugo, 595 F. Supp. 2d 1189, 1192 (D. Kan. 2009); Cloudpath Networks,
Inc., 157 F. Supp. 3d at 983; Cent. Bank & Trust, 215 F. Supp. 3d at 1232-33; Farmers Bank &
Trust v. Witthuhn, N.A., No. 11-2011-JAR, 2011 WL 4857926, at **4-5 (D. Kan. Oct. 13, 2011);
Giles Constr., LLC v. Tooele Inventory Sols, Inc., No. 12-CV-37, 2015 WL 3755863, at *3 (D.
Utah June 16, 2015); Koch Indus., Inc. v. Does, No. 10-CV-1275-DAK, 2011 WL 1775765, at
*8 (D. Utah May 9, 2011). The court is further persuaded by, and agrees with, District Judge
Martinez who concluded the plain language of the statute suggests “that Congress only meant to
deter certain means of access (such as through hacking), not certain purposes for access.”
Cloudpath Networks, Inc., 157 F. Supp. 3d at 983 (emphasis in original); see also LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009) (“The plain language of the statute
therefore indicates that ‘authorization’ depends on actions taken by the employer. Nothing in the
CFAA suggests that a defendant’s liability for accessing a computer without authorization turns
on whether the defendant breached a state law duty of loyalty to an employer.”). Finally, the
court shares the Ninth Circuit’s concern that, because § 1030 is primarily a criminal statute,
applying a broad interpretation would impose unexpected criminal liability on defendants. See
Brekka, 581 F.3d at 1134-35.
Based on the factual allegations of the Amended Complaint, the only reasonable
inference to be drawn by this court is that Wilson and Boyd “exceed[ed] authorized access” by

10

accessing plaintiff’s computers, drive, and information for an improper purpose. However, the
defendants’ purpose in accessing the information is irrelevant to liability pursuant to §
1030(a)(4).

The Amended Complaint includes no allegations that either Boyd or Wilson

accessed information for which plaintiff did not provide permission.

Thus, the Amended

Complaint fails to state a plausible claim for relief under § 1030(a)(4).
However, the Amended Complaint also alleges a general violation of § 1030(a)(5).
Plaintiff argues that defendants’ motion to dismiss improperly conflates the various subsections
of (a)(5), and that the Amended Complaint states a plausible claim for relief pursuant to §
1030(a)(5)(A) because that subsection does not require access of a protected computer “without
authorization.” The court agrees.
Subsection 1030(a)(5)(A) prohibits conduct that “knowingly causes the transmission of a
program, information, code, or command, and as a result of such conduct, intentionally causes
damage without authorization, to a protected computer.” 18 U.S.C. § 1030(a)(5)(A). Plaintiff
points to no Tenth Circuit authority considering whether unauthorized access constitutes an
element of § 1030(a)(5)(A) liability. However, the majority of courts construing § 1030(a)(5)(A)
have concluded that access “without authorization” is not an element of § 1030(a)(5)(A) liability.
See B&B Microscopes v. Armogida, 532 F. Supp. 2d 744, 758 (W.D. Pa. 2007) (“Section
1030(a)(5)(A)[] is not predicated upon unauthorized access of a protected computer. Instead, it
is predicated upon unauthorized damage to a computer.”) (emphasis in original); WentworthDouglas Hosp. v. Young & Novis Prof’l Ass’n, No. 10-CV-120-SM, 2010 WL 3023331, at *3
(D.N.H. July 28, 2010) (“Unauthorized damage and/or unauthorized transmission are elements
of a cause of action under § 1030(a)(5)(A); unauthorized access to the protected computer is
not.”); United States v. Stratman, No. 13-CR-3075, 2013 WL 5676874, at *2 (D. Neb. Oct. 18,

11

2013) (“There is, in fact, nothing in § 1030(a)(5)(A) to suggest that access to a protected
computer is an element of the offense at all, whether or not it was authorized.”); United States v.
Thomas, No. 13-CR-227, 2016 WL 10988775, at *2 (E.D. Tex. Nov. 8, 2016); Cheney v. IPD
Analytics, L.L.C., No. 08-23188-CIV, 2009 WL 1298405, at *7 (S.D. Fla. Apr. 16, 2009)
(“Therefore, the fact that [defendant] may have had initial authorization to use the computer does
not immune him from liability under subsection 1030(a)(5)(A) for causing damage to the
computer.”) (emphasis in original); Lifeline Anesthesia, PLLC v. Wolfe, No. 12-CV-02662-JPMCGC, 2012 WL 13026748, at *3 (W.D. Tenn. Nov. 1, 2012). But see Advanced Aerofoil Techs.,
AG v. Todaro, No. 11-CIV-9505-ALC-DCF, 2013 WL 410873 (S.D.N.Y. Jan. 30, 2013).2
Defendants argue that because both § 1030(a)(5)(A) and § 1030(a)(4) include the phrase
“without authorization,” the same construction should be applied to both subsections. However,
courts generally reason that, in the context of § 1030(a)(5)(A), “without authorization” modifies
the phrase “intentionally causes damage.” Thus, “one who is authorized to access a system, but
not authorized to damage it, violates the statute by intentionally damaging it ‘without
authorization.’” Stratman, 2013 WL 5676874, at *1.

The court is persuaded by Stratman’s

construction of the statute, which distinguished § 1030(a)(5)(A)—prohibiting “intentionally
caus[ing] damage without authorization”—and §§ 1030(a)(5)(B), (a)(5)(C), which prohibit
“intentionally access[ing] a protected computer without authorization” that results in damage.
Id. Viewing § 1030(a)(5)(A) in the context of the statute as a whole, the court concluded:

2

In fact, in a case cited by defendants for the proposition that the action of an unauthorized user
to improperly delete files does not state a claim for relief, the court recognized that “all of these
provisions [18 U.S.C. § 1030(a)(2), (a)(4), and (a)(5)] (save for § 1030(a)(5)(A)) requires that
access to the protected computer be obtained without authorization, or in excess of authorization
initially granted.” Trademotion, LLC v. Marketcliq, Inc., 857 F. Supp. 2d 1285, 1290-91 (M.D.
Fla. Mar. 2, 2012)).
12

It is apparent from § 1030(a)(5)(B) and (C) that Congress knew exactly how to
require proof that a defendant’s access to a computer was unauthorized. “Where
Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.”
Id. (quoting Dean v. United States, 556 U.S. 568, 573 (2009)).
Based on the foregoing, the court concludes that construing § 1030(a)(5)(A) to require
access “without authorization” is contrary to the statute’s plain language. Therefore, the fact that
Boyd and/or Wilson may have had initial authorization to access plaintiff’s computers does not
preclude § 1030(a)(5)(A) liability. Rather, in order to state a claim pursuant to § 1030(a)(5)(A),
plaintiff need only plead “1) the knowing ‘transmission’ of a ‘program, information, code, or
command’; 2) the transmission is ‘to a protected computer’; and 3) the transmission causes
intentional ‘damage without authorization.’” Wentworth-Douglas Hosp., 2010 WL 3023331, at
*3 (quoting Hayes v. Packard Bell, NEC, Inc., 193 F. Supp. 2d 910, 912 (E.D. Tex. 2001)).
Here, the court concludes that the Amended Complaint includes sufficient factual
allegations to state a plausible claim for § 1030(a)(5)(A) liability against Boyd. Plaintiff alleges
that Boyd “deleted thousands of Mathey documents in violation of his legal obligations to
Mathey” and “returned his company-provided smartphone to factory settings thereby deleting the
information contained on it in violation of his contractual and other obligations to Mathey.”
[Doc. No. 54, ¶¶ 137-140 and 356-57]. Thus, plaintiff asserts a knowing transmission of a
command that resulted in alleged damage. Plaintiff further alleges that the smartphone and
laptop were “protected computers.” [Id. ¶¶ 353-54]. Finally, the Amended Complaint includes
specific allegations that Boyd was not authorized to permanently delete Mathey’s documents.
[Id. ¶ 362]. Accordingly, the Amended Complaint states a plausible § 1030(a)(5)(A) claim
against Boyd. See N. Am. Ins. Agency, Inc. v. Bates, No. CIV-12-544-M, 2013 WL 6150781, at
*7 (W.D. Okla. Nov. 22, 2013).
13

However, the Amended Complaint includes no allegations from which the court can infer
that Wilson intentionally caused damage to a protected computer. See [Doc. No. 54, ¶¶ 351362]. Thus, the Amended Complaint fails to state a plausible § 1030(a)(5)(A) claim against
Wilson.
Accordingly, the court grants defendants’ motion to dismiss count V, plaintiff’s CFAA
claim, against Wilson. Defendants’ motion to dismiss plaintiff’s CFAA claim against Boyd is
denied as to the § 1030(a)(5)(A) claim, but is otherwise granted.
IV.

Conclusion
WHEREFORE, Defendants H&M Pipe Beveling Machine Company, Inc., Joshua

Wilson, Brandon Boyd, and Ryan Day’s Motion to Dismiss Certain Claims in the First Amended
Complaint for Failure to State a Claim [Doc. No. 61] is granted in part and denied in part.
Defendants’ motion is granted as to plaintiff’s Computer Fraud and Abuse Act claim pursuant to
18 U.S.C. § 1030(a)(4), (a)(5)(B), and (a)(5)(C), and as to plaintiff’s § 1030(a)(5)(A) claim
against defendant Wilson. The motion is otherwise denied.
IT IS SO ORDERED this 5th day of September, 2018.

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