Opinion
Case No. 6:05-cv-1580-Orl-31KRS.
December 5, 2006
ORDER
Defendant, Kevin Speed (Speed) has moved to dismiss Counts I, II and IV of the Second Amended Complaint (Doc. 128). Plaintiff has responded in opposition thereto (Doc. 137).
For the reasons set forth in this Court's Order at Doc. 112, Defendant's Motion to Dismiss Count I of the Second Amended Complaint against Speed will be granted. With respect to Count II, Plaintiff has specifically alleged that in the process of downloading data from Plaintiff's computer, he "destroyed and permanently deleted certain [data]." This allegation is sufficient to survive a motion to dismiss the Sec. 1030(a)(5)(A)(i) claim. With respect to Count IV, premised on alleged violation of Sec. 1030(a)(5)(A)(ii), this Count must fail because Defendant's access to the computer (which allegedly caused damage) was not "without authorization." See Order at Doc. 112, p. 16. Accordingly, it is
The Court presumes this allegation is made with due regard for Fed.R.Civ.P. 11.
ORDERED that the Motion is GRANTED in part and DENIED in part. Counts I and IV are DISMISSED, with prejudice, as to Speed. The Motion as to Count II is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida.