Railcar Management LLC v. Cedar AI, Inc

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3 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

4 AT SEATTLE

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RAILCAR MANAGEMENT, LLC,

6 Plaintiff,

v.

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CEDAR AI, INC.; MARIO PONTICELLO;

C21-0437 TSZ

8 DARIL VILHENA; and YI CHEN,

Defendants, MINUTE ORDER

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v.

10 WABTEC CORPORATION,

11 Third-Party Defendant.

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The following Minute Order is made by direction of the Court, the Honorable

Thomas S. Zilly, United States District Judge:

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(1) The request for judicial notice, docket no. 132, made by defendants Cedar

14 AI, Inc., Mario Ponticello, Daril Vilhena, and Yi Chen (collectively, the “Cedar

Defendants”), is DENIED. The document at issue is a small portion1 of the file

15 https://support.railconnect.com/Manuals/TMSSystemMaintenance.pdf, which was

generated by Google as it “crawl[ed] the web.” See Ex. A (docket no. 132-1 at 2). The

16 Cedar Defendants make no assertion that the excerpt contains facts that are “not subject

to reasonable dispute” because they are “generally known” or “can be accurately and

17 readily determined from sources whose accuracy cannot reasonably be questioned.” See

Fed. R. Evid. 201(b)(1)&(2). Rather, the Cedar Defendants ask the Court to take judicial

18 notice of the alleged fact that the material was “publicly available” before this lawsuit

commenced. See Reply at 3 (docket no. 156). The exhibit does not itself, however,

19 establish how or to whom it was accessible. To prove that the file was on an open

website at a particular moment in time, the Cedar Defendants must offer evidence and/or

20 testimony outside the pleadings, which the Court may not consider in conjunction with

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1 The submitted pages consist of (i) the title page for “TMS Guide: System Maintenance,” which

bears a copyright notice, (ii) various warnings and explanations, (iii) the table of contents, and

1 their related motion brought pursuant to Federal Rule of Civil Procedure 12(c). See

Threshold Enters. Ltd v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 145 (N.D. Cal. 2020)

2 (“Generally, a court may not consider any material beyond the pleadings in ruling on a

Rule 12(c) motion . . . .”); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896

3 F.2d 1542, 1550 (9th Cir. 1990) (“Judgment on the pleadings is proper when the moving

party clearly establishes on the face of the pleadings that no material issue of fact remains

4 to be resolved and that it is entitled to judgment as a matter of law. . . . [J]udgment on the

pleadings is improper when the district court goes beyond the pleadings to resolve an

5 issue . . . .” (citation omitted, emphasis added)). In ruling on the Cedar Defendants’

Rule 12(c) motion, the Court will not consider Exhibit A to their request for judicial

6 notice.

7 (2) The Cedar Defendants’ motion for partial judgment on the pleadings,

docket no. 128, is DEFERRED and RENOTED to February 10, 2023. The parties are

8 DIRECTED to file, by the new noting date, supplemental briefs, not to exceed ten (10)

pages in length, addressing the following issues:

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(a) With respect to plaintiff’s claim under the Counterfeit Access

Device and Computer Fraud and Abuse Act of 1984 (“CFAA”), whether the

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Second Amended Complaint, docket no. 99, pleads the requisite “intent to

defraud.” See 18 U.S.C. § 1030(a)(4); Synopsys, Inc. v. Ubiquiti Networks, Inc.,

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313 F. Supp. 3d 1056, 1072 (N.D. Cal. 2018) (for a CFAA claim under

§ 1030(a)(4), an intent to defraud must be pleaded with particularity (citing Fed.

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R. Civ. P. 9(b) and Oracle Am., Inc. v. Serv. Key, LLC, No. C12-790, 2012 WL

6019580, at *6–7 (N.D. Cal. Dec. 3, 2012))); see also hiQ Labs, Inc. v. LinkedIn

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Corp., 31 F.4th 1180, 1200–01 (9th Cir. 2022) (indicating that, because CFAA

§ 1030 applies to both civil actions and criminal prosecutions, the rule of lenity

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applies when construing the statute).

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(b) With respect to the claim plaintiff asserts pursuant to the Stored

Wire and Electronic Communications and Transactional Records Access

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provisions of the Electronic Communications Privacy Act of 1986, also known

as the Stored Communications Act (“SCA”), whether the Second Amended

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Complaint, docket no. 99, adequately alleges that plaintiff’s Transportation

Management System (“TMS”) or plaintiff’s RailConnect File Transfer Protocol

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(“FTP”) Site (ftp.railconnect.com) is “a facility through which an electronic

communication service is provided.” See 18 U.S.C. § 2701(a) (emphasis added);

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18 U.S.C. § 2510(15) (defining “electronic communication service” as a “service

which provides to users thereof the ability to send or receive wire or electronic

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communications”); see also In re Facebook, Inc. Internet Tracking Litig.

(Davis v. Facebook, Inc.), 956 F.3d 589, 608 (9th Cir. 2020) (observing that, to

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pursue an SCA claim, the plaintiffs were required to plead that “Facebook

(1) gained unauthorized access to a ‘facility,’ where it (2) accessed an electronic

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communication in ‘electronic storage’” (emphasis added)); id. at 609 n.10

1 the Ninth Circuit “need not decide whether Plaintiffs sufficiently allege that their

personal computers, web browsers, and browser managed files are ‘facilities,’

2 through which electronic communications service providers operate” (emphasis

added)).

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(c) With respect to plaintiff’s SCA claim, whether plaintiff’s TMS

4 and/or RailConnect FTP Site qualify as a “facility through which an electronic

communication service is provided” constitutes a question of law or fact.

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(3) The Clerk is directed to send a copy of this Minute Order to all counsel of

record.

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Dated this 30th day of January, 2023.

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8 Ravi Subramanian

Clerk

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s/Laurie Cuaresma

10 Deputy Clerk

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