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II. PRIMARY QUESTIONS PRESENTED
Limitations Bars All Claims. The limitations period for all of Plaintiff’s
claims is two years or less. On October 15, 2009, Plaintiff issued a public
statement addressing the same allegations she makes in this lawsuit.
Plaintiff filed this lawsuit nearly four years later, on August 26, 2013.
Question 1: Are Plaintiff’s claims time-barred?
Satisfaction of CFAA Threshold $5,000 Loss. The CFAA requires
Plaintiff to plead she sustained a loss aggregating at least $5,000 during any
1-year period. Plaintiff did not allege any specific time period during which
she alleges she sustained the loss.
Question 2: Did Plaintiff plead a $5,000 loss during any 1-year?
Under the CFAA, loss means cost of remedial measures taken related to
impairment or damage to a computer or data (including online accounts).
Plaintiff alleged information was taken from a computer, not that a
computer was impaired or damaged.
Question 3: If there was no impairment or damage to a computer,
could Plaintiff have sustained a loss?
Plaintiff alleges the loss is (1) the cost of her time spent investigating and
assessing harm caused by the access (but not harm to the computers), (2)
lost revenue, and (3) consequential damages. Plaintiff’s time was not spent
investigating or repairing damage to a computer or data. Lost revenue and
consequential damages cannot be a loss unless there was interruption of
service. Plaintiff has not alleged interruption of service.
Question 4: Where there is no damage to a computer or data and no
interruption of service, can loss be comprised of time spent
investigating, lost revenue, and consequential damages?
Satisfaction of CFAA Access. The CFAA prohibits unauthorized access of
computer or online information, not misuse or misappropriation. Plaintiff’s
access allegations are speculative, naked assertions that do not specify the
computer or account accessed, when accessed, or how access was
accomplished.
Question 5: Do conclusory allegations of logging into an unspecified
“email account” or “bank account” suffice to state a CFAA wrongful
access claim?
Publicity Given to Private Life Requires Information Be True. To state
a claim for public disclosure of private facts it is essential that the facts
disclosed be true. Plaintiff does not allege the facts disclosed are true but
claims some are false and defamatory.
Question 6: Unless Plaintiff alleges the facts disclosed are true, can she
state a claim for publicity given to private life?
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF
MOTION TO DISMISS FIRST AMENDED COMPLAINT
PAGE 2
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 3 of 26
III. STATEMENT OF RELEVANT FACTS
On June 12, 1999, Jonathan K. Gosselin and Katie I. Gosselin (“Kate”) were married.
Kate is a registered nurse, last working in the nursing industry in December 2006. Jonathan is a
Microsoft Certified Systems Engineer, last working in the information technology industry in
November 2007, as an information technology analyst for the Pennsylvania Governor’s Office.
While married, Jonathan and Kate lived together in the same home. In their home was a
Dell desktop computer (the “Dell Computer”) that Jonathan purchased in 2002, which is licensed
to Jonathan. The Dell Computer had a Microsoft Windows XP operating system and Microsoft
Office software, both of which were licensed to Jonathan. Jonathan was always the
Administrator of the Dell Computer; Kate was only a Power User and had no administrative
permissions. Jonathan’s Dell Computer eventually became the Gosselin family computer and the
children began playing on it using either Jonathan’s account or Kate’s account.
Jonathan regularly backed up the hard drive of the Dell Computer and the backups were
saved to CD ROM or DVD discs. The backups included .pst files containing Personal Folders
belonging to Jonathan and Kate which were stored in the Microsoft Outlook email program
under the following directory: C:/Documents and Settings/outlook.
On June 22, 2009, Kate filed for divorce. After Kate filed for divorce, Jonathan moved
out of the family home and into an apartment above the garage of the family home (the
“Apartment”); Jonathan left his Dell Computer in the family home for continued use by his
children. Jonathan was still permitted access to the family home during this time. On or about
April 2010, Jonathan observed the hard drive of his Dell Computer was failing so he performed a
backup of it and stored the data on DVD discs. Jonathan created two copies of the DVDs, one for
himself and one for Kate. These final backup DVDs included family pictures, business contracts,
and other information. The backup DVDs were labeled and dated for archival purposes.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 3
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Once the divorce was final, Jonathan was required to move from the Apartment; Kate
continued living in the family home. When Jonathan moved from the Apartment, he left Kate’s
copy of the backup DVDs in the Apartment in a box along with other items he believed Kate
would want. He informed Kate that the DVDs were in the box. The following day Kate contacted
Jonathan and asked if he would be returning for any other items left in the Apartment; he
responded that he was not and she could keep or discard the items as she saw fit. The children
volunteered to Jonathan that Kate (and her friend) threw away in the trash everything left behind
in the Apartment (presumably, including Kate’s copy of the DVDs that Jonathan left behind).
Jonathan has not wrongfully accessed any computer, online accounts, or telephone belonging to
Kate—it is far more plausible that Kate threw out the DVDs in the trash herself.
Shortly thereafter, the hard drive of Jonathan’s Dell Computer failed. Jonathan destroyed
the hard drive in a manner consistent with his training by taking it apart, removing the physical
disc, physically destroying the physical disc, and then discarding the pieces away separate from
the actual hard drive device.
IV. ARGUMENTS AND AUTHORITIES
A. The First Amended Complaint Fails To Meet The Minimum Legal Standards
Required To Survive A Rule 12(b)(6) Motion To Dismiss.
1. Plaintiff’s First Amended Complaint consists of little more than threadbare
recitals of the elements of causes of action and conclusory statements.
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint must be dismissed if it
fails to state a claim upon which relief can be granted. While a court considering a motion to
dismiss is required to review the complaint in the light most favorable to the plaintiff, there are
minimal standards that must be met. Conclusory allegations, legal conclusions couched as factual
allegations, or mere recitation of the elements of a cause of action, are not entitled to such
presumption.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 4
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Even under the liberal notice pleading standards of Rule 8, a plaintiff must provide
sufficient factual allegations to demonstrate a plausible claim for relief prior to the court
unlocking the doors to expensive discovery. “[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, (2007)).
In Iqbal, the Supreme Court provided a concise guide with three steps for courts to follow
when considering a motion to dismiss. The Court draws a key distinction between what it calls
“conclusory allegations” and “factual allegations” and treats them very differently. Iqbal, 556
U.S. at 680-81. The Court began its analysis with what is often referred to as “the two-pronged
approach” set forth in Twombly, 550 U.S. at 556, and expounded upon it to further explain the
steps for reviewing a motion to dismiss: (1) reject the “bald allegations” because bald allegations
are conclusory and not entitled to be assumed true; (2) considering only the “factual allegations,”
use common sense and judicial experience to consider the plausibility of the allegations and
whether there is an “obvious alternative explanation.” See id. at 679-82.
a) Reject the “bald allegations” because “bald allegations” are
conclusory and not entitled to be assumed true.
In Iqbal, the Court explained the principles for why the “bald allegations” must be
rejected. “First, the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Rule 8
does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.
Id. at 678-79.
Reviewing the complaint at issue in Iqbal, the Court stated “[w]e begin our analysis by
identifying the allegations in the complaint that are not entitled to the assumption of truth.” Id. at
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680. The Court then looked at the following allegations: (1) “petitioners ‘knew of, condoned, and
willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter
of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate
penological interest.’” (2) “Ashcroft was the ‘principal architect’ of this invidious policy, and []
Mueller was ‘instrumental’ in adopting and executing it.” Id. at 680-81. The Court referred to
these as “bare assertions, much like the pleading of conspiracy in Twombly, amount[ing] to
nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination
claim, namely, that petitioners adopted a policy ‘”because of,” not merely “in spite of,” its
adverse effects upon an identifiable group.’ As such, the allegations are conclusory and not
entitled to be assumed true.” Id. at 681.
The Court made it very clear, however, that it was “not reject[ing] these bald allegations
on the ground that they are unrealistic or nonsensical.” Id. Instead, “[i]t is the conclusory nature
of [the] allegations rather than their extravagantly fanciful nature, that disentitles them to the
presumption of truth.” Id. In other words, the Court declared war on “bald allegations” because
of their conclusory nature.
b) Considering only the “factual allegations,” use common sense and
judicial experience to consider the plausibility of the allegations and
whether there is an “obvious alternative explanation.”
Next consider only the “factual allegations” in the complaint to determine if they
plausibly suggest an entitlement to relief. Id. at 681. “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 6
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 7 of 26
The complaint in Iqbal contained “factual allegations” that, taken as true, were consistent
with the plaintiff’s claim for relief but that was not the end of analysis. There were more likely
explanations which explained those events in a way that made the “factual allegations” not
plausible. The plausibility requirement is what made the difference between granting and
denying the motion to dismiss. That is, the Court found there were factual allegations that
supported the plaintiff’s theory of the case and that there were alternative theories as well.
Relying upon its common sense and judicial experience, the Court compared a “’obvious
alternative explanation’” to the theory advanced by the plaintiff and inferred that the theory
advanced by the plaintiff was not a plausible conclusion. Id. at 682.
The Court went deeper into the analysis. It reasoned that even if the factual allegations
supporting the plaintiff’s theory had given rise to a plausible inference in its favor, that inference
alone would not entitle it to relief. Id. The Court then went a level deeper into the discrete
nuances of the specific claims pleaded by the plaintiff to see if the complaint contained sufficient
factual allegations to support not only the claims in general, but the discrete nuances of the
claims as well. Id. The Court found that the complaint failed to do so. The complaint failed to
“’nudg[e]’” the claim “’across the line from conceivable to plausible.’” Id. at 683 (quoting
Twombly, 550 U.S. at 570). Where the factual allegations fail to nudge the claim across the line
from conceivable to plausible, the pleading is inadequate.
c) 3 Questions: “no” to any of these questions requires dismissal.
In summary, the Court’s Iqbal analysis provides 3 questions to ask when analyzing a
complaint to determine if it fails to state a claim:
1. Ignoring all “bald allegations” and “legal conclusions,” do the “factual
allegations” support the elements of the claim?
2. If so, does common sense and judicial experience suggest the plaintiff’s theory of
the claim is plausible or that there are more likely alternative explanations?
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 7
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 8 of 26
3. If not, are the factual allegations supporting the discrete nuances of the claim
strong enough to nudge the claim across the line from conceivable to plausible?
A “no” to any of these questions means the allegations in the complaint do not meet the Supreme
Court’s Iqbal standards and must be dismissed. Two exemplary cases demonstrate that Plaintiff’s
Amended Complaint does not make it past the first question.
2. Two exemplary cases show why the Amended Complaint is too vague and
conclusory to support the claims, suggest her theory is plausible, or nudge
the claim across the line from conceivable to plausible.
The factual weakness of Plaintiff’s Amended Complaint is analogous to the Amended
Complaint in JBCHoldings NY, LLC v. Pakter, 931 F. Supp.2d. 514 (S.D.N.Y. 2013), and
Complaint in Smith v. Trusted Universal Standards In Elec. Transactions, Inc., 2010 WL
1799456 (D.N.J. May 4, 2010). The JBCHoldings and Smith courts dismissed the complaints
because they contained only vague and conclusory allegations and speculation as to actual facts.
In JBCHoldings, the court addressed the Computer Fraud and Abuse Act claim urged in
this case. The court found that some of the CFAA claims were deficient as a matter of law, but
that others could have been viable had the Amended Complaint not been too conclusory and
speculative to pass muster. JBCHoldings, 931 F. Supp.2d at 525. “These are precisely the sort of
speculative, ‘naked assertion[s]’ that do not suffice to survive a motion to dismiss.... [a]lthough
the plausibility requirement ‘is not akin to a “probability requirement” ... it asks for more than a
sheer possibility that a defendant has acted unlawfully.’ Plaintiff’s pleadings are repeatedly
couched in terms of sheer possibility, otherwise known as conjecture.” Id. at 526.
The Smith court rejected similar conclusory allegations where the Plaintiff had not made
any factual averments regarding interception of his communications for a Wiretap Act claim,
which is as vital to that claim as allegations of access are for the CFAA. The court found
Plaintiff’s own allegations demonstrated his claim was a mere fishing expedition for liability:
“Plaintiff does not know the exact reason for being blocked. It may be due to eavesdropping or
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 8
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 9 of 26
some other reason. It is also possible that all reports, blocking and blacklisting are erroneous and
no eavesdropping took place.” Smith, 2010 WL 1799456 at *11. “What Plaintiff has alleged in
effect is the mere possibility of liability, but not plausible liability. Absent facts to support his
speculation, he is not entitled to discovery to see what he may find.” Id.
Compare the substance of Plaintiff’s allegations to those in JBCHoldings and Smith.
Amended Complaint
“Jon illegally hacked into Kate’s email account, and
her phone, and bank accounts.” Am. Compl. p. 1.
“Jon began accessing Kate’s password protected
email [and banking] account without her
authorization.” Am. Compl. ¶¶ 11, 14.
“On information and belief, Jon has continued to
access Kate’s email account, online banking
account, and cellphone.” Am. Compl. ¶ 24.
“On information and belief, Jon’s unauthorized
access to known password protected accounts
through the Internet has been continuous and
systematic.” Am. Compl. ¶ 25.
“In reality, Hoffman, Jon Gosselin, and Does 1-20
... hacked into Kate Gosselin’s various accounts–
and the protected computers ....” Am. Compl. ¶ 32.
“On information and belief, Defendants Hoffman,
Jon Gosselin, and Does 1-20 illegally accessed
Kate’s computers confidential data ....” Am. Compl.
¶ 38.
“Jon Gosselin, and potentially others ... improperly
used Plaintiff’s login information, namely her login
user identity and her password, without
authorization to access the contents of those
accounts and the computers ....” Am. Compl. ¶ 48.
|
JBCHoldings NY, LLC v. Pakter
“someone, currently believed to be Janou, or one of
her agents, placed a flash memory drive on JBC
and JP computer servers ... in an effort to
surreptitiously rip information from the drives.”
JBCHoldings, 931 F. Supp.2d at 525-26.
“Plaintiffs' technology personnel found spyware and
malware on Plaintiffs' servers. They believe the
spyware to have been possibly remotely placed.
Further, they believe it possible that information
was taken remotely by Janou and Puglia. Indeed,
according to IT personnel, Janou could have
passed along her login-information to Puglia, in
excess of her authorized use, which would explain
the placement, remotely of spyware or the remote
removal of Plaintiffs' data.” Id. at 526.
“upon information and belief, ‘all Defendants’ have
been using the two notebooks belonging to
plaintiffs that Janou has yet to return.” Id.
Smith v. Trusted Universal Standards
“by monitoring Plaintiff's Internet communications
and/or allowing third parties to do so.” Smith, 2010
WL 1799456 at *11.
|
The allegations in the Amended Complaint are more conclusory and speculative than
those in JBCHoldings, Smith, and Iqbal. There are no factual averments that identify any specific
computer or online account that was accessed, when they were accessed, or how information
needed to accomplish the access was obtained. This is exacerbated by the frequent “information
and belief” allegations demonstrating Plaintiff is speculating.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 9
MOTION TO DISMISS FIRST AMENDED COMPLAINT
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Perhaps most telling is the allegation “Hoffman falsely claimed in certain publications
that he recovered the data from Kate’s computer by digging through her trash that he found on
the street. . . . The materials in his possession could not possibly be physically found in paper
format to that extent. If Hoffman was picking through trash on the street, he did not find this
trove of personal information while engaging in his trash-picking endeavors.” Am. Compl. ¶ 31.
This is not a factual allegation. This is rationalization. This is conjecture. This is speculation—as
to why it had to be hacking—because how else could it have happened, right? Or, is there a more
plausible alternative explanation?
The JBCHoldings case involved a similar rationalization that was not lost on the court:
“Plaintiffs allege that during Janou’s alleged scheme, she was employed by JBC and had ready
access to the proprietary information at issue. She could have ... simply copied the information
to her personal laptop and shared it with her co-conspirators. This would have obviated the need
for her to resort to the type of elaborate ‘outside hacker’ activities in which plaintiffs
alternatively speculate she engaged ....” JBCHoldings, 931 F. Supp.2d at 526. At least in
JBCHoldings the plaintiff offered an explanation for how the defendant was alleged to have
wrongfully accessed the computers. Not so here. In the case at bar, Plaintiff says her login
information was used but does not even offer a speculative guess as to how Defendants gained
access to that information. Was it a Trojan horse? DDoS attack? Malware? Social engineering?
Clairvoyance? We have no idea—neither does Plaintiff.
Plaintiff recites the gist of Defendant Hoffman’s explanation for how he obtained the
information—he found the data discs containing the information in Plaintiff’s trash. See
Hoffman Ans. ¶ 30 [Dkt. 4]. Yet, she expects the Court to disregard this plausible explanation
based only on her conjecture as to what may have been possible—yet, after two tries, Plaintiff
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 10
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Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 11 of 26
cannot allege how the access occurred, i.e., how did Defendants have the information to access
the computers?
Plaintiff’s allegations are classic “unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” See Iqbal, 556 U.S. at 662. They are inadequate to provide a reasonable basis for
inferring that Defendants are liable for the misconduct alleged. JBCHoldings, 931 F. Supp.2d at
526. Plaintiff has alleged the mere possibility of liability, but not plausible liability strong
enough to nudge the claim across the line from conceivable to plausible. Absent facts to support
her speculation, she is not entitled to discovery to see what she may find. Smith v. Trusted
Universal Standards in Elec. Transactions, Inc., 2010 WL 1799456, at *11 (D.N.J. May 4,
2010); See JBCHoldings, 931 F. Supp.2d at 527. Plaintiff’s claims are pure speculation, a fishing
expedition, and should be treated as such.
3. A complaint premised upon information and belief allegations, without real
factual support, will not survive a motion to dismiss.
Allegations made upon information and belief, without factual support, do not allow the
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged,”
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009), and thus do not show that
the pleader is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); See Wright v. Lehigh
Valley Hosp. & Health Network, Inc., 2011 WL 2550361, at *3 (E.D. Pa. June 23, 2011).
In limited situations where the essential facts are uniquely within the control of the
defendant and not capable of being pleaded by the plaintiff, courts have made an exception and
held pleading upon information and belief to be appropriate under the Twombly/Iqbal regime.
Klein v. County of Bucks, 2013 WL 1310877 (E.D. Pa. Apr. 1, 2013). Even then, however, the
plaintiff must plead “a proper factual basis asserted to support the beliefs pled.” Wright, 2011
WL 2550361, at *3; see JBCHoldings, 931 F. Supp.2d at 527. But, where the “averments are
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merely ‘a formulaic recitation of the elements of a cause of action’ ... [r]eliance by [Plaintiff] on
information and belief cannot transform legal conclusions into plausible factual allegations.” Id.
This is not a case where the essential facts are uniquely within the Defendants’ control
and not capable of being pleaded by Plaintiff. The exception by which information and belief
allegations may survive a motion to dismiss is inapplicable. Whatever information lies behind
Plaintiff’s suspicions has been within Plaintiff’s control—most likely in her own trash.
4. Key Allegations Are Not Relevant To The Causes of Action.
Plaintiff’s allegations must be carefully scrutinized. Some key allegations are not relevant
to the claims pleaded. Plaintiff alleges that Defendants wrongfully accessed her cellphone, Am.
Compl. p. 1, ¶¶ 24, 52, but does not claim access to the cellphone under the Computer Fraud and
Abuse Act claim. Id. ¶¶ 44-51. Plaintiff implies that information from the cellphone was
wrongfully disclosed, id. ¶¶ 55-57, yet asserts no causes of action premised on such activity
being wrongful to make it so. Plaintiff makes similar allegations regarding the stealing of a hard
drive, id. p. 1, ¶¶ 17, 18, and likewise asserts no causes of action premised upon the activity.
Allegations regarding the cellphone and hard drive are irrelevant to the claims in this lawsuit.
B. All of Plaintiff’s Claims are Time-Barred and Should Be Dismissed.
All of Plaintiff’s claims have either a one or two year limitations period and are time-
barred.1 The lawsuit was filed on August 26, 2013. Plaintiff was aware of and publicly
commented on the allegations in this lawsuit roughly four years ago—at least as early as 2009.
The essential allegations underlying Plaintiff’s claims in the Amended Complaint are that
1 The law of this Circuit permits a statute of limitations defense to be raised by a motion to dismiss under Rule
12(b)(6), if it is obvious from the face of the complaint that the cause of action has not been timely asserted. See
Kelly v. Eckerd Corp., 2004 U.S. Dist. Lexis 4381, *8 (E.D. Pa. Mar. 11, 2004); First Am. Mktg. Corp. v. Canella,
2004 WL 25037, *5 (E.D. Pa. Jan. 26, 2004) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3rd Cir. 2002));
Demetrius v. Marsh, 560 F. Supp. 1157, 1159 (E.D. Pa. 1983).
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Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 13 of 26
Defendant accessed Kate’s (1) “password protected email account,” Am. Compl. ¶¶ 11-12, (2)
“online, password-protected banking accounts,” Am. Compl. ¶ 14, and (3) cellphone, Am.
Compl. ¶ 16. Those are the same three allegations Plaintiff publicly addressed in 2009.
The public record is replete with Plaintiff’s and Plaintiff’s then-attorneys’ statements
regarding the exact allegations claimed in this lawsuit dating back to 2009:
"Kate Gosselin has heard the allegations made by Stephanie
Santoro that Jon Gosselin [1] 'hacked' into her e-mails, [2] phone,
and [3] online accounts, and she is profoundly disturbed by them,"
her law firm, Schnader Harrison Segal & Lewis, said in a
statement Thursday. "Under the circumstances, Ms. Gosselin is
carefully considering all of her legal options regarding this matter,
and she will pursue them if and when the time is right." 2
The foregoing statement by Plaintiff’s then-attorney is on a website dated October 15, 2009.3
1. The Computer Fraud and Abuse Act claim is time-barred.
The statute of limitations for Plaintiff’s Computer Fraud and Abuse Act civil claim is two
years. “No action may be brought under this subsection unless such action is begun within 2
years of [1] the date of the act complained of or [2] the date of discovery of the damage.” 18
U.S.C. § 1030(g). The relevant date for this inquiry is the date of the act complained up because
there is no allegation of damage in this case. The limitations period for Plaintiff to assert this
claim expired two years after the alleged wrongful access alleged—which necessarily had to
occur on or before October 15, 2009 when Plaintiff publicly acknowledged the allegations—
nearly four years before she filed this lawsuit.
2 New York Daily News: "Jon Gosselin sued by TLC for breach of contract; Kate may take legal action against
'hacking' claims" http://www.nydailynews.com/gossip/2009/10/16/2009-10-
16_jon_gosselin_sued_by_tlc_for_breach_of_contract_kate_may_take_legal_action_again.html
3 Kate Gosselin Considering Legal Options Against Jon After Reading Radar Report,
http://radaronline.com/exclusives/2009/10/kate-gosselin-considering-legal-options-against-jon-after-reading-radar-
report/
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2. The State law claims are time-barred.
Plaintiff asserts state law tort claims against Defendants for Invasion of Privacy (Count
II), Civil Conspiracy (Count III), and Concerted Tortious Action (Count IV). Under
Pennsylvania law, the invasion of privacy claim has a one-year limitation period: “The following
actions and proceedings must be commenced within one year . . . An action for libel, slander or
invasion of privacy.” 42 Pa. Cons. Stat. Ann. § 5523 (West).
Plaintiff’s claims for conspiracy and concerted tortious activity do not stand alone; each
participatory and are dependent upon either the CFAA claim or the Invasion of Privacy claim. If
those claims are time-barred, so too are the conspiracy and concerted tortious activity claims,
both of which independently have two-year limitation periods as well: “[C]laims of . . . civil
conspiracy, and concerted tortious conduct . . . . have a two-year limitations period that begins to
run on the date of injury.” Brock v. Thomas, 782 F. Supp. 2d 133, 140-41 (E.D. Pa. 2011).
3. The Court may take judicial notice of Plaintiff’s awareness in 2009 of the
allegations underlying this lawsuit—it is publicly available information that
is both generally known and capable of accurate and ready determination.
A basic Google search produces numerous results for Plaintiff’s statement by her attorney
in 2009 stating her awareness of the allegations now made in this lawsuit and how, at the time,
she was “carefully considering all of her legal options regarding this matter, and she [would]
pursue them if and when the time is right.”4 This event is common knowledge and undeniable.
Precedent in the Eastern District of Pennsylvania demonstrates that the Court may take
judicial notice of information such as these websites where the matter is in the public domain and
is both generally known and capable of accurate and ready determination. See Wilson v. City of
4 New York Daily News: "Jon Gosselin sued by TLC for breach of contract; Kate may take legal action against
'hacking' claims" http://www.nydailynews.com/gossip/2009/10/16/2009-10-
16_jon_gosselin_sued_by_tlc_for_breach_of_contract_kate_may_take_legal_action_again.html
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 14
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 15 of 26
Philadelphia, 2010 WL 1254111 (E.D. Pa. Mar. 31, 2010), vacated in part on other grounds,
415 Fed. Appx. 434 (3d Cir. 2011). The Wilson Court was considering a motion to dismiss
premised on official immunity issues that required facts concerning the dates and roles of
defendant’s prior employment. This information was not available in the complaint or any
incorporated documents. In granting the motion to dismiss, the court took judicial notice of
information from the defendant’s biography page on a law firm’s website. Id. at n.4.
Similarly, in Inman v. Technicolor USA, Inc., 2011 WL 5829024 (W.D. Pa. Nov. 18,
2011), the court was considering a motion to dismiss concerning the interpretation of a website
User Agreement that was neither attached to the complaint nor specifically referenced therein but
the court determined that it was proper to take judicial notice of the website in granting the
motion to dismiss. Id. at 3-4.
4. The information properly before the Court shows that in 2009, Plaintiff was
aware of the allegations in this lawsuit and all of her claims are time-barred.
The timeline of the case is straightforward. In 2009, Plaintiff was aware of allegations
that “Jon Gosselin 'hacked' into her e-mails, phone, and online accounts,” she was profoundly
disturbed by them, and she was “carefully considering all of her legal options regarding this
matter, and she [would] pursue them if and when the time is right."5 Now, nearly four years later,
Plaintiff has apparently determined that the time is right but it is too late. Plaintiff’s claims
should be dismissed with prejudice.
5 New York Daily News: "Jon Gosselin sued by TLC for breach of contract; Kate may take legal action against
'hacking' claims" http://www.nydailynews.com/gossip/2009/10/16/2009-10-
16_jon_gosselin_sued_by_tlc_for_breach_of_contract_kate_may_take_legal_action_again.html
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 15
MOTION TO DISMISS FIRST AMENDED COMPLAINT
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C. The Amended Complaint Does Not Adequately Plead “Loss” or “Access”—Two
Essential Elements of a CFAA Civil Claim (Count I).
In Count 1 of the Amended Complaint, Plaintiff seeks to avail itself of the civil remedy
of the Computer Fraud and Abuse Act (CFAA) pursuant to 18 U.S.C. § 1030(a)(2)(c). Am.
Compl. ¶ 41. The elements of a civil claim for a violation of section 1030(a)(2) require Plaintiff
to plead and prove that Defendants: (1) intentionally accessed a protected computer, (2) without
authorization or exceeding authorized access, and that he (3) thereby obtained information (4)
from any protected computer, and that (5) there was a loss to one or more persons during any 1-
year period aggregating at least $5,000 in value. See Sealord Holdings, Inc. v. Radler, 2012 WL
707075, at *4 (E.D. Pa. Mar. 6, 2012). The Amended Complaint fails to identify any specific
computer or account that was allegedly accessed, how it was accessed, when it was accessed, or
that there was a $5,000 loss during any 1-year.
1. The Court does not have jurisdiction to consider the CFAA claim because
Plaintiff does not meet the $5,000 loss threshold requirement.
In order to bring a civil claim under the CFAA, Plaintiff must plead that, during any 1-
year period, she sustained a loss of at least $5,000 because of the CFAA violation. Grant Mfg. &
Alloying, Inc. v. McIlvain, 499 Fed. Appx. 157, 159 (3d Cir. 2012); A.V. ex rel Vanderhyne v.
iParadigms, LLC, 562 F.3d 630, 646 (4th Cir. 2009). The loss requirement is a jurisdictional
threshold that must be satisfied before the court is vested with jurisdiction to decide the case
even if the damages are in the millions. See Quantlab Techs. Ltd. (BVI) v. Godlevsky, 719 F.
Supp.2d 766, 776 (S.D. Tex. 2010). The reason for the loss requirement is because the CFAA is
primarily a criminal statute that only has a limited civil remedy.
To successfully plead a civil CFAA claim a plaintiff must strictly adhere to the multi-step
requirements of the statutory framework. First, section 1030(g) provides that “[a]ny person who
suffers damage or loss by reason of a violation of this section may maintain a civil action against
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 16
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 17 of 26
the violator to obtain compensatory damages and injunctive relief or other equitable relief.” 18
U.S.C. § 1030(g). Second, section 1030(g) goes on to state that “[a] civil action for a violation of
this section may be brought only if the conduct involves 1 of the factors set forth in subclauses
(I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i).” Id. Third, looking at the five subsection
(c)(4)(A)(i) factors, the only one applicable to the case at bar is (I): “loss to 1 or more persons
during any 1-year period ... aggregating at least $5,000 in value.” 18 U.S.C. §
1030(c)(4)(A)(i)(I). A plaintiff must satisfy each of these steps for a civil remedy and the critical
inquiry is, was there a loss?
Loss is a specialized term that the CFAA defines as:
[A]ny 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
[.]
18 U.S.C. § 1030(e)(11).
Plaintiff’s Amended Complaint attempts to invoke sub-clause (I) but the allegation once
again6 misses the mark:
Defendants accessed Kate Gosselin’s computer and computer
services without authority to do so and in doing so, caused in
excess of $5,000 in economic losses arising from Jon’s
unauthorized use of her password-protected online accounts.” Am.
Compl. ¶ 50.
Specifically, Plaintiff's losses arose in the form of the cost of her
time in investigating and assessing the harm caused by Jon and
others' unlawful access of the protected computers where her
account information was stored, ensuring the integrity of the
information residing on those protected computers, and the lost
revenue and consequential damages Plaintiff suffered from
conducting this investigation. Am. Compl. ¶ 51.
6 In the Original Complaint Plaintiff alleged "Defendants accessed Kate Gosselin's computer and computer services
without authority to do so and in doing so, caused in excess of $5, 000 worth of damage." Compl. ¶ 47.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 17
MOTION TO DISMISS FIRST AMENDED COMPLAINT
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Plaintiff’s second attempt at pleading a loss is inadequate for several reasons.
a) Plaintiff ignores the 1-year time period requirement.
Plaintiff does not allege any loss (or economic losses) was incurred “during any 1-year
period ... aggregating at least $5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Plaintiff does
not address, much less confine her claim to the time period required by the statute.
b) Plaintiff did not allege a loss—loss and economic loss are not the same.
Plaintiff alleges $5,000 in economic losses in paragraph 50, and in paragraph 51 adds
specificity to what it previously referred to as economic losses: “Specifically, Plaintiff’s losses
arose ....” Am. Comp. ¶¶ 50-51. The CFAA requires a “loss” as defined by the statute. 18 U.S.C.
§ 1030(c)(4)(A)(i)(I). Not damage or damages, each of which also has its own different meaning
under the CFAA. They are not interchangeable. Compare 18 U.S.C. § 1030(e)(8) (“the term
‘damage’ means any impairment to the integrity or availability of data, a program, a system, or
information”), with 18 U.S.C. § 1030(g) (“Any person who suffers damage or loss ... may ...
obtain compensatory damages .... Damages ... are limited to economic damages.”), and the
definition of loss discussed supra, 18 U.S.C. § 1030(e)(11).
Just as loss is a defined term with a specific meaning under the CFAA, economic losses
likewise has a specific, although different meaning. Economic loss means general economic
damages. See Lucker Mfg. v. Milwaukee Steel Foundry, 777 F. Supp. 413, 415 (E.D. Pa. 1991)
(Economic loss has been defined to include loss due to repair costs, decreased value, and lost
profits, consequential damages in the nature of cost of repair or replacement or lost profits, and
damages resulting from the loss of the use of the product.) (citations omitted); Palco Linings,
Inc. v. Pavex, Inc., 755 F. Supp. 1269, 1276 (M.D. Pa. 1990). Plaintiff’s pleading of $5,000 in
economic losses is substantively identical to pleading $5,000 in damages and does not meet the
statutory requirement.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 18
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 19 of 26
c) The components of Plaintiff’s economic losses do not meet the Third
Circuit’s requirement for loss.
The Third Circuit cases are clear on what constitutes a loss. “’Numerous district court
decisions in the Third Circuit have held that to fall within this definition of “loss,” the “alleged
‘loss’ must be related to the impairment or damage to a computer or computer system.”’” Brooks
v. AM Resorts, LLC, 2013 WL 3343993 (E.D. Pa. July 3, 2013) (citations omitted).
“’A compensable “loss” under the CFAA ... is the cost of remedial measures taken to
investigate or repair the damage to the computer, or the loss is the amount of lost revenue
resulting from a plaintiff's inability to utilize the computer while it was inoperable because of a
defendant's misfeasance [i.e., interruption of service].’” Brooks, 2013 WL 3343993, at *5
(citation omitted). Plaintiff does not allege there was an interruption of service. In all other cases,
a loss generally means a cost that is directly related to the impairment or damage to the
computer, Sealord, 2012 WL 707075, at *5, which Plaintiff has not alleged. Because there was
no damage to the computer, “investigating,” “assessing,” and “ensuring the integrity of the
information” does not count.
Plaintiff alleges three components to her economic losses: (1) “the cost of her time in
investigating and assessing the harm caused by Jon and others’ unlawful access of the protected
computers where her account information was stored, ensuring the integrity of the information
residing on those protected computers; (2) “the lost revenue,” and (3) “consequential damages
Plaintiff suffered from conducting this investigation.” Am. Compl. ¶ 51.
(1) Plaintiff’s own time expended is not a loss for two reasons.
The cost of her time cannot be considered a loss for two distinct reasons. First, a loss is a
cost, “the cost of remedial measures taken to investigate or repair the damage to the computer” in
cases where there is no claim of damage or interruption of service. Sealord, 2012 WL 707075, at
*5. Plaintiff does not allege that there has been damage to a computer (including online services)
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 19
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 20 of 26
or that there has been an interruption of service. The only thing Plaintiff has alleged is that
Defendant copied data from computers—not caused any damage or harm to them. See discussion
supra Section IV.C.1.b. She has not alleged that the online services or data were damaged. Time
and effort spent investigating and assessing damage to a computer is outside the scope of the loss
provision where there was no need to restore data, a program, a system, or information to its
condition prior to the Defendant’s conduct. Fink v. Time Warner Cable, 810 F. Supp.2d 633, 641
(S.D.N.Y. 2011).
Second, because there is no allegation of interruption of service, a loss means a cost.
Sealord Holdings, Inc., 2012 WL 707075, at *5. Plaintiff’s own time is not a cost. While there
are cases in which plaintiff-businesses claim the value of their employees’ time as a cost, in
those cases it is a cost to the business because the business must pay the employee for the time
expended. Further, because it must pay its employee, it is able to quantify the value of the time
by determining how much the employee makes per hour and multiplying that amount by the time
the employee expended. See AssociationVoice, Inc. v. AtHomeNet, Inc., 2011 WL 63508, at *8
(D. Colo. Jan. 6, 2011).
(2) Lost revenue and consequential damages do not qualify as a loss.
Plaintiff’s allegation that lost revenue and consequential damages are a loss is incorrect.
It is well settled that lost revenue and consequential damages are not a loss when the Plaintiff has
not alleged an interruption of service. Eagle v. Morgan, 2012 WL 4739436, at *3 (E.D. Pa. Oct.
4, 2012) (citation omitted). Plaintiff has not alleged interruption of service.
Even if Plaintiff’s time were considered a loss, two of the three components Plaintiff
pleads as economic losses are negated. Because Plaintiff includes these two components in her
overall allegation of economic losses without segregating or identifying their value vis-Ã -vis the
third component, the Complaint does not adequately allege a $5,000 loss. See Grant Mfg. &
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 20
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 21 of 26
Alloying, Inc. v. McIlvain, 499 Fed. Appx. 157, 159 (3rd Cir. Oct. 2, 2012); Grant Mfg. &
Alloying, Inc. v. McIlvain, 2011 WL 4467767, at *5 n.12 (E.D. Pa. Sept. 23, 2011) aff'd, 499
Fed. Appx. 157 (3d Cir. 2012); Farmers Ins. Exch. v. Auto Club Group, 823 F. Supp. 2d 847,
856 (N.D. Ill. 2011).
d) The loss (i.e., costs) must be reasonable—assuming all other
allegations regarding loss were adequate, were they reasonable?
Plaintiff alleges her loss was her time “investigating and assessing the harm caused by
Jon and others’ unlawful access” of the online email and bank accounts. Am. Compl. ¶ 51.
Plaintiff also alleges “Jon has continued to access Kate’s email account, online banking account,
and cellphone . . . [and it] has been continuous and systematic.” Am. Compl. ¶¶ 23-24. Plaintiff’s
only allegation as to how these were accessed was Defendant “improperly used Plaintiff’s login
information, namely her login user identity and her password.” Am. Compl. ¶ 48.
Basic common sense demands that if your online accounts are being accessed without
your authorization, all you need to do is change your password or, at worst, your password and
user name. This takes seconds—maybe minutes. Could $5,000 of time even be reasonable for
this simple of a fix? Moreover, if she did not do this, could her investigating and assessing be
reasonable? And, if she did take this basic first step, how is it that Defendant continues to access
these accounts in a continuous and systematic manner? Plaintiff does not say. Considering the
circumstances, is it even possible that $5,000 of Plaintiff’s time to, essentially accomplish
nothing, was reasonable?
e) After two chances, the Amended Complaint’s loss allegations are still
inadequate—dismissal without leave to re-plead is appropriate.
Plaintiff has now had two chances to plead a loss. This issue was specifically challenged
on pages 13-15 of Defendant’s Motion to Dismiss [Dkt. 3]. Plaintiff revised her loss allegations
in the Amended Complaint but still failed to plead the requisite loss. “A continued omission of
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 21
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 22 of 26
this information from Plaintiff's pleadings demonstrates that no such damage existed and that
Plaintiff cannot meet its pleading burden under the Act. In that same vein, Plaintiff would have
been similarly aware of the existence of any interruption in service as a result of alleged
violations under the Act. However, despite the opportunity to amend [her] Complaint, Plaintiff
completely failed to plead any such damage or loss. Accordingly, Plaintiff's claim under the Act
fails.” Advantage Ambulance Group, Inc. v. Lugo, 2009 WL 839085, at *4 (E.D. Pa. Mar. 30,
2009). Plaintiff’s CFAA claim should be dismissed without leave to amend and re-plead again.
2. The Amended Complaint fails to allege how any access could have occurred.
The CFAA is an access violation. “The CFAA expressly prohibits improper ‘access’ of
computer information. It does not prohibit misuse or misappropriation.” United States v. Nosal,
676 F.3d 854, 863 (9th Cir. 2012). “[T]he word ‘access,’ in this context, is an active verb: it
means ‘to gain access to,’ or ‘to exercise the freedom or ability to make use of something.’” Role
Models Am., Inc. v. Jones, 305 F. Supp.2d 564, 567 (D. Md. 2004) (citation omitted). The receipt
of information that has come from a computer is not an access of that computer and not
prohibited by the CFAA. Id. at 566-67. Because the CFAA governs activity that involves
accessing or damaging computers, the access to and use of the computer is integral to the CFAA
and not merely incidental. Dresser-Rand Co. v. Jones, 2013 WL 3810859, at *4 (E.D. Penn. July
23, 2013). "Whatever happens to the data subsequent to being taken from the computer
subsequently is not encompassed in the purview of the CFAA." Id. The most important
allegation for a CFAA violation is the access of a computer. See id. This allegation must be
sufficiently developed by alleging facts suggestive of the proscribed conduct. Sealord, 2012 WL
707075, at *6.
a) Speculative, naked assertions of access do not survive a motion to
dismiss.
Plaintiff’s allegations of access “are precisely the sort of speculative, ‘naked assertion[s]’
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 22
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 23 of 26
that do not suffice to survive a motion to dismiss,” JBCHoldings, 931 F. Supp. 2d at 526, as
discussed previously in this brief and as demonstrated by the comparison of the allegations found
insufficient in JBCHoldings and Smith to those in the Amended Complaint. See discussion supra
Section IV.A.2.
b) The Amended Complaint does not allege a specific computer/account
that was accessed.
Plaintiff’s CFAA claim alleges Defendant wrongfully accessed two things: “email
account” and “bank accounts.”7 Plaintiff does not allege which particular email or bank account
Defendant allegedly accessed, which is essential in determining whether they are “protected
computers.” Fontana v. Corry, 2011 WL 4473285, at *6 (W.D. Pa. Aug. 30, 2011) report and
recommendation adopted, 2011 WL 4461313 (W.D. Pa. Sept. 26, 2011) (citation omitted).
Plaintiff and Defendant were previously married. Am. Compl. ¶¶ 8-11. Given that the
lawsuit between them is essentially a family law dispute, it is important to determine whether
these accounts existed during their marriage, which may have given Defendant a right to access
such accounts (even if the parties did not recognize such right existed). If Defendant had a prior
right to access these accounts, Defendant would continue to have a right to access these accounts
under the “narrow view” which has generally been adopted by the courts in the Eastern District
of Pennsylvania. See Dresser-Rand Co., 2013 WL 3810859, at *5. Under the narrow view,
someone who previously had access to a computer is authorized to continue accessing that
computer regardless of his or her intent to misuse information and any subsequent agreements
that regulate the use of information. See id. (citations omitted). Accordingly, to determine
7 In the Preliminary Statement and Factual Allegations of the Amended Complaint, Plaintiff alleges Defendant stole
a hard drive and hacked into a telephone. See Am. Compl. ¶¶ 1-38. The allegations regarding these devices are not
included in the CFAA claim in the Amended Complaint, see Am. Compl. ¶¶ 44-51; the telephone is mentioned only
once in paragraph 52, in what appears to be legacy language from the Complaint, see Compl. ¶ 48.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 23
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS Document 11-1 Filed 10/22/13 Page 24 of 26
whether an access to a computer "exceeds authorized access" or is "without authorization", it is
imperative to know the identity of the specific computer allegedly accessed, when it occurred,
and how it occurred to determine what rights (if any) the person had to access the computer in
general. The Complaint does not identify any specific computer associated with the alleged
access of e-mail or online banking accounts.
The Amended Complaint only makes a conclusory allegation of accessing an “email
account” and “bank account” or “online bank account” without any further information, most of
which is made on information and belief, which is of no value for this motion to dismiss. See
discussion, supra, Section I.D.2. It is impossible to know whether those accounts of the
information therefrom was stored or backed up locally on a computer Defendant was authorized
to access. For example, had Defendant previously had the right to access the accounts or had the
information from the email or bank accounts been backed up and stored on his own computer,
there would be no violation under any theory of the CFAA.
D. Plaintiff Refuses To—But Must—Plead That The Information In Hoffman’s
Book Kate Gosselin: How She Fooled The World Is True To State A Claim
For Publicity Given to Private Life (Count II).
Pennsylvania recognizes the tort invasion of privacy for publicity given to private life as
set forth in the RESTATEMENT (SECOND) OF TORTS § 652D. See Boring v. Google Inc., 362 Fed.
Appx. 273, 280 (3d Cir. 2010) (citations omitted). The § 652D Publicity Given to Private Life
jurisprudence has developed over decades. One of its essential requirements is that the matter
published must be true—and the plaintiff must allege that it is true in the complaint. “[T]o state a
claim for public disclosure of private facts because an essential element of that tort is that the
facts at issue be true.” Leidholdt v. L.F.P. Inc, 860 F.2d 890, 895 (9th Cir. 1988) (citing
RESTATEMENT (SECOND) OF TORTS § 652D); Culver by Culver v. Port Allegany Reporter Argus,
409 Pa. Super. 401, 404, 598 A.2d 54, 56 (Pa. Super. Ct. 1991). Plaintiff, however, alleges the
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 24
MOTION TO DISMISS FIRST AMENDED COMPLAINT
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“book contained defamatory and untrue information about Kate Gosselin, along with information
that painted Kate in a false and negative light.” Am. Compl. ¶ 36. Plaintiff affirmatively
disproves her claim.
E. The Complaint Fails To Adequately Plead Several Requirements Of The Civil
Conspiracy Claim (Count VI) and Concerted Tortious Action Claim (Count
VII).
Under Pennsylvania law, civil conspiracy and concerted tortious activity are participatory
claims. Unless there is a finding that the underlying tort has occurred, there can be no claim for
civil conspiracy, Eagle v. Morgan, 2013 WL 943350, at *11 (E.D. Pa. Mar. 12, 2013), or
concerted tortious action, State Farm Mut. Auto. Ins. Co. v. Ficchi, 2011 WL 2313203, at *13
(E.D. Pa. June 13, 2011). As discussed previously, the Complaint does not adequately plead an
independent wrong or tort that will support a claim for conspiracy or concerted tortious action.
Counts VI and VII should be dismissed.
Under Pennsylvania law, an essential element of a conspiracy claim is the proof of malice
which “[r]equires that the sole purpose of the conspiracy was to injure the plaintiff and that this
intent to injure be without justification.” Eagle v. Morgan, 2013 WL 943350, at *11 (E.D. Pa.
Mar. 12, 2013). This element is conclusively negated where the Amended Complaint shows
another purpose for the alleged activities. Id. The Amended Complaint affirmatively alleges that
Defendant Robert Hoffman is a reporter, Am. Compl. ¶ 26, that the information allegedly giving
rise to these claims was published in several publications, Am. Compl. ¶ 29, that Hoffman and
Gosselin were paid for this information by various publications, Am. Compl. ¶ 38, the
information was used by Defendant Hoffman to publish and promote the sales of a book, id., and
finally and most importantly, alleges that the Defendants did these things “for the purpose of
profiting from the book and the tabloid publications,” id. Plaintiff’s own pleading affirmatively
disproves her conspiracy claim.
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF PAGE 25
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Case 5:13-cv-04989-JLS
Document 11-1
Filed 10/22/13 Page 26 of 26
Dated: October 22, 2013
Respectfully submitted,
/s/ Shawn E. Tuma
Shawn E. Tuma
BrittonTuma
7161 Bishop Road, Suite 220
Plano, Texas 75024
d. 469.635.1335
f. 972.767.3181
e. stuma@brittontuma.com
Richard L. Orwig (Associate Counsel)
Orwig Law Offices
2213 Quarry Dr., Suite B001
West Lawn, PA 19609
p. 610.898.9880
f. 610.898.1323
e. rlorwig@orwiglaw.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document has been
served via personal hand delivery upon all counsel of record in the above-styled civil action on
October 22, 2013, at the Court’s Status Conference.
/s/ Shawn E. Tuma
Shawn E. Tuma
DEFENDANT JONATHAN K. GOSSELIN’S BRIEF IN SUPPORT OF
MOTION TO DISMISS FIRST AMENDED COMPLAINT
PAGE 26
Robert's motion:
Case 5:13-cv-04989-JLS Document 12 Filed 10/23/13 Page 2 of 2
CERTIFICATE OF SERVICE
I, James P. Golden, certify that the foregoing
motion/joinder has been filed electronically and is now
available for viewing and downloading from the Court’s
Electronic Case Filing System and that the motion/joinder has
been served on October 23, 2013, by email and regular mail.
A. Jordan Rushie, Esquire
Mulvihill & Rushie LLC
The Fishtown Lawyer
2424 E. York Street, Suite 316
Philadelphia, PA 19125
Jordan@FishtownLaw.com
Marc J. Randazza, Esquire
Randazza Legal Group
3625 S. Town Center Drive
Las Vegas, NV 89135
mjr@randazza.com
Attorneys for Plaintiff
Kate Gosselin
Shawn E. Tuma, Esquire
BrittonTuma
7161 Bishop Road, Suite 220
Plano, Texas 75024
stuma@brittontuma.com
Richard L. Orwig, Esquire
Orwig Law Offices
2213 Quarry Dr., Suite B001
West Lawn, PA 19609
rlorwig@orwiglaw.com
Attorneys for defendant
Jonathan K. Gosselin
/s/ James P. Golden
JAMES P. GOLDEN
