Opinion
No. SA-03-CA-0660-RF
August 26, 2003
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIMS
Before the Court is Plaintiffs Motion to Dismiss Counterclaims of Jae Sun Chin, filed on August 7, 2003. After due consideration, the Court is of the opinion that the Motion to Dismiss should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this cause of action on May 22, 2003, alleging, inter alia, that several defendants purchased and used "Pirate Access Devices" to decrypt and view Plaintiffs satellite transmissions, without payment or permission, in violation of 18 U.S.C. § 2511, 2512, as well as Chapter 123 of the Texas Civil Practices and Remedies Code. On June 11, 2003, Defendant Jae Sun Chin filed a Motion to Dismiss for Failure to State a Claim, which this Court denied on July 10, 2003. On the same date, the Court granted Defendant's Motion to Sever his claims from those against the other defendants in the case.
See Pl.'s Original Compl. at 15-16, 18 (May 22, 2003).
Along with his Answer in this case, Defendant has filed a number of counterclaims against Plaintiff. The factual allegations underlying Defendant's counterclaims are scant. First, Defendant claims that Plaintiffs "pop up" advertisements have appeared on Defendant's computer, consuming Defendant's time and resources to delete the ads. On this allegation alone, Defendant asserts claims for trespass and unauthorized access of a protected computer in violation of 18 U.S.C. § 1030(e)(2)(B). Second, Defendant points to the "cease and desist" letters sent by Plaintiff prior to commencing the instant litigation. Based on these letters, Defendant asserts claims for unfair competition, intentional infliction of emotional distress, libel, defamation, slander, and negligence.
See Def.'s Original Answer and Countercl. (Docket #4) ¶ 24 at 6 (June 11, 2003).
On August 7, 2003, Plaintiff filed its Motion to Dismiss Defendant's Counterclaims for failure to state a claim. Defendant did not respond to the Motion.
STANDARD OF REVIEW
For purposes of a 12(b)(6) Motion to Dismiss for failure to state a claim, the complaint must be liberally construed in favor of the pleader, and all the facts pleaded in the complaint must be taken as true. Dismissal on this basis is a disfavored means of disposing of a case, and district courts should avoid such dismissals "unless it appears beyond doubt that the [pleader] can prove no set of facts in support of his claim which would entitle him to relief." "To survive a motion to dismiss under [Rule 12(b)(6)], a `complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory," "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." "The question therefore is whether, in the light most favorable to the [pleader] and with every doubt resolved in his behalf, the complaint states any valid claim for relief."
Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986).
Kennedy v. Tangipahoa Parish Library Ed. of Control, 224 F.3d 359, 365 (5th Cir. 2000).
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957).
Begala v. PNC Bank, Ohio, Nat. Ass'n, 214 F.3d 776, 779 (6th Cir. 2000).
Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir. 1999) (citing 5 CHARLES ALAN WRIGHT ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969)).
In considering a Motion to Dismiss, the Court must limit itself to the contents of the pleadings. In this case, Plaintiff has attached exhibits to its Motion to Dismiss for this Court's consideration. The Court disregards these exhibits, except as to the copies of the letters sent by Plaintiff to Defendant prior to the commencement of litigation. Since these letters are referred to in Defendant's counterclaims and are central to his claims, they may be considered in the Court's review of Plaintiff's Motion to Dismiss.
See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).
DISCUSSION
I. TrespassDefendant first asserts that Plaintiffs "pop up" ads constitute trespass. Under Texas law, "[t]o interfere wrongfully with the use or possession of property is a trespass to chattels," "For liability to attach, causing actual damage to the property or depriving the owner of its use for a substantial period must accompany the wrongful interference," Defendant alleges no facts in his counterclaim for trespass regarding any actual damage to or substantial deprivation of his computer. Rather, Defendant simply makes a general claim that, "on more than one occasion," Plaintiffs "pop up" ads have appeared on his computer, requiring him to delete the ads. This statement does not suffice to state a claim for trespass.
Omnibus Intern, Inc. v. ATT, Inc., 2003 WL 21757513 (Tex.App.-Dallas, July 31, 2003) (citing Jams v. S.W. Bell Tel. Co., 432 S.W.2d 189, 191 (Tex.Civ.App.-Houston [14th Dist] 1968, no writ)).
Id. (citing Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981)).
Def.'s Original Answer and Countercl. (Docket #4) ¶ 24 at 6.
II. 18 U.S.C. § 1030
Defendant next asserts a claim based on the same facts under 18 U.S.C. § 1030, averring that Plaintiff "knowingly and with intent to defraud accessed this protected computer without authorization or exceeded authorized access and by means of such access defrauded him by appropriating his time and attention without authorization and use of his computer resources." First, the Court has found no precedent for including "pop up" ads within the scope of "access" under the statute. Second, nothing in the statute or case law suggests that the appropriation of "time and attention" by way of such ads constitutes fraud. Finally, Defendant has not alleged that Plaintiff obtained "anything of value" as a result. Defendant fails to state a claim on this theory, as well.
Id. ¶ 27 at 7; see 18 U.S.C. § 1030(a)(4).
18 U.S.C. § 1030.
III. Unfair Competition
Defendant next asserts a claim for unfair competition, essentially arguing that Plaintiffs "cease and desist" letters constituted a scheme "to intimidate and coerce said persons into forfeiting said equipment and to extort a sum of money payable to [Plaintiff]. . . ." Defendant purports to bring this claim on behalf of "members of the general public." The Court rejects these general claims, as Defendant is without standing to bring them on the public's behalf.
Def.'s Original Answer and Countercl. (Docket #4) ¶ 35 at 9.
Id. ¶ 50 at 15.
Even focusing on the specific claims involving Defendant himself, the claim asserts merely that Plaintiff did not properly investigate its claims in that it "did not actually have documentary evidence" that Defendant possessed the illegal equipment. On this basis, Defendant claims Plaintiff engaged in a scheme of "intimidation and extortion" to extract settlements.
Id. ¶ 46 at 13.
Id. ¶ 49 at 15.
Under Texas law, the tort of unfair competition requires that Defendant show an illegal act by Plaintiff which interfered with Defendant's ability to conduct his business. Presumably, Defendant suggests that Plaintiffs "cease and desist" letter is an illegal act which interfered with his business. Defendant offers no factual allegations, however, to support this claim.
Decorative Center of Houston, L.P. v. Direct Response Publ'ns, Inc., 208 F. Supp.2d 719, 735 (S.D. Tex. 2002).
In addition, the Court's review of the "cease and desist" letters reveals that they merely informed Defendant of: information acquired by Plaintiff regarding possible illegal conduct; the source of that information; and the possibility of litigation as a result. The first letter urged Defendant to "contact the undersigned to discuss this matter in greater detail." After Defendant responded with a request for specific allegations, Plaintiff provided particulars and also proposed a $7,500.00 settlement. Defendant responded with a brief statement denying that any interception occurred. This litigation followed.
Pl.'s Mot. to Dismiss, Exs. C, D (July 30, 2003).
Id., Ex. C.
Id., Ex. D.
Id., Ex. D.
The Court finds that, based on Defendant's assertions, no set of facts would entitle him to relief on this claim. Defendant has not alleged an illegal act, nor any interference with his business. As a result, he fails to state a claim for unfair competition.
IV. Intentional Infliction of Emotional Distress
Defendant next asserts that the "cease and desist" letters give rise to a claim for intentional infliction of emotional distress. Based on Defendant's conclusory allegations, as well as the letters referenced therein, the Court finds no support for a finding that Plaintiffs conduct was "extreme and outrageous." Thus, Defendant fails to state a claim for intentional infliction of emotional distress.
See, e.g., Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
V. Defamation, Libel, and Slander
"Texas law recognizes two types of defamation: libel and slander." To maintain a cause of action for defamation, Defendant must state facts which would show that Plaintiff: (1) published a statement; (2) that was defamatory concerning Defendant; and (3) while acting with negligence regarding the truth of the statement. Defendant here states no facts regarding any of the foregoing elements, other than to conclusorily state that Plaintiff "with actual malice published a false statement of fact" regarding Defendant. Defendant alleges no facts suggesting that Plaintiffs "cease and desist" letters were published, defamatory statements. Thus, Defendant fails to state a claim for defamation, libel or slander.
Fields v. Keith, 174 F. Supp.2d 464, 473 (N.D. Tex. 2001).
Id.
Def.'s Original Answer and Countercl. (Docket #4) ¶ 69 at 15.
VI. Negligence
Finally, Defendant asserts that Plaintiff owed a legal duty to Defendant and that it breached this duty, proximately causing injury to Defendant. Defendant offers no elaboration regarding the nature of the duty, the breach, or the injury. This conclusory allegation, without any factual particularity whatsoever, does not state a claim for negligence.
Def.'s Original Answer and Countercl. (Docket #4) ¶ 70 at 16.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant has not stated a valid counterclaim against Plaintiff on the basis either of Plaintiff's "pop up" advertisements or its "cease and desist" letters.
It is therefore ORDERED that Plaintiffs Motion to Dismiss Counterclaims of Jae Sun Chin is GRANTED.
It is ORDERED that Plaintiffs Motion for Rule 11 Sanctions is DENIED.