Bowen v. Porsche Cars, N.A., Inc.

Citation561 F.Supp.3d 1362
Decision Date20 September 2021
Docket NumberCIVIL ACTION FILE NO. 1:21-CV-471-MHC
Parties Kent BOWEN, Individually and on Behalf of Others Similarly Situated, Plaintiff, v. PORSCHE CARS, N.A., INC., Defendant.
CourtU.S. District Court — Northern District of Georgia

Alexander James Bukac, Pro Hac Vice, David Stein, Gibbs Law Group LLP, Oakland, CA, Matthew R. Wilson, Pro Hac Vice, Michael Joseph Boyle, Jr., Meyer Wilson Co., LPA, Columbus, OH, Michael A. Caplan, Timothy Brandon Waddell, Caplan Cobb LLP, Atlanta, GA, for Plaintiff.

Anderson Kemp, Kara Frances Kennedy, Matthew David Lawson, Cari K. Dawson, Alston & Bird, LLP, Atlanta, GA, for Defendant.

ORDER

MARK H. COHEN, United States District Judge

This case comes before the Court on Defendant Porsche Cars, N.A., Inc. ("Porsche")’s Motion to Dismiss for Failure to State a Claim [Doc. 14].

I. BACKGROUND1

On January 29, 2021, Plaintiff Kent Bowen ("Bowen"), the owner of a 2011 Porsche Panamera and an Ohio citizen, filed the present Class Action Complaint [Doc. 1], individually and on behalf of others similarly situated, alleging claims against Porsche arising from damages to Porsche Communication Management devices ("PCMs") which are present in thousands of vehicles distributed by Porsche. Compl. ¶¶ 1, 5. Porsche distributes and sells approximately 60,000 vehicles annually in the United States. Id. ¶¶ 11-12. Most of Porsche's vehicles come equipped with a satellite radio antenna, and all of them come equipped with a PCM. Id. ¶ 12. The PCM is the central control unit for many of the "infotainment" data processing and communication features of Porsche vehicles, allowing Porsche drivers to access a number of options, including radio and sound preferences, the use of paired mobile devices, and GPS navigation services, among other content. Id. ¶¶ 18-19. Sirius XM Radio ("Sirius") is a satellite radio provider with a business relationship with Porsche and, as part of that relationship, Porsche allows and facilitates distribution of Sirius products, including hardware and software for satellite radio use, in Porsche's vehicles. Id. ¶¶ 3, 15-16.

Bowen alleges that a software or firmware update (the "Update") related to the Sirius satellite radio functionality of PCMs was sent to Porsche vehicles on or around May 21, 2020, causing many Porsche owners’ PCMs to malfunction and engage in a constant cycle of rebooting. Id. ¶¶ 2-3. The Update was allegedly sent either by Porsche directly, or from Sirius at Porsche's direction or with Porsche's facilitation. Id. ¶ 3.

The Update allegedly was defective and caused damage to all Porsche vehicles with a satellite radio antenna and a PCM system version 3.0 or 3.1 (the "Affected Vehicles").

Id. ¶¶ 24, 26-27. PCMs for the Affected Vehicles store their programming information on disks contained within hard drives. Id. ¶ 21. In an effort to distribute promotional content, Porsche allegedly transmitted or facilitated the transmission of the Update to the Affected Vehicles remotely, without advance notice or permission of vehicle owners, and regardless of whether the vehicle owner was a Sirius customer. Id. ¶¶ 23-25. Bowen alleges that the Update was unable to write over existing PCM software and caused PCMs in the Affected Vehicles to enter "a near-continuous reboot cycle, draining the vehicle's battery, damaging the PCM hard drive, depriving the owner of the ability to enjoy his vehicle, causing an irritating and potentially dangerous ‘static’ noise, and resulting in numerous other significant problems." Id. ¶¶ 26-27. Porsche allegedly knew or should have known that such Sirius-related software updates put its customers at risk, and Bowen alleges that but for Porsche's failure to adequately test the Update, it would not have caused the damages alleged. Id. ¶¶ 28-30.

Bowen also alleges that owners and lessees of the Affected Vehicles, himself included, have borne the costs of damage caused by the Update and that Porsche, despite acknowledging the damage caused by the Update, has not properly responded or compensated Affected Vehicle owners and lessees. Id. ¶¶ 32-48. The Class Action Complaint contains causes of action for trespass to personalty (Count I); violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 (Count II); negligence (Count III); and unjust enrichment (Count IV). Id. ¶¶ 60-85.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). While this pleading standard does not require "detailed factual allegations," the Supreme Court has held that "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Under Federal Rule of Civil Procedure 12(b)(6), a claim will be dismissed for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The Supreme Court has explained this standard as follows:

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937 (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

At the motion to dismiss stage, the court accepts all well-pleaded facts in the plaintiff's complaint as true, as well as all reasonable inferences drawn from those facts. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) ; Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). Not only must the court accept the well-pleaded allegations as true, but these allegations must also be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires the court to assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

III. DISCUSSION

Porsche argues that all of Bowen's claims should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). Def.’s Mem. of Law in Supp. of Its Mot. to Dismiss ("Def.’s Mem.") [Doc. 14-1]. The Court will address Porsche's argument as to each claim individually, but will begin with the sole federal cause of action even though it is not raised in the Class Action Complaint as the first cause of action.2

A. Bowen States a Claim for a Violation of the CFAA.

The CFAA "prohibits accessing a computer and obtaining information without authorization or by exceeding authorized access." Diamond Power Int'l., Inc. v. Davidson, 540 F. Supp. 2d 1322, 1341 (N.D. Ga. 2007). Bowen brings his CFAA claims pursuant to 18 U.S.C. §§ 1030(a)(5)(B) and (C). Compl. ¶¶ 68-70. These sections penalize anyone who:

(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.

18 U.S.C. §§ 1030(a)(5)(B), (C). Although principally a criminal statute, the CFAA provides that "any person who suffers damage or loss [as a result of a violation] ... may maintain a civil action ... for compensatory damages and injunctive relief or other equitable relief." Diamond Power, 540 F. Supp. 2d at 1341 (quoting 18 U.S.C. § 1030(g) ).

"To make out a claim under the CFAA, [a plaintiff] must prove that [a defendant] has (1) intentionally accessed (2) a protected computer (3) without authorization, and (4) as a result of such conduct, has (5) intentionally, recklessly or otherwise caused (6) damage." FERCO Enters., Inc. v. Taylor Recycling Facility LLC, No. 1:05-CV-2980-ODE, 2007 WL 9701361, at *30 (N.D. Ga. Oct. 16, 2007), aff'd, 291 F. App'x 304 (11th Cir. 2008). Porsche argues that Bowen's CFAA claim fails because (1) Bowen has not sufficiently alleged that Porsche intended to access Bowen's PCM, (2) any alleged access was authorized because Bowen consented to receiving satellite radio transmissions, and (3) Bowen fails to allege damages sufficient to meet the $5,000 threshold for CFAA claims. Def.’s Mem. at 14-20. The Court will address these arguments seriatim.

1. The Class Action Complaint Adequately Pleads Porsche Acted Intentionally Under the CFAA.

Porsche argues that Bowen has not pleaded that Porsche intentionally accessed the PCMs without authorization because "[b]y purchasing a car with a satellite receiver, a buyer accepts—indeed consents to—the type of access Mr. Bowen alleges." Def.’s Mem. at 14. In response, Bowen asserts that he has satisfied his pleading requirement by alleging that Porsche intentionally transmitted the Update to the PCMs. Pl.’s Mem. in Opp'n to Mot. to Dismiss ("Pl.’s Resp.") [Doc. 21] at 5.

The intent element under the CFAA requires merely that access to a computer system not be a careless or inadvertent mistake. See, e.g., Health First, Inc. v. Hynes, No. 6:11-CV-715-ORL-41KRS, 2014 WL 12648552, at *10 (M.D. Fla. Sept. 17, 2014), aff'd, 628 F. App'x 723 (11th Cir. 2016). An inquiry into a defendant's particular motives...

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