Egilman v. Keller & Heckman, Llp., CIV.A. 04-00876(HHK).

• Decision Date: 10 November 2005
• Docket Number: No. CIV.A. 04-00876(HHK).,CIV.A. 04-00876(HHK).
• Court: U.S. District Court — District of Columbia
• Parties: David EGILMAN, Plaintiff, v. KELLER & HECKMAN, LLP, et al., Defendants.

401 F.Supp.2d 105

David EGILMAN, Plaintiff, v. KELLER & HECKMAN, LLP, et al., Defendants.

No. CIV.A. 04-00876(HHK).

United States District Court, District of Columbia.

November 10, 2005.

COPYRIGHT MATERIAL OMITTED

Cheryl A. Maier, King, Pagano & Harrison, Washington, DC, for Plaintiff.

Colby Arnn Smith, Jeffrey Paul Cunard, Debevoise & Plimpton LLP, Washington, DC, Stephen M. McNabb, Fulbright & Jaworski, L.L.P, Washington, DC, for Defendants.

MEMORANDUM OPINION

KENNEDY, District Judge.

Plaintiff, David Egilman, brings this action against defendants, Keller and Heckman LLP ("K & H"), Douglas J. Behr, and Jones Day, alleging violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, the Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 1201 et seq., and various common law causes of action. Presently before the court are a motion to dismiss for failure to state a claim and improper venue [# 9], filed by Jones Day ("Jones Day Mot."), and a motion for judgment on the pleadings [# 11], filed by K & H and Behr ("K & H Mot."). Upon consideration of the motions, the oppositions thereto, and the record of the case, the court concludes that the motions should be granted.

I. BACKGROUND

Egilman, a medical doctor with a clinical practice in Massachusetts and associate professor at Brown University, has testified as an expert in numerous toxic tort cases. His involvement in one of those cases, Ballinger v. Brush Wellman, Inc., in Colorado state court, sparked the present litigation. In Ballinger, Egilman was designated as a testifying expert on behalf of the plaintiff, and Jones Day represented the defendant. In the course of that litigation, the judge issued an order prohibiting extrajudicial statements. This order, dated May 30, 2001, precluded, inter alia, anyone involved in the Ballinger litigation (including expert witnesses) "from publishing any statements on Internet websites over which they have control concerning the trial proceedings, concerning any opposing party or any opposing party's counsel, or concerning any witnesses or evidence in the case." Jones Day Mot., Exh. A at 3. The court later found that Egilman "knowingly, deliberately, intentionally and wilfully" violated this order by posting "scurrilous and inflammatory statements" on his personal website¹ and sanctioned him accordingly. Jones Day Mot., Exh. B at 1.²

Egilman alleges the statements on his website that gave rise to the sanctions order were misappropriated by the defendants when they "without authorization, gained access to ... areas of Dr. Egilman's Computer and Website that were protected by a username/password combination." Ver. Compl. ¶ 15.³ Specifically, Egilman alleges that K & H and Behr, a partner at K & H, obtained the username/password combination⁴ to Egilman's website without authorization and later disclosed that information to a partner at Jones Day. Jones Day, according to Egilman, later used the username/password combination to gain "improper and illegal" access to Egilman's website. Id. Egilman alleges that the defendants "improperly and illegally reviewed and printed information" from his website and used that information "to besmirch [his] reputation and compromise the effectiveness of [his] testimony against their clients." Id. ¶ 17.

On June 11, 2002, Egilman filed a complaint in Texas state court, claiming that Jones Day "engaged in conversion, trespass to personalty, and business disparagement" when its attorneys and their agents broke into his computer and accused Egilman of violating the Ballinger court's order prohibiting extrajudicial statements. Jones Day Mot., Exh. D, at 4. On March 10, 2004 — after the case was transferred to another venue in Texas, after multiple discovery disputes, and after at least five amendments to the original complaint⁵ — Egilman voluntarily dismissed the case without prejudice.

Almost three months later, on May 28, 2004, Egilman filed the present action in this court. The verified complaint, based on the same underlying factual background as the Texas suit, alleged that the defendants violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, the Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 1201 et seq., and various common law causes of action. Jones Day responded by filing a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim and under Fed.R.Civ.P. 12(b)(3) for improper venue. K & H and Behr answered the complaint and filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Those motions are the subject of the present memorandum opinion.

II. ANALYSIS

A. Legal Standard

A motion to dismiss under Rule 12(b)(6) is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Martin v. Ezeagu, 816 F.Supp. 20, 23 (D.D.C.1993) (internal quotations omitted); see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (stating that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). In addition, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (stating that the court must give the plaintiff "the benefit of all inferences that can be derived from the facts alleged").

The standard to be applied to K & H's Rule 12(c) motion for judgment on the pleadings is the same as that under Rule 12(b)(6). Dale v. Exec. Office of the President, 164 F.Supp.2d 22, 24 (D.D.C.2001); Longwood Vill. Rest. v. Ashcroft, 157 F.Supp.2d 61, 66-67 (D.D.C.2001). That is, the motion "should not be granted `unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.'" Beverly Enters., Inc. v. Herman, 50 F.Supp.2d 7, 11 (D.D.C.1999) (quotation omitted). As with a motion to dismiss, the complaint must be construed liberally in the plaintiff's favor and the plaintiff should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). Where the pleadings present disputed questions of material fact, the movant's motion for judgment on the pleadings must be denied. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977).

While the standard of review under Rule 12 is important for our purposes, equally relevant is the scope of such a determination. In evaluating both a Rule 12(b)(6) motion to dismiss and a Rule 12(c) motion for judgment on the pleadings, the court is limited to considering facts alleged in the complaint, any documents either attached to or incorporated in the complaint, matters of which the court may take judicial notice, St. Francis Xavier Parochial Sch., 117 F.3d at 624-25, and matters of public record, Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993); see also Does I through III v. District of Columbia, 238 F.Supp.2d 212, 216 (D.D.C.2002) ("[I]t is well established that courts are allowed to take judicial notice of matters in the general public record, including records and reports of administrative bodies and records of prior litigation") (quotations omitted). Thus, this court may properly review public records of the Ballinger litigation and the Texas lawsuit. The court may not, however, consider other information outside of the pleadings and has properly excluded such information from its consideration. See Dale, 164 F.Supp.2d at 24 n. 1. Factual allegations in briefs or memoranda of law may likewise not be considered, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C.Cir.1994).

B. Egilman's Computer Fraud and Abuse Act Claim

Count One of Egilman's complaint alleges that defendants "knowingly and with intent to defraud, obtained, used and transferred an unauthorized username/password combination" in violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. Ver. Compl. ¶¶ 25-28. Congress passed the CFAA in 1984 to address the problem of computer crime. As originally enacted, the CFAA provided solely for criminal penalties against the violators of its provisions. It was not until enactment of the Computer Abuse Amendments Act of 1994 that Congress created a civil cause of action, and then only when certain prerequisites were met. See 18 U.S.C. § 1030(g). Subsection (g) of the CFAA, the section providing for a civil cause of action, states that "[n]o action may be brought ... unless such action is begun within 2 years of the date of the act complained of or the date of discovery of the damage." 18 U.S.C. § 1030(g). Defendants claim that Egilman failed to file his complaint within this two-year period, and, therefore, his CFAA claim should be dismissed. Jones Day Mot. at 8; K & H Mot. at 7-9. The court agrees.⁶

The face of Egilman's complaint indicates that the "act complained of" occurred in June 2001, when defendants assertedly accessed Egilman's website without his authorization. Ver. Compl. ¶ 15. Egilman discovered the damage caused by this act by, at the latest, June 22, 2001, when the Ballinger court imposed sanctions against him. Id. ¶ 26; Jones Day Mot. Exh. B. Because his complaint was not filed in this court until May 28, 2004, almost three years after both the date of the act complained of and the date of the discovery of the damage, Egilman's CFAA claim is untimely.

In his opposition to defendants' motions, Egilman does not dispute that the statute of limitations began to run in June...