Abu v. Dickson
| Docket Number | CIVIL 20-10747 |
| Decision Date | 25 May 2023 |
| Parties | CONLAN ABU and RYAN MOORE, Plaintiffs, v. STANLEY B. DICKSON and DICKSON & ASSOCIATES, PC, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
This case arises from the retrieval of Plaintiff Ryan Moore's email communications by non-party John Massey at the direction of Defendant Stanley B. Dickson. The retrieval occurred during state court litigation concerning an agreement by which Plaintiff Conlan Abu purchased certain restaurant assets from The Epicurean Group. Plaintiff Ryan Moore is a 50% owner of Conlan Abu. Dickson owned The Epicurean Group, and he is majority owner of Defendant Dickson & Associates, P.C.
After discovering that the emails had been accessed by Defendants Plaintiffs initiated this action alleging violations of federal law. Following previous dispositive motion rulings, what remains are Plaintiffs' claims alleging violations of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, and the Stored Communications Act (“SCA”) 18 U.S.C. §§ 2701-2713.
The matter is presently before the Court on the parties' cross-motions for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56. (ECF Nos. 48, 55.) The motions have been fully briefed. Finding the facts and legal arguments adequately presented in the parties' briefs the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).
Summary judgment pursuant to Rule 56 is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252. The court must accept as true the non-movant's evidence and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby, 477 U.S. at 255.
On January 1, 2019, Conlan Abu and The Epicurean Group closed on an Asset Purchase Agreement (“APA”) pursuant to which The Epicurean Group sold certain restaurant assets to Conlan Abu. (See ECF No. 48-2.) According to the APA, on the closing date, The Epicurean Group was to inter alia “sell, assign, convey, transfer, set over, and deliver (by appropriate instrument of transfer)” to Conlan Abu “all of the assets, rights, and interests of every conceivable kind or character whatsoever, whether tangible or intangible, that . . . are owned by Seller or in which Seller has an interest of any kind in relation to the business.” (Id. at Pg ID 1481, ¶ 1.1.) The assets included “computer programs, software programs, software and technical libraries . . . license agreements, and all other intellectual and/or proprietary information and property and applications for or licenses of used in connection with the Business, including Internet address(es) for the Business ....” (Id. ¶ 1.1(B).) Also included were “[a]ll contracts and service agreements.” (Id. ¶ 1.1(F).) The APA defines the “Business” as “certain restaurant businesses and the assets used in connection with such businesses under various entities and names as listed in Exhibit A ....” (Id. at Pg ID 1873.) “The Epicurean Group” is included.
After the closing date, The Epicurean Group breached the APA and Conlan Abu, Moore, and Moore's father sued Dickson, The Epicurean Group, and related entities in the Circuit Court for Oakland County, Michigan (“state court litigation”).[1](See ECF Nos. 55-2, 48-8.) Sometime after the closing date but before the state court litigation, Plaintiffs began operating The Epicurean Group and utilized e-mail accounts with the “theepicureangroup.com” domain (hereafter “the Domain”), such as Moore's address: rmoore@theepicureangroup.com. The accounts were hosted by Microsoft 365.
Dickson & Associates first purchased the Domain through GoDaddy.com on March 27, 2017. (ECF No. 55-3.) Dickson & Associates paid the two-year renewal fees for the Domain, including in March 2018 and 2020. (ECF No. 55-5.) After obtaining the Domain, Dickson & Associates, through its affiliated internet technology (“IT”) company Propel Technologies (“Propel”), purchased Microsoft Office 365 licenses for business products (e.g., Outlook, Word, Excel) to be used by its employees. (ECF No. 55-6.) Massey, the IT administrator for the entities owned by Dickson, administered the Microsoft Office 365 accounts through Propel's “tenant account,” which is the master account of an organization that houses the users in a company and the information about them (e.g., passwords, user profile data, and permissions). (ECF No. 9-4 at Pg ID 193, ¶¶ 1, 3.) Defendants registered the tenant account under the name “Trowbridge House” (hereafter “Trowbridge Tenant”). (See ECF No. 55-8.)
After the APA's closing date, former employees of The Epicurean Group continued to use their @theepicureangroup.com Microsoft Office 365 accounts. Moore requested that Dickson & Associates create accounts for himself and employees brought in following the purchase. (ECF Nos. 55-9, 55-10, 55-11.) Dickson & Associates-more specifically its IT Administrator Massey-continued to act as the administrator for the accounts throughout Plaintiffs' operation of The Epicurean Group, until Massey deactivated the accounts belonging to members of The Epicurean Group on September 1, 2019. (ECF No. 9-4 at Pg ID 193, ¶ 6; ECF no. 55-12 at Pg ID 2669; ECF No. 55-16.) Massey assisted Moore on multiple occasions with the accounts, including cancelling accounts for terminated employees, creating accounts for new hires, and resetting passwords. (ECF No. 94 at Pg ID 193, ¶ 7.)
In late August 2019, during the state court litigation, Dickson instructed Massey to retrieve emails between Moore's @theepicureangroup.com address and various other individuals. (ECF No. 9-4 at Pg ID 194, ¶ 9.) Massey's search also collected emails from Moore's personal email addresses. (ECF No. 48-3 at Pg ID 1526-29; ECF No. 48-12; ECF No. 48-13.) Massey accessed the emails through the Trowbridge Tenant, using his credentials as the administrator for the accounts. (See ECF No. 9-4 at Pg ID 194, ¶¶ 10-13; ECF No. 55-7 at ¶ 2620-22; ECF No. 48-3 at Pg ID 1517-24.) The defendants in the state court action produced some of these emails in response to the plaintiffs' discovery requests. On March 6, 2022, the plaintiffs deposed Massey in the state court litigation to uncover details concerning his access to the emails. (See ECF No. 27-5.)
Plaintiffs claim that they incurred $8,855.50 in “investigation costs” related to this “intrusion.” (ECF No. 48-15.) The costs reflect time spent by the attorneys representing the plaintiffs in the state court litigation (i.e., the same attorneys representing Plaintiffs here) from February 7 to March 8, 2020-shortly before the present lawsuit was filed. (Id.) The description of this time includes: 2.3 hours “investigat[ing] hacking of email accounts”; multiple hours “investigat[ing] potential computer fraud” and “computer claims”; 3.5 hours “[prepar[ing] for Massey deposition re computer fraud investigation”; and another 3.5 hours to “travel and attend Massey deposition[.]” (Id.)
Congress enacted the CFAA to deter computer crimes. A.V. ex rel Vanderhye v. iParadigms, LLC, 562 F.3d 630, 645 (4th Cir. 2009) (); Estes v. Forwarding Worldwide LLC v. Cuellar, 239 F.Supp.3d 918, 922 (E.D. Va. 2019). However, the statute also provides a civil right of action for “[a]ny person who suffers damage or loss by reason of a violation of [the statute]” provided “the conduct involves 1 of the factors set forth in [18 U.S.C. § 1030(c)(4)(A)(i)(I), (II), (III), (IV), or (V)].” 18 U.S.C. § 1030(g). The CFAA prohibits seven types of conduct with respect to unauthorized access of computers. Id. § 1030(a)(1)-(7). Plaintiffs allege that Defendants violated the statute by “intentionally access[ing] a computer without authorization or exceed[ing] authorized access . . . thereby obtain[ing] . . . information from any protected computer.” Id. § 1030(a)(2)(C).
To prevail on this claim, Plaintiffs must show that Defendants “accessed a ‘protected computer' either ‘without authorization' or in a manner that ‘exceeds authorized access.'” Am Furukawa, Inc. v. Hossain, 103 F.Supp.3d 864, 870 (E.D. Mich. 2015) (quoting 18 U.S.C. § 1030) (internal footnotes omitted)...
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