SKYPOINT ADVISORS, LLC.

v.

3 AMIGOS PRODUCTIONS LLC.

This matter comes before the Court on plaintiff’s Motion to Dismiss Counterclaims (Doc. #136) filed on October 21, 2019. The defendants filed an Opposition (Doc. #137) on November⁴, 2019. With the permission of the Court (Doc. #147), a Reply (Doc. # 146) and a Sur-Reply (Doc. #149) were filed. For the reasons set forth below, the motion is granted in part and denied in part.

I.

Plaintiff Skypoint Advisors, LLC (Skypoint) is a Florida limited liability company whose members include third-party defendant Denis Dreni (Dreni). (Doc. #93, p. 1.) Skypoint’s Third Amended Complaint (Doc. #93) against³ Amigos Productions, LLC, BlackburnSteele, LLC, Issa Zaroui, and Mark Crawford,¹ alleges the defendants made misrepresentations to induce Skypoint to invest in a film project. (Id. pp. 2, 4-26.) The Third Amended Complaint asserts six claims, including a claim that defendants violated Section 10(b) of the Securities Exchange Act. (Id. pp. 32-47.) In August 2019, the four defendants filed their Counterclaims (Doc. #122) against Skypoint and Dreni. The Counterclaims asserted claims of defamation, violation of the Stored Communications Act, 18 U.S.C. § 2707, and tortious interference with a contract against Skypoint and Dreni jointly and severally. (Doc. 122, pp. 26-29.) Skypoint seeks to have the three counterclaims dismissed for failure to state a claim or lack of subject matter jurisdiction.

II.

A. Failure to State a Cause of Action

Skypoint argues the second and third counterclaims fail to state a cause of action and therefore should be dismissed. (Doc. 136, p. 2.) The Court agrees in part. Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This obligation “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) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555; see also Edwards v. Prime Inc., 602 F. 3d 1276, 1291 (11th Cir. 2010). This requires

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In deciding a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff, Erickson v. Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without adequate factual support are entitled to no assumption of truth,” Mamani v. Berzain, 654 F. 3d 1148, 1153 (11th Cir. 2011) (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Factual allegations that are merely consistent with a defendant’s liability fall short of being facially plausible. Chaparro v. Carnival Corp., 693 F. 3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages in a two-step approach: “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. (1) Count Two: Violation of Stored Communications Act Count Two alleges Skypoint and Dreni violated the Stored Communications Act, 18 U.S.C. § 2707, when Dreni, or someone acting on his behalf, accessed defendant Zaroui’s email account in order to view its contents and copy materials therein. (Doc. #122, p.

28.) Count Two asserts that the copied materials included “a copy of Zaroui’s U.S. passport as well as business-related information such as names and contact information of business contacts.” (Id.) Skypoint argues this count should be dismissed because (1) defendants fail to sufficiently allege that Skypoint and Dreni intentionally accessed the email account without authorization, and (2) the count is premised upon false factual allegations. (Doc. #136, pp. 10-13.) In its Reply, Skypoint also suggests the count should be dismissed as to³ Amigos, Crawford, and BlackburnSteele because they had no privacy interest in Zaroui’s personal email account. (Doc. #146, p. 6.)

The Stored Communications Act (SCA) is violated when anyone “intentionally accesses without authorization a facility through which an electronic communication service is provided; ... and thereby obtains ... access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a). A civil action is available for such a violation. With an exception not applicable to this case, “any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity ... which engaged in that violation such relief as may be appropriate.” 18 U.S.C. § 2707(a). Appropriate relief may include equitable or declaratory relief, damages, and reasonable attorney fees and litigation costs. 18 U.S.C. § 2707(b). An action for violation of the Stored Communications Act may only be brought by a provider of electronic communication service, a subscriber, or a person who is “aggrieved” by the alleged misconduct of the defendant(s). There is no allegation that any of the four defendants were a provider of electronic communication service or a subscriber. Additionally, there is no allegation that³ Amigos, Crawford, or BlackburnSteele had their own emails accessed, or that they had any privacy interest in Zaroui’s personal email account. Because there is no plausible basis to find any of these three to have been aggrieved, Count Two of the Counterclaim is dismissed as to them. To state a claim under the Stored Communications Act, an aggrieved party must sufficiently allege two elements: (1) the defendant intentionally accessed without authorization a facility through which an electronic communication service is provided or intentionally exceeded an authorization to access that facility, and (2) the defendant obtained, altered, or prevented authorized access to a wire or electronic communication while it was in electronic storage in such system. Stirling Int’l Realty, Inc. v. Soderstrom, 2015 WL 2354803, *4 (M.D. Fla. May 15, 2015) (citing

Snow v. DirecTV, Inc., 450 F. 3d 1314, 1321 (11th Cir. 2006)); see also Vista Mktg., LLC v. Burkett, 812 F. 3d 954, 964 (11th Cir. 2016) (holding that unauthorized accessing of emails stored by an online host violates the Stored Communications Act). Skypoint argues that the defendants have failed to sufficiently allege the intentional access element. (Doc. #136, pp. 10-11.) The Court disagrees, and finds that there are sufficiently plausible allegations of intentional access. Defendants allege that Dreni’s and Skypoint’s access to Zaroui’s email account was done willfully and intentionally to harm the defendants, and to use the information therein against them. (Doc. #122, pp. 28-29.) To support this allegation, defendants have provided screenshots of text messages allegedly sent by Dreni to Crawford which (1) reference various individuals, including one named “Vitali,” and (2) contain a photograph of Zaroui’s passport. (Doc. #122, pp. 22-23.) The defendants allege that Dreni accessed Zaroui’s email account and obtained business contact information (such as Vitali’s) and documents (such as the passport). (Id.) The Court thus finds the defendants allegation of intentional access is not a “naked assertion” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678. Construing the allegations and drawing all reasonable inferences in the light most favorable to the non-moving party, the Court finds the defendants allege sufficient facts to satisfy the first element under the Stored Communications Act. Skypoint next argues the second counterclaim should be dismissed because it is refuted by a declaration Dreni has provided, which is attached to Skypoint’s motion. (Doc. #136, pp. 11-13.) In the declaration, Dreni states that after this action was initiated, he received an email from non-party Lul Vulashi expressing interest in joining the lawsuit. (Id. p. 20.) According to Dreni, attached to the email was an image of Zaroui’s passport, and Dreni attests that this is how he received the document. (Id. p. 21.) Dreni states that neither he nor Skypoint accessed, attempted to access, or directed anyone to access

Zaroui’s email account. (Id.) Attached to the declaration is a copy of the email, as well as the passport attachment. (Id. pp. 23-24.) Skypoint argues that Dreni’s declaration “makes it clear that no violation of the [Stored Communications Act] took place” and, therefore, the claim should be dismissed. (Id. p. 13.) While Skypoint acknowledges that the court typically considers only the complaint and the attached exhibits when deciding a motion to dismiss, Skypoint argues that the Court may consider Dreni’s declaration pursuant to Horsley v. Feldt, 304 F. 3d 1125 (11th Cir. 2002). In Horsley, the Eleventh Circuit held a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is “(1) central to the plaintiff’s claim” and “(2) undisputed.” Id. at 1134. “Undisputed” in this context “means that the authenticity of the document is not challenged.” Id. Skypoint argues that Zaroui’s passport is central to the Stored Communications Act claim, and the authenticity of the email attached to Dreni’s declaration with the passport image “cannot in good faith be disputed under Horsley.” (Doc. #136, p. 11 n.1.) Despite Skypoint’s argument to the contrary, defendants do in fact dispute the truthfulness and authenticity of Dreni’s declaration and its attachments. (Doc. #137, p. 7.) For example,

Zaroui states via declaration that he supplied a copy of his passport to Valushi on February 7, 2019, but the supposed email from Valushi to Dreni containing the passport image is dated two days earlier, on February 5th. (Doc. #137-1, p. 15.) The defendants also question why Valushi would be communicating with Dreni in the first place, and suggest Valushi’s email address is the kind of information Dreni would have obtained by accessing Zaroui’s email account.² (Doc. #137, p. 7.) Since Dreni’s declaration and its attachments are being challenged by the defendants, Horsley does not apply, and the Court will not consider them at the motion to dismiss stage. Accordingly, the Court rejects this portion of Skypoint’s argument that the Stored

Communications Act claim should be dismissed for failure to state a claim. (2) Count Three: Tortious Interference with a Contract The third counterclaim alleges Skypoint and Dreni tortuously interfered with a contract between³ Amigos and non-party Mental Media. (Doc. #122, p. 29.) The claim alleges that pursuant to a

10.) The Court finds it unnecessary to address each of these arguments because it is clear that the contents of Kaufman’s declaration are not “undisputed” as that term is used in Horsley.³ As Kaufman’s declaration is challenged by the defendants, the Court will not consider it for purposes of Skypoint’s motion to dismiss.

B. Subject Matter Jurisdiction

Skypoint argues the defamation and tortious interference claims should be dismissed for lack of subject matter jurisdiction. (Id. p. 5.) Anticipating defendants arguments, Skypoint asserts the Court does not have supplemental jurisdiction over either claim because (1) the Stored Communications Act claim should be dismissed for failure to state a claim, and (2) the two claims do not arise from a common nucleus of facts as Skypoint’s Section 10(b) claim in the Third Amended Complaint. (Doc. #136, pp. 7-9.) Defendants assert the Court has jurisdiction over the Stored

Communications Act claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the remaining two claims pursuant to 28 U.S.C. § 1367. (Doc. #122, p. 15.) Alternatively, the defendants assert the Court has jurisdiction over the two state law claims because they arise out of the same transactions and events that give rise to Skypoint’s claims in the Third Amended Complaint. (Id.) Having reviewed the allegations and arguments, the Court finds it has jurisdiction over all three of the claims. As stated above, the Court finds the defendants sufficiently state a cause of action under the Stored Communications Act, and therefore the Court has jurisdiction over that claim pursuant to

28 U.S.C. § 1331. Section 1367 of Title 28 provides that subject to inapplicable exceptions, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). The “case or controversy” standard confers supplemental jurisdiction over all state claims “which arise out of a common nucleus of operative fact” with a substantial federal claim. Parker v. Scrap Metal Processors, Inc., 468 F. 3d 733, 743 (11th Cir. 2006) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)). Therefore, the issue is whether the defamation and tortious interference claims arise out of a common nucleus of operative fact as the Stored Communications Act claim.⁴

Dreni) entered into an agreement with³ Amigos to partially finance the film and then subsequently demanded a return of its investment. Defendants assert that when the investment was not returned, Dreni began trying to disrupt the film’s production and release. (Doc. 122, pp. 21-22.) As part of this campaign, Dreni is alleged to have (1) accessed Zaroui’s email account and obtained business contacts and documents, (2) sent messages to various individuals disparaging the defendants, and (3) interfered with a³ Amigos contract to disrupt post-production and delay the film’s release. (Id. pp. 26-29.) As the three counterclaims arise out of a common nucleus of operative fact, the Court finds it has supplemental jurisdiction over the defamation and tortious interference claims pursuant to 28 U.S.C. § 1367(a). Therefore, the Court denies Skypoint’s motion to the extent it seeks dismissal of those claims for lack of subject-matter jurisdiction. Accordingly, it is hereby ORDERED: Plaintiff’s Motion to Dismiss Counterclaims (Doc. #136) is GRANTED in part and DENIED in part. 1. Count Two of the Counterclaims is dismissed without prejudice as to defendants³ Amigos, Crawford, and BlackburnSteele, and Count Three of the Counterclaims is dismissed without prejudice as to defendants Zaroui, Crawford, and BlackburnSteele. Defendants shall have FOURTEEN (14) DAYS from the date of this Opinion and Order to file amended counterclaims.

2. The Motion to Dismiss is otherwise denied.

DONE and ORDERED at Fort Myers, Florida, this 7th day of January, 2020.

VAY ee DH

E. STEELE

3q ISR UNITED STATES DISTRICT JUDGE Copies: Counsel of Record