Opinion
09 Cv. 8099 (BSJ)
03-07-2011
IPREO HOLDINGS LLC, Plaintiff, v. THOMSON REUTERS CORPORATION, REUTERS AMERICA LLC, JOHN DOE CORPORATION d/b/a STARMINE CORPORATION, and JOHN DOE CORPORATION #2, Defendants.
Memorandum and Order
Plaintiff Ipreo Holdings LLC ("Plaintiff") brings this lawsuit against Thomson Reuters Corporation, Reuters America LLC ("Reuters America"), John Doe Corporation d/b/a Starmine Corporation ("Starmine"), and John Doe Corporation #2 for copyright infringement, violation of the Stored Wire and Electronic Communications and Transaction Records Access Act ("SCA"), violation of the Computer Fraud and Abuse Act ("CFAA"), misappropriation under New York State law, trespass to chattels under New York State law, breach of contract under New York State law, and injunctive relief under New York State law. Plaintiff, a market intelligence provider alleges that Defendants, competitors in the market intelligence sector, improperly accessed Plaintiff's proprietary database. Before the Court is Defendants' April 19, 2010 Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is GRANTED.
STATEMENT OF FACTS
The following facts are taken from the Second Amended Complaint unless otherwise noted and are accepted as true for purposes of this motion only.
Plaintiff's Bigdough database ("Bigdough") is a prominent database of institutional investors. Plaintiff licenses the information in Bigdough for a fee, requiring the deletion of all data by a user after the expiration of a license. The Terms of Use of the database make it clear that subscribers receive no ownership in Bigdough and prohibit downloading of any significant portion of the information in Bigdough. Plaintiff competes against certain of Defendants' products and services.
Phillippe Mampouya ("Mampouya") was employed by Plaintiff from October 31, 2007 to October 21, 2008 as a data support analyst. Through his employment, Mampouya had a user identification number and password that allowed him to access Bigdough. Mampouya entered into an employment agreement and signed Plaintiff's Employment Handbook detailing Mampouya's responsibility to protect the confidentiality of the information in Bigdough. After Mampouya left Plaintiff's employ, he was employed by Starmine, a defendant in this action that had been acquired by defendant Thomson Reuters Corporation, and Mampouya currently remains employed by Starmine. From October 28, 2008 until February 2, 2009, Mampouya and/or other individuals used Mampouya's Bigdough user identification and password from Defendants' computers to obtain access to Bigdough 61 times. Individuals accessing Bigdough through Mampouya's user identification and password accessed "virtually all of the information and contacts in Ipreo's UK and European financial database of institutional and individual buy-side profiles and contact information." Defendants made use of this information in their competing business. Plaintiff confronted Defendants by letter on February 18, 2009, noting their unauthorized access. Defendants confirmed the unauthorized access but repeatedly assured Plaintiff that unauthorized conduct had ceased and unauthorized information had been deleted.
Defendants also employ Geoffrey de la Messeliere ("de la Messeliere"), a former employee of Plaintiff. When he left Plaintiff's employ, de la Messeliere downloaded and took certain confidential information. Defendants agreed that de la Messeliere would destroy all such information.
Defendants have acquired or affiliated with several entities that had previously been Bigdough licensees, including defendant Starmine, defendant Reuters America, and Reuters UK Ltd. ("Reuters UK") (collectively, the "Acquired Subsidiaries"). The Bigdough license requires, and Defendants promised, that all Bigdough data was deleted after the termination of these entities' licenses.
However, despite Defendants' assurances that they had deleted all Bigdough information potentially obtained from Mampouya, de la Messeliere, or the Acquired Subsidiaries, Defendants contacted a Bigdough "dummy account"—a fake entry in Bigdough that forwards to Plaintiff and that exists solely to verify that those who contact the entry are authorized users of Bigdough. On June 12, 2009, Plaintiff again contacted Defendants, demanding that they delete all Bigdough data in their possession. Defendants responded by letter stating that they would conduct an investigation; however, Defendants have failed to update Plaintiff as to the status of that investigation or as to the status of the deletion of the unauthorized Bigdough information. Certain of Defendants' customers have also contacted dummy accounts.
On or around January 26, 2010, Defendants again gained unauthorized access to Bigdough and downloaded 774 records.
Plaintiff has expended $81,000 in damage assessments and remedial measures in response to the aforementioned unauthorized accesses.
Plaintiff filed suit against an entity related to Thomson Reuters Corporation and one of Plaintiff's former employees in New York State Supreme Court on July 9, 2009 for the unlawful hiring of that former employee. See Decl. Justin E. Klein Exs. A-C. Other than the allegation of the most recent unauthorized access on January 26, 2010, Plaintiff's specific allegations of wrongful conduct in the Second Amended Complaint in this case were included in the factual allegations of its state law complaint. Compare Decl. Justin E. Klein Ex. A with Second Am. Compl. All claims in that case were settled by stipulation of dismissal with prejudice. Decl. Justin E. Klein Ex. B.
Plaintiff does not object to the Court's consideration of these exhibits, and courts routinely take judicial notice of former judicial proceedings. See Jacobs v. Law Offices of Leonard N. Flamm, No. 04 Civ. 7607 (DC), 2005 WL 1844642, at *3 (S.D.N.Y. July 29, 2005) ("In cases where some of those factual allegations have been decided otherwise in previous litigation, however, a court may take judicial notice of those proceedings and find that plaintiffs are estopped from re-alleging those facts.").
Plaintiff then brought this action for unauthorized access to Bigdough. Defendants now move to dismiss.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint that fails to state a claim upon which relief may be granted. "In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to accept the material facts alleged in the complaint as true." Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991) (citation omitted). A court is also required to read a complaint generously, drawing all reasonable inferences from its allegations in favor of the plaintiff. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972). A court should not, however, credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Stephenson v. Citco Group Ltd., 700 F. Supp. 2d 599, 619 (S.D.N.Y. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
In Twombly, the Supreme Court held that "a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted) (modifications in original). A pleading need, not "set out in detail the facts upon which" the claim is based in order to successfully state a claim. Id. at 555 n.3 (alteration in original) (internal quotation marks and citation omitted). A plaintiff must, however, assert "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1940 (citation omitted).
DISCUSSION
Plaintiff alleges seven causes of action. Plaintiff alleges three federal claims: (1) copyright infringement, (2) violation of the SCA, and (3) violation of the CFAA. Plaintiff also alleges four state law causes of action.
1. Res Judicata
Under the doctrine of res judicata, a "final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (citations and quotations omitted). For a suit to be barred by res judicata, the second suit must involve the same nucleus of operative facts as the first suit. See Waldman v. Village of Kiryas Joel, , 207 F.3d 105, 108 (2d Cir.2000). "It is well-settled that a stipulated dismissal with prejudice operates as a final judgment on the merits for purposes of res judicata." Rosenthal A.G. v. Rosenthal, No. 96 Civ. 8093(WK), 1998 WL 698275, at *4 (S.D.N.Y. Oct. 7, 1998) (italics added) (citation omitted). "To ascertain whether two actions spring from the same 'transaction' or 'claim,' we look to whether the underlying facts are 'related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations . . . .'" Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir.1997) (quoting Restatement (Second) of Judgments § 24(2) (1982)).
Defendants argue that Plaintiff's claims for violations of the SCA and CFAA, as well as state law causes of action, are barred by res judicata with respect to all of Plaintiff's allegations of wrongful conduct other than the most recent purported unauthorized access on January 26, 2010. The claims raised in the state court complaint were settled pursuant to a stipulation of dismissal with prejudice. Decl. Justin E. Klein Ex. C. However, the parties dispute whether the factual allegations common to both the state court complaint and the Second Amended Complaint in this case were mere background in the state court action or rather were used as the basis of the causes of action in the state court complaint. Essentially, the question is whether any of the state court causes of action were claims for wrongful conduct stemming from the actions set forth in this case and set forth in the fact section of the state court complaint or whether all the causes of action in the state court complaint stemmed from other facts in the state court complaint and were unrelated to the alleged wrongful conduct in this case.
For the purposes of deciding whether res judicata bars these claims, the Court assumes arguendo that Plaintiff included all relevant factual allegations from this action in the prior state court complaint and that the parties in the two actions are in privity.
The bulk of Plaintiff's state court complaint related to a series of events surrounding the employment by Thomson Reuters of Kevin Langdon ("Langdon"), a former employee of Plaintiff. However, there is a short fact section in the state court complaint entitled, "TR Has a History of Poaching and Stealing Confidential Data." Decl. Justin E. Klein Ex. C p. 17. This section lays out the alleged unauthorized accesses by Mampouya and de la Messeliere. Id. at 17-18. This section is then incorporated into each of the causes of action of the state court complaint. Id. at 18, 20-25.
The state court complaint contains eight causes of action. The first six unambiguously apply only to the conduct as among Plaintiff, Thomson Reuters, and Langdon and not to any of the conduct alleged in this action. Id. at 18-24. The seventh cause of action in the state court complaint, for unfair competition, cites four grounds. Id. at 24. Three grounds specifically mention conduct related to Langdon; however, one accuses Thomson Reuters and Langdon of "misappropriating and wrongfully disclosing and/or utilizing Ipreo's trade secrets and confidential and proprietary business information in competition with Ipreo." Id. The eighth cause of action, for misappropriation of trade secrets and confidential information, complains that "[t]hrough the improper and wrongful means alleged herein, including multiple breaches of the Confidentiality and Non-Solicit Agreement, the Non-Competition and Non-Solicitation Agreement and the Handbook, [Thomson Reuters and Langdon] are unlawfully using such trade secrets and confidential and proprietary information." Id. at 26.
In context, both the seventh and eighth causes of action arise solely from the conduct among Thomson Reuters, Langdon, and Plaintiff and not from the wrongful conduct alleged in this case. First, the part of the state court complaint's fact section that mentions the conduct relevant to this case calls it "History," which implies that it is mere background. Id. at 17; see also NLRB v. United Technologies Corp., 706 F.2d 1254, 1259-60 (2nd Cir.1983) ("[T]he circumstances that several operative facts may be common to successive actions between the same parties does not mean that the claim asserted in the second is the same claim that was litigated in the first."); Stevenson v. International Paper Co., Mobile, Alabama, 516 F.2d 103, 111 (5th Cir. 1975) (limiting res judicata effect because "plaintiffs introduced evidence of employment discrimination only as a background to their demands for protective transitional arrangements and fair representation"); c.f. Kaufman v. Somers Bd. of Ed., 368 F.Supp. 28, 37 (D.Conn. 1973) (holding prior claims were made "not merely as background"). Second, both the seventh and eighth causes of action are leveled against Langdon in addition to Thomson Reuters. See Decl. Justin E. Klein Ex. C p. 24-28. Third, neither the seventh nor the eighth cause of action mentions Mampouya, de la Messeliere, or either of their conduct, except by incorporating all facts alleged into the claim en masse. Id. Fourth, three of the four bases for the seventh cause of action explicitly reference conduct with respect to Langdon, so it is reasonable to assume the fourth basis also refers to conduct with respect to Langdon. Id. at 24. Finally, the eighth cause of action explicitly references "the Confidentiality and Non-Solicit Agreement, the Non-Competition and Non-Solicitation Agreement and the Handbook," documents relevant only to claims against Langdon and Thomson Reuters with respect to conduct involving both and not relevant to the conduct alleged against Mampouya or de la Messeliere. Id. at 26. Accordingly, the Court does not read the state court complaint as stating a cause of action arising from the facts alleged in the section entitled, "TR Has a History of Poaching and Stealing Confidential Data" and holds that res judicata does not bar any of Plaintiff's claims. Id. at 17.
2. Copyright Infringement
The elements of a copyright infringement claim are: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co ., 499 U.S. 340, 361 (1991). To plead these elements sufficiently under Rule 8(a), a complaint must allege: (1) which specific original works are the subject of the copyright claim; (2) that the plaintiff owns the copyrights in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) "by what acts during what time" the defendant infringed the copyright. Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y.1992) (citations omitted).
To register a copyright for material in an automatically updating database such as Bigdough, the owner of the database must register each three months' worth of updates. See 37 C.F.R. § 202.3(b)(5). Here, Plaintiff has no valid copyright registration covering any of Bigdough's updates since September 30, 2001. Decl. Justin E. Klein Ex. D. Moreover, the only specific allegations of infringing conduct occurred between October 28, 2008 and February 2, 2009 and then again on January 26,2010. Second Am. Compl. ¶¶ 35, 47. And, although Plaintiff argues that "[i]nformation relating to individuals, hedge funds or financial institutions that has not changed exists in the same form as it did in 2001," it fails to specify a single piece of information that was downloaded in 2008, 2009, or 2010 that resided on the database as it existed in 2001. Pl.'s Mem. Law Opp. Def.'s Mot. Dismiss 14. As a result, pleading merely that Defendants improperly accessed Bigdough fails to plead that Defendants infringed on the content of the database that is registered as opposed to the content that is not, much less "which specific original works are the subject of the copyright claim." Kelly, 145 F.R.D. at 36. As it stands, "the complaint [is] too ambiguous to reasonably enable defendant to answer." Id. at 35. Defendants suggest that at a minimum Plaintiff should come forward with a comparison of what was allegedly copied with what is contained in the update registered in 2001. Def.'s Reply Mem. Law Supp. Mot. Dismiss 5. The Court agrees and dismisses this claim, granting Plaintiffs leave to replead in order to identify the overlap between the portions of Bigdough for which Plaintiff registered a copyright and the portions of Bigdough that Defendants improperly accessed.
"[T]he Register of Copyrights has issued regulations permitting group registration for 'automated databases' . . . ." R.F.M.A.S., Inc. v. Mimi So, 619 F.Supp.2d 39, 58 (S.D.N.Y. 2009) (quoting 37 C.F.R. § 202.3(b)(5)).
Plaintiff does not object to the consideration of this exhibit, and it is incorporated into the complaint by reference. See Second Am. Compl ¶ 72.
Plaintiff alleges that de la Messeliere and the Acquired Subsidiaries may or may not have infringed on Plaintiff's copyrights; however, Plaintiff does not plead that any such infringement actually occurred, much less the specifics of who actually infringed on what copyrighted material by what conduct.
3. Violation of the SCA
The SCA creates a cause of action against anyone who:
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or18 U.S.C. § 2701(a). An "electronic communication service" is "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15). This includes telephone companies, internet service providers, and electronic bulletin boards but excludes most commercial websites. See In re Doubleclick Inc. Privacy Litigation, 154 F. Supp. 2d 497, 508 (S.D.N.Y. 2001); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 879-80 (9th Cir. 2002); In re JetBlue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299 (E.D.N.Y. 2005); Crowley v. Cybersource, 166 F. Supp. 2d 1263, 1270-71 (N.D. Cal. 2001).
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system . . . .
The Plaintiff argues that Bigdough is an electronic bulletin board. Pl.'s Mem. Law Opp. Def.'s Mot. Dismiss 18-19. However, Plaintiff does not allege in the complaint, the amended complaint, or the second amended complaint that Bigdough is a bulletin board service for these purposes or that users can communicate through the system. See generally Second Am. Compl. Rather, Plaintiff adds these new allegations in its opposition brief. Pl.'s Mem. Law Opp. Def.'s Mot. Dismiss 18-19. Plaintiff cannot amend its complaint in this manner.
In any case, any such amendment would be futile. The SCA legislative history provides the following definition of an electronic bulletin board:
Electronic 'bulletin boards' are communications networks created by computer users for the transfer of information among computers. These may take the form of proprietary systems or they may be noncommercial systems operating among computer users who share special interests. These noncommercial systems may involve fees covering operating costs and may require
special 'passwords' which restrict entry to the system. These bulletin boards may be public or semi-public in nature, depending on the degree of privacy sought by users, operators or organizers of such systems.S.Rep. No. 99-541, at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3562-63. Plaintiff bases its analogy on the following facts:
[Bigdough] enables users to temporarily post information pertaining to the profiles contained in the Database, which notations may be reviewed by others. Within Ipreo, information posted by its employees may be viewed by other Ipreo employees. Employees of licensees may likewise view information posted by other employees, depending on the scope of the license. These notations are additive to the Database but the Database itself cannot be modified. Because these notes may take the form of communications to others (either within Ipreo or the licensee) who have access to this information, the Database can act as an "electronic bulletin board" because the information is available for viewing and sharing with other users.Pl.'s Mem. Law Opp. Def.'s Mot. Dismiss 18. Courts have declined to deem a website an "electronic communication service" merely because it facilitates communication between the website and the user. JetBlue, 379 F. Supp. 2d at 308-09. We further hold that simply allowing all individuals under one license logging in with the same user identification and password to view notes left by others under the same license that had logged in with that user identification and password, without allowing any communication between individuals with different licenses or user identifications, does not transform an ordinary commercial website or electronic database into an electronic communication service. This holding is consistent with caselaw that has held that commercial websites such as Amazon.com and JetBlue.com are not electronic communication services despite the fact that multiple individuals logging in with the same user identification and password could view wish lists or reservations made by other individuals logging in with that user identification and password. See Id., Crowley, 166 F. Supp. 2d at 1270-71. Accordingly, an amendment asserting that Bigdough is an "electronic communication service" would be futile, and this claim is dismissed with prejudice.
Plaintiff argues that it has standing to sue under the SCA regardless of whether it itself operates an "electronic communications service." Pl.'s Mem. Law Opp. Def.'s Mot Dismiss 19-20. The Court need not address the issue of standing (and indeed Defendants do not raise it) as there has been no violation of the SCA in the first place.
4. Violation of the CFAA
§ 1030(g) of the CFAA creates a private right of action if "the defendants' wrongful conduct causes one of the enumerated types of 'loss or damage' set forth in subsection (c)(4)(A)(i) of the statute." University Sports Pub. Co. v. Playmakers Media Co., 725 F.Supp.2d 378, 387 (S.D.N.Y. 2010) (citing 18 U.S.C. § 1030(g); Nexans Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d 468, 472 (S.D.N.Y.2004)). "[L]oss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value" satisfies the § 1030(c)(4)(A)(i) requirement in § 1030(g). § 1030(c)(4)(A)(i)(I). "[T]he term 'damage' means any impairment to the integrity or availability of data, a program, a system or information." § 1030(e)(8).
[T]he term "loss" means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.§ 1030(e)(11). "The complaint must also allege with some particularity the "damage" and "loss" (as defined in the CFAA) claimed to be involved, with, moreover, facts showing that the $5,000 threshold of Section 1030(a)(4) is satisfied." Marketing Technology Solutions, Inc. v. Medizine LLC, No. 09 Civ. 8122 (LMM), 2010 WL 2034404, at *7 (S.D.N.Y. May 18, 2010).
a. Damage or Loss
While Plaintiff does not allege specific "damage" to its system, Plaintiff does allege that it suffered a "loss." Plaintiff alleges that, as a result of Defendants' unauthorized access and demonstrated possession of data without authorization, Plaintiff conducted a damage assessment and enacted "remedial measures" costing $81,000, thereby satisfying § 1030(c)(4)(A)(i)(I) and § 1030(g). Second Am. Compl ¶¶ 66, 96. Defendants, however, claim that the § 1030(g) "damage or loss" requirement cannot be met by costs associated with damage assessment and remedial measures absent some underlying damage.
The weight of caselaw holds that a Plaintiff can satisfy the CFAA § 1030(g) "damage or loss" requirement by pleading a loss stemming from a damage assessment and/or remedial measures, even without pleading actual damage. University Sports, 725 F.Supp.2d at 387 (citations and quotations omitted) (noting that "the costs of investigating security breaches constitute recoverable losses, even if it turns out that no actual data damage or interruption of service resulted from the breach"); Kaufman v. Nest Seekers, LLC, No. 05 Civ. 6782(GBD), 2006 WL 2807177, at *8 (S.D.N.Y. Sept. 26, 2006) (citation omitted) ("The claimed loss sustained by [the plaintiffs] in investigating the potential damage to their computer system and Website is not lessened merely because fortuitously no physical damage was allegedly caused to the computer system or software."). While costs incurred by a Plaintiff in response to a violation of the CFAA must be reasonable in order to constitute losses under § 1030(e)(11) and thereby create a private right of action under § 1030(g), whether Plaintiff's costs in this case were reasonable is a question of fact not to be resolved at the Motion to Dismiss stage. See I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc., 307 F.Supp.2d 521, 526 (S.D.N.Y. 2004) (deeming a pleading similar to Plaintiff's under similar circumstances to be sufficient). Accordingly, Plaintiff has adequately pled a loss in excess of $5000 and has adequately pled a cause of action under § 1030(g).
It is questionable whether a damage assessment and remedial measures would be "reasonable" and thereby a loss under § 1030(e)(11) in the case where a plaintiff knew or should have known that no damage had resulted from a defendant's wrongful conduct. If it were, a plaintiff could circumvent the $5000 damage or loss requirement by conducting an unnecessary $5000 damage assessment after any instance of unauthorized access, thereby creating a federal cause of action. However, whether that is what occurred here is a question to be resolved at the summary judgment stage.
b. Vicarious Liability
Both parties agree that the CFAA allows for vicarious liability only when its violation was affirmatively urged or otherwise directed by the employer. See Pl.'s Mem. Law Opp. Def.'s Mot. Dismiss 24-25 (citing Charles Schwab & Co. v. Carter, No. 04 Civ. 7071, 2005 WL 2369815 (N.D. Ill. Sept. 27, 2005); Def.'s Mem. Law Reply Def.'s Mot Dismiss 9-10 (same). The complaint alleges not merely that one of Defendants' employees, of his or her own accord, accessed Bigdough without authorization. Rather, the complaint alleges that Defendants themselves repeatedly accessed Bigdough in an effort to gain an unfair competitive advantage over Plaintiff. See, e.g., Second Am. Compl. ¶ 35 ("John Doe Corporation knowingly, intentionally and without authorization, accessed [Bigdough] and unlawfully obtained such unauthorized access through the illegal use of Mampouya's password to the Database."). Accordingly, we hold that Plaintiff has alleged sufficient facts to withstand dismissal of the CFAA claim for lack of vicarious liability. See Nexans, 319 F.Supp.2d at 472.
CONCLUSION
For the reasons set forth above, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff's claims for violation of the SCA are DISMISSED with prejudice. Plaintiff's claims for copyright infringement are DISMISSED without prejudice and with leave to re-file. If Plaintiff wishes to file an amended complaint, Plaintiff is ordered to do so by March 24, 2011. SO ORDERED:
/s/ _________
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE Dated: New York, New York
March 7, 2011