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Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 1 of 23

IN THE UNITED STATES DISTRICT COURP r

THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

J

:

I (cid:9)

-

,

POWER EQUIPMENT MAINTENANCE,
INC.,

Plaintiff,

V.

AIRCO POWER SERVICES, INC.;
AIRCO INDUSTRIAL SERVICES,
INC.; RONNIE ONOFRY; and TROY
BURROWS;

Defendants.

CASE NO. CV413-55

ORDER

Before the Court are Defendants' Motion to Dismiss or

Transfer Venue (Doc. 14) and Plaintiff's Motion for

Temporary Restraining Order (Doc. 12). For the following

reasons, Defendants' motion is GRANTED and Plaintiff's

complaint is DISMISSED. Should Plaintiff desire, it shall

have fourteen days from the date of this order to file an

amended complaint. In addition, Plaintiff's Motion for

Temporary Restraining Order is DENIED.

BACKGROUND

This case involves classic allegations by an employer

that former high-ranking employees misappropriated

confidential information, solicited customers, and poached

employees in connection with their move to a direct

(cid:9)
(cid:9)
Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 2 of 23

competitor.' (cid:9)

(Doc. 1 ¶ 1.) (cid:9)

Plaintiff Power Equipment

Maintenance, Inc. ("PEM") 2 provides maintenance and support

services to customers engaged in the generation of

electricity. (Id. ¶ 2.) Both Defendants Onofry and

Burrows 3 were employed by Plaintiff: Defendant Onofry as

Executive Vice President of Turbine Services for

approximately two years (Id. ¶ 11), while Defendant

Burrows's held the position of Vice President of

Maintenance Services for the same period of time (id.

¶ 12). Based on their positions within Plaintiff's

organizational structure, Defendants Onofry and Burrows had

access to Plaintiff's confidential information and trade

secrets, such as financial information, pricing and bidding

strategies, profit margins, customer contacts and

preferences, and marketing strategies. (Id. ¶ 13.) In

short, Plaintiff alleges that these Defendants had access

to all of its confidential information and trade secrets.

(Id. 11 15.)

' For the purposes of ruling on Defendants' Motion to
Dismiss, the Court views the complaint in the light most
favorable to Plaintiff and accepts as true all of
Plaintiff's well-pled facts. Am. United Life Ins. Co. v.
Marinez, 480 F.3d 1043, 1057 (11th Cir. 2007)
2 Plaintiff is a South Carolina Corporation with its
principle place of business in South Carolina. (Doc. 1
¶ 2.)

Defendant Onofry is a South Carolina resident, while

Defendant Burrows resides in Georgia. (Doc. 1 ¶J 7-8.)

2

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 3 of 23

Sometime beginning around the summer of 2011,

Plaintiff identified AIRCO Industrial Services, Inc.

('AIRCO I") as a potential acquisition. (Id. ¶ 15.) As a

result, Defendant Onofry was involved in both researching

AIRCO I and negotiating the terms of any acquisition. (Id.

¶ 16.) By the fall of 2011, however, Plaintiff ceased its

pursuit of AIRCO I, having been unable to successfully

negotiate agreeable terms for an acquisition. (Id. ¶ 17.)

Subsequently, AIRCO I was purchased by the private

equity firm Azalea Capital, which employed Plaintiff's

founder and former President, Keith Ravan. The company was

then divided into two separate entities, Defendants AIRCO

Power Services, Inc. ('AIRCO Power") and AIRCO Industrial

Services, Inc. ('AIRCO Industrial"), both of which are

owned by the same holding company. (Id. ¶ 25.) According

to Plaintiff, however, Defendants Onofry and Burrows

decided to leave Plaintiff's employ and join AIRCO I

sometime prior to Azalea Capital acquiring AIRCO I. (Id.

¶ 26.) Moreover, Plaintiff contends that Defendants Onofry

and Burrows, despite having earlier decided to leave for

AIRCO I, waited until November 21,. 2012 to announce their

resignations. (Id.. ¶ 28.)

Plaintiff alleges that, between the time Defendants

Onofry and Burrows decided to leave its employ and actually

3

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 4 of 23

announced their intentions, they surreptitiously accessed

and acquired Plaintiff's confidential information and trade

secrets for use during their employment with AIRCO I. For

example, Plaintiff contends that Defendant Onofry emailed

Defendant Burrows a copy of Plaintiff's Steam/Gas Turbine

Service Five Year Strategy Plan so that AIRCO I would have

a competitive advantage over Plaintiff. (Id. ¶j 31-33.)

Also, Plaintiff claims that Defendant Burrows sent, from

his work account to his personal account, an email

containing key information regarding one of its customers.

(Id. 1j34-36.)

Plaintiff also contends that, after Defendant Burrow's

November 21, 2012 resignation, he continued to steal

confidential information despite his computer access being

strictly limited, (Id. 1 40.) In this regard, Plaintiff

alleges that Defendant Burrows solicited one of its

customers by sending an email from his work account

informing the customer that he was leaving for AIRCO I.

(Id. ¶J 41-42.) In addition, Plaintiff claims that,

following the revocation of his access, Defendant Burrows

directed an PEM administrative assistant to print a draft

contract between PEM and one of its largest clients, which

contained information as to PEM's staffing, compensation

policies, and profit margins. (Id. ¶ 43.) According to

4

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 5 of 23

Plaintiff, Defendants Onofry and Burrows acted on behalf of

Defendants AIRCO Power and AIRCO Industrial, (cid:9)

who

encouraged, condoned, or ratified their actions. (cid:9)

(Id.

J 48.)

Plaintiff also contends that, after leaving its

employ, Defendant Burrows logged into a database of turbine

industry information and upcoming business opportunities

using Plaintiff's login credentials. (Id. ¶ 49.)

Plaintiff pays a subscription for access to this database,

which can be used to identify potential customers. (cid:9)

(Id.

¶ 50.) (cid:9)

Finally, Plaintiff alleges that since Defendant

Burrows's departure, he has continuously solicited its

customers, directly resulting in the loss of one client and

millions of dollars in lost revenue. (Id. ¶J 53-55.)

Plaintiff maintains that it takes reasonable measures

to protect the confidentiality of its information. (cid:9)

(Id.

¶T 56-61.) (cid:9)

For example, Plaintiff's high level employees,

who have access to particularly sensitive information, are

required to enter into nondisclosure agreements. (cid:9)

(Id.

¶ 58.) (cid:9)

Those documents most dear to Plaintiff are marked

"confidential." (Id. ¶ 59.) In addition, Plaintiff's

email system automatically appends a confidentiality notice

to all outgoing emails, stating that the email may contain

confidential information not intended for public

5

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 6 of 23

disclosure, (cid:9)

(Id. ¶ 60.) (cid:9)

Finally, Plaintiff employs a

variety of other security measures, including passwords,

security time-outs, training, and segregation of

confidential information. (Id. ¶ 61.)

On March 8, 2013, Plaintiff filed its complaint in

this Court. (Doc. 1.) In the complaint, Plaintiff brings

claims against all Defendants for violations of the

Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030,

tortious interference with business relations,

misappropriation of trade secrets, and conspiracy. (Id.)

Also, Plaintiff alleges that Defendants Onofry and Burrows

breached the duty of loyalty owed by employees to their

employers, and that Defendants AIRCO Power, AIRCO

Industrial, and Onofry aided and abetted the breach of

loyalty. (Id.) Later, Plaintiff filed a Motion for

Temporary Restraining Order (Doc. 12), seeking to prevent

Defendants from using any misappropriated trade secrets and

prohibiting them from contacting any of Plaintiff's

customers or employees.

On March 29, 2013, Defendants filed a Motion to

Dismiss or Transfer Venue. (Doc. 14.) In this motion,

Defendants argue that Plaintiff failed to allege a cause of

action under the CFkA. (Id. at 4-14.) In this regard,

Defendants contend that Burrow's and Onofry's actions are

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 7 of 23

not violations of the CFAA because they were authorized to

access that information. They reason that the CFAA only

creates a cause of action for wrongfully accessing the

information, not the wrongful use of that information.

(Id. at 4-12.) In addition, Defendants maintain that

Plaintiff has failed to adequately plead the appropriate

damage or loss required under the CFA. (Id. at 12-14.)

Defendants argue that once the Court dismisses Plaintiff's

CFAA claim, which is the only federal question in this

case, the Court should decline to exercise its supplemental

jurisdiction and dismiss the remaining state law claims.

(Id. at 14.) Finally, Defendants request that, should the

Court decline to dismiss the case, it be transferred to the

District of South Carolina because venue is improper in the

Southern District of Georgia. (Id. at 14-22.)

In its response, Plaintiff argues that it has properly

pled a claim under the CFAA because Defendants Burrow's and

Onofry's actions fall within the scope of the conduct

prohibited by that act, and they have properly pled the

act's loss element. (Doc. 23 at 3-8.) Also, Plaintiff

contends that venue is proper in the Southern District of

Georgia and Defendants have failed to meet their burden of

establishing the propriety of transfer to the District of

South Carolina. (Id. at 9-14.)

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Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 8 of 23

I. (cid:9)

MOTION TO DISMISS STANDARD

ANALYSIS

Federal Rule of Civil Procedure 8(a) (2) requires a

complaint to contain "a short and plain statement of the

claim showing that the pleader is entitled to relief."

"[T]he pleading standard Rule 8 announces does not require

'detailed factual allegations,' but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). (cid:9)

"A

pleading that offers 'labels and conclusions' or a

'formulaic recitation of the elements of a cause of action

will not do.' " (cid:9)

Id. (quoting Twombly, 550 U.S. at 555)

"Nor does a complaint suffice if it tenders 'naked

assertion [s] ' devoid of 'further factual enhancement.'

Id. (cid:9)

(quoting Twombly, 550 U.S. at 557) (alteration in

original).

"To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

'state a claim to relief that is plausible on its face.'

Iqbal makes clear that Twombly has been the controlling
standard on the interpretation of Federal Rule of Civil
Procedure 8 in all cases since it was decided. Iqbal, 556
U.S. at 684 ("Though Twombly determined the sufficiency of
a complaint sounding in antitrust, the decision was based
on our interpretation and application of Rule 8 . .
[that) in turn governs the pleading standard in all civil
actions and proceedings in the United States district
courts." (internal quotations and citations omitted)).

8

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 9 of 23

Id. (quoting Twombly, 550 U.S. at 570). (cid:9)

For a claim to

have facial plausibility, the plaintiff must plead factual

content that It 'allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.' " Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252,

1261 (11th Cir. 2009) (quoting Igbal, 556 U.S. at 678)

Plausibility does not require probability, "but it asks for

more than a sheer possibility that a defendant has acted

unlawfully." Iqbal, 556 U.S. at 678. "Where a complaint

pleads facts that are 'merely consistent with' a

defendant's liability, it 'stops short of the line between

possibility and plausibility of entitlement to relief.'

Id. (cid:9)

(quoting Twombly, 550 U.S. at 557.) (cid:9)

Additionally, a

complaint is sufficient only if it gives 'fair notice of

what the . . . claim is and the grounds upon which it

rests.' " Sinaltrainal, 578 F.3d at 1268 (quoting Twombly,

550 U.S. at 555)

When the Court considers a motion to dismiss, it

accepts the well-pleaded facts in the complaint as true.

Sinaltrainal, 578 F.3d 1252 at 1260. However, this Court

is "not bound to accept as true a legal conclusion couched

as a factual allegation." Iqbal, 556 U.S. at 678.

Moreover, "unwarranted deductions of fact in a complaint

are not admitted as true for the purpose of testing the

sufficiency of plaintiff's allegations." Sinaltrainal, 578

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 10 of 23

F.3d at 1268. (cid:9)

That is, '[t]he rule tdoes not impose a

probability requirement at the pleading stage,' but instead

simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of the

necessary element." Watts v. Fla. Int'l Univ., 495 F.3d

1289, 1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S.

at 545)

II. DEFENDANTS ONOFRY'S AND BURROW'S ACTIONS UNDER THE

COMPUTER FRAUD AND ABUSE ACT

The CFAA is primarily a criminal statute that provides

victimized parties with a civil remedy. Indeed, 18 U.S.C.

§ 1030(g) provides that "[amy person who suffers damage or

loss by reason of a violation of this section may maintain

a civil action against the violator to obtain compensatory

damages and injunctive relief or other equitable relief."

Important to this case, the CFAA holds civilly liable an

individual that "intentionally accesses a protected

computer without authorization, and as a result of such

conduct, causes damage and loss." 18 U.S.C.

§ 1030 (a) (5) (C). To establish civil liability, a plaintiff

must show that the defendant accessed a protected computer

without authorization or exceeded his authorized access,

causing "loss to 1 or more persons during any 1-year period

aggregating at least $5,000 in value." (cid:9)

Id.

10

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 11 of 23

§ 1030(c) (4) (A) (1) (I) . (cid:9)

Under the CFAA, "exceeds authorized

access" is defined as "to access 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." Id. § 1030(e) (6).

In this Court's opinion, these provisions of the CFAP.

were drafted to combat, what was at the time, the new and

increasing phenomenon of computer hacking. According to

the committee report, a major impetus behind the

legislation was to "impose criminal sanctions upon

'hackers' and other criminals who access computers without

authorization." H.R. Rep. 98-894, at 21 (1984) , reprinted

in 1984 U.S.C.C.A.N. 3689, 3707. While there has been some

disagreement, most federal district courts have adopted a

narrow definition of unauthorized access or access

exceeding authorization. See, e.g., Trademotion, LLC v.

Marketcl±g, Inc., 857 F. Supp. 2d 1285, 1291 (M.D. Fla.

2012); Clarity Servs., Inc. v. Barney, 698 F. Supp. 2d

1309, 1315 (M.D. Fla. 2010); Shamrock Foods Co. v. Gast,

535 F. Supp. 2d 962, 968 (D. Ariz. 2008); Lockheed Martin

Corp . v. Speed, 2006 WL 2683058, at *4_5 (M.D. Fla. Aug. 1,

2006) . Generally, these courts work under the premise that

While § 1030(g) lists five factors that can give rise to
civil liability, only one—s 1030(c) (4) (A) (i) (I)—±s
implicated in this case.

11

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 12 of 23

the CFAA focuses on an individual's unauthorized access of

information rather than how a defendant used the accessed

data. More specifically, the proper inquiry is whether an

employer had, at the time, both authorized the employee to

access a computer and authorized that employee to access

specific information on that computer.

In this respect, the actions of the employer are more

dispositive that those of the employee. That is, "[l]t is

the employer's decision to allow or to terminate an

employee's authorization to access a computer that

determines whether the employee is with or 'without

authorization.' " Trademotion, 857 F. Supp. 2d at 1291.

The same is true regarding whether an employee exceeded his

authorized access: it is the employer's decision as to what

the employee can access that determines whether an employee

exceeded his authorized access. This focus on the employer

creates something more akin to a bright line rule that is

easy to apply in the numerous and complex factual scenarios

likely to arise when assessing whether a employee's actions

violated the CFAP..

Courts that disagree with this interpretation use an

agency theory to conclude that an employee's access

automatically terminates or is exceeded when his actions

are no longer taken in the interest of his employer. See,

12

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 13 of 23

e . g., Lockheed Martin, 2006 WL 2683058, at *5.*7 (M.D. Fla.

Aug. 1, 2006) (discussing courts' application of agency

theory to the CFAA) This methodology, however, is

severely flawed in that it creates a nebulous area where

the same action can fall on either side of the CFAA based

on the highly subjective intentions of the employee. For

example, routinely checking personal email at work may

violate the CFAA if an employer has a policy prohibiting

any computer access for non-business related reasons.

Further, accessing files prior to deciding to depart for a

competitor may retroactively be deemed as exceeding

authority should the employee make use of that information

to the benefit of his new employer. Such outcomes place

employees in the precarious position of almost any access

possibly being construed as exceeding authorized access,

potentially resulting in civil liability under the CFAh.

Furthermore, the plain language of the CFA supports

an employer-based inquiry. The language of the CFAA simply

prohibits accessing information either without

authorization or in excess of authorized access. 18 U.S.C.

§ 1030. It does not confer upon employers the ability to

sue their employees in federal court for violations of

company policy regarding computer usage. Quite simply,

without authorization means exactly that: the employee was

13

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 14 of 23

not granted access by his employer. (cid:9)

Similarly, exceeds

authorized access simply means that, while an employee's

initial access was permitted, the employee accessed

information for which the employer had not provided

permission. Resort to linguistic gymnastics and theories

of agency are completely unnecessary to interpret these

axioms provided by the plain language of the CFAA. In this

Court's opinion, the language of the CFAP. does not speak to

employees who properly accessed information, but

subsequently used it to the detriment of their employers:

either one has been granted access or has not. Employers

cannot use the CFAA to grant access to information and then

sue an employee who uses that information in a manner

undesired by the employer.

In this case, Plaintiff contends that Defendants

Onofry and Burrows accessed sensitive information prior to

announcing their intention to leave Plaintiff's employ for

a competitor, taking trade secrets and other confidential

information with them. (Doc. 1 TT 30-48.) In addition,

Plaintiff alleges that Defendant Burrows used its

credentials to access a industry database of upcoming

business opportunities. (Id. ¶j 49-52.) However,

Plaintiff also admits that Defendants Onofry and Burrows

were "key members of PEIvI's management team and had

14

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 15 of 23

knowledge of and access to PEM's financial information,

pricing information, bidding strategies, profit margins,

customer contacts and preferences, processes, methods, and

corporate and marketing strategies." (Id. ¶ 13.) What is

missing from the complaint, and thus fatal, is any

allegation that Defendants Onofry and Burrows either lacked

access or exceeded their authorized access. In its

complaint, Plaintiff hangs its hat on the agency theory of

authorized access, arguing that Defendants Onofry's and

Burrows's access was unauthorized because it was "in

violation of the fiduciary duties [1 owed to PEM." (cid:9)

(Id.

¶ 64.) (cid:9)

As discussed above, however, this Court rejects

that theory of liability under the CF1A. (cid:9)

Without more,

therefore, the Court finds that Plaintiff has failed to

allege facts that, if true, are sufficient to support a

claim for civil liability under the CFAA.

The same reasoning applies to Defendant Burrows's use

of Plaintiff's credentials to access the industry database:

Defendant Burrows's access was authorized even though his

use of Plaintiff's credentials may have been improper.

While his use of the credentials may possibly give rise to

a cause of action, it is not one under the CFAA.

Similarly, Plaintiff's allegation that Defendant Burrows,

after his access had been revoked, improperly accessed

15

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 16 of 23

files by having an administrative assistant print a

confidential contract for him fails to allege a claim under

the CFAA. Indeed, that allegation does not even include

any access at all by Defendant Burrows, just that he

managed to convince another with access to provide him with

the information. Clearly, the CF?A requires that the

individual actually access the information, not merely

receive it from a third party.

In their response to Defendants' Motion to Dismiss,

Plaintiff relies heavily on United States v. Rodriguez, 628

F.3d 1258 (11th Cir. 2010) to argue that liability attaches

under the CFAA when an employee "abuses his access

for illegal and/or nonbusiness reasons." (Doc. 23 at 4-5.)

However, the defendant in Rodriguez was criminally charged

with accessing the sensitive personal information of

individuals he was not assisting as part of his employment

as a Social Security Administration ("SSA") TeleService

representative. 628 F.3d at 1260-61. The SSA had a well

advertised policy that employees are only permitted to

access personal information when assisting individuals with

their social security inquiries. (cid:9)

Id. at 1260. (cid:9)

The

Eleventh Circuit Court of Appeals concluded that the

defendant violated § 1030(a) (2) (B) of the CFAP. because he

was only permitted to access the information of specific

16

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 17 of 23

individuals for business reasons. (cid:9)

Rodriguez, 628 F.3d. at

1363.

Rodriguez, however, presents an entirely different set

of facts than those present in this case.

There, the

defendant was being prosecuted criminally for exceeding his

authorized access with respect to a government computer.

Also, SSA policy stated that the defendant may only access

personal information in the course of assisting individuals

with questions concerning their social security. Here,

Plaintiffs are attempting to leverage alleged violations of

nondisclosure agreements, and possibly company policy, by

Defendants Onofry and Burrows into civil liability under

the CFAA. Also, Defendants Onofryls and Burrows's access

was not restricted in any meaningful way: they were granted

full access to these materials. In Rodriguez, the

defendant was authorized to access personal information

only under specific and narrow circumstances, and only to

perform particular tasks. For these reasons, this Court

concludes that Rodriguez bears little application to this

case. While Defendants' conduct may leave Plaintiff with a

cause of action and an entitlement to relief, it is not one

provided for by the CFAA.

Plaintiff appears to recognize the weight of

persuasive authority against its position, insisting that

17

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 18 of 23

'[s]ince Rodriguez, district courts in the Eleventh Circuit

have rejected the access/use distinction that Defendants

make in their Motion, and have instead held that current

employees can exceed their authorized access under the CFAA

when they access their employers' computers for the purpose

of stealing information." (Doc. 23 at 5.) Plaintiff's

position, however, is unsupported in the post-Rodriguez

caselaw. While it is true that two district courts have

found that acting contrary to a current employer's business

interests can lead to violations of the CFAP, see, e.g.,

Ryan, LLC v. Evans, 2012 WL 1551285 (M.D. Fla. Apr. 30,

2012) (unpublished); Amedisys Holding, LLC v. Interim

Healthcare of Atlanta, Inc., 793 F. Supp. 2d 1302 (N.D. Ga.

2011), district courts in this circuit have also continued

to find that simply accessing an employer's computer for

nonbusiness reasons is insufficient to support a claim

under the CFAA, see, e.g., Trademotion, 857 F. Supp. 2d at

1291 ("[Defendant] was fully authorized to access the

computer and code, and, as such, his doing cannot be

'without authorization' under the Act." (citing LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir,

2009))); Lee v. PMSI, Inc., 2011 WL 1742028, at *2 (M.D.

Fla. May 6, 2011) ("Although Lee's internet usage may

violate company policy, 18 U.S.C. § 1030 is

18

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 19 of 23

inapplicable."). Moreover, it is worth noting that in both

Amedisys and Ryan the district courts were not reaching the

merits of the plaintiffs' CFAA arguments, but only finding

that they showed a sufficient likelihood of success on the

merits to warrant the imposition of temporary injunctive

relief. In any event, the disagreement among district

courts in this circuit concerning the proper scope of the

CFAA continues post-Rodriguez, contrary to Plaintiff's

characterization of a united front rejecting Defendants'

argument.

As discussed above, this Court concludes that the CFAA

only provides for civil liability where an employee's

access with either unauthorized by his employer or in

excess of his authorized access. As a result, Plaintiff's

concession that Defendants Onofry and Burrows enjoyed full

access to all of its confidential information and trade

secrets is fatal to their CFAA claims. Accordingly,

Defendants' Motion to Dismiss is GRANTED and the CFAA

claims are DISMISSED. Plaintiff may have fourteen days

from the date of this order to submit an amended complaint.

III. SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE LAW

CLAIMS

In light of the Court dismissing the only federal

issue present in this case, the Court will now examine

19

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 20 of 23

whether it should exercise supplemental jurisdiction,

pursuant to 28 U.S.C. § 1367, over Plaintiff's state law

claims. Under 9 1367(c), the Court "may decline to

exercise supplemental jurisdiction over a claim . . . if []

the district court has dismissed all claims over which it

has original jurisdiction." 28 U.S.C. § 1367(c) (3).

Factors the Court should consider in determining whether to

exercise its discretion and decline supplemental

jurisdiction (cid:9)

include (cid:9)

judicial (cid:9)

economy, (cid:9)

convenience,

fairness, and comity. Palmer v. 1-Iosp. Auth. of Randolph

Cnty, 22 F.3d 1559, 1569 (11th Cir. 1994)

After careful consideration, the Court finds no reason

to exercise its supplemental jurisdiction over Plaintiff's

remaining state law claims. In the Court's opinion, having

these state law issues heard in state court economizes

judicial resources and is more convenient to the parties.

In addition, notions of fairness and comity would suggest

that a case now composed of claims based entirely on state

law should be tried in a state court. Therefore, the Court

will exercise its discretion under 28 U.S.C. § 1367(c) and

DISMISS Plaintiff's remaining state law claims against

Defendants.

we

Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 21 of 23

IV. PLAINTIFF'S REQUEST FOR A TEMPORARY RESTRAINING ORDER

Plaintiff has filed a Motion for Temporary Restraining

Order. (Doc. 12.) As an initial matter, Plaintiff does

not really seek a temporary restraining order ("TRO"), but

rather a preliminary injunction. First, Plaintiff's only

initial reference to any injunctive relief was buried on

the twenty-third page of its complaint. (Doc. 1 at 23.)

As a result, the Court did not initially entertain a

request for a TRO because there was no motion before it

seeking that type of relief. Had there been, the Court

would have quickly denied such a motion because Plaintiff

completely failed to meet the prerequisites for such relief

outlined in Federal Rule of Civil Procedure 65.6 However,

Plaintiff subsequently filed its motion, providing

Defendants with notice of Plaintiff's intention to seek

some preliminary injunctive relief.

As the concerns

addressed by Rule 65 are no longer present, the Court will

6 Federal Rule of Civil Procedure 65(b) (1) requires that

(a) specific facts in an affidavit or a
that
verified (cid:9)
immediate and irreparable injury, loss, or
damage will result to the movant before the
adverse party can be heard in opposition; and

complaint (cid:9)

clearly (cid:9)

show (cid:9)

(b) the movant's attorney certifies in
writing any efforts made to give notice and
the reasons why it should not be required.

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Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 22 of 23

treat Plaintiff's motion as one requesting a preliminary

injunction.

For a preliminary injunction to issue, the moving

party must show "(1) a substantial likelihood of success on

the merits; (2) that irreparable injury will be suffered if

the relief is not granted; (3) that the threatened injury

outweighs the harm the relief would inflict on the non-

movant; and (4) that entry of the relief would serve the

public interest." (cid:9)

Schiavo ex rel. Schindler v. Schiavo,

403 F.3d 1223, 1225-26 (11th Cir. 2005). (cid:9)

A preliminary

injunction is an extraordinary and drastic remedy that

should not be granted unless the movant clearly carries the

burden of persuasion as to the four prerequisites. United

States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir.

1983). "The burden of persuasion in all of the four

requirements is at all times upon the plaintiff." Id.

In this case, Plaintiff is unable to establish a

substantial likelihood of success on the merits. As

discussed above, the Court has dismissed the sole federal

claim in this case and declined to exercise its

supplemental jurisdiction over the remaining state law

claims. As a result, Plaintiff's entire complaint has been

dismissed. Even though Plaintiff may file an amended

complaint, it is very unlikely that Plaintiff would enjoy

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Case 4:13-cv-00055-WTM-GRS Document 43 Filed 06/28/13 Page 23 of 23

any relief from this Court. (cid:9)

Quite simply, the apparent

factual scenario laid out by Plaintiff appears insufficient

to support a. claim under the CFA. Based on this

shortcoming, Plaintiff's motion is DENIED.

CONCLUSION

For the foregoing reasons, Defendants' Motion to

Dismiss is GRANTED and Plaintiff's complaint is DISMISSED.

Plaintiff shall have fourteen days from the date of this

order to file an amended complaint. In addition,

Plaintiff's Motion for Temporary Restraining Order is

DENIED.

SO ORDERED this 8ay of June 2013.

WILLIAM T. MOORE, J{
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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