Sunergy Solutions LLC v. Underriner

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

SUNERGY SOLUTIONS LLC, et al., )

)

Plaintiffs, )

) Civil Action No.

v. ) 24-12593-BEM

)

KEVIN UNDERRINER, et al., )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

MURPHY, J.

Defendants Quinn Allen and QKM Consulting, Inc. (“QKM”) (collectively,

“Defendants”)1 have moved to dismiss the claims made against them by Plaintiffs Sunergy

Solutions LLC and Sunergy Solutions, Inc. (collectively, “Sunergy”) in the First Amended

Complaint, Dkt. 7 (“Complaint” or “Compl.”). Dkt. 18.

For the reasons stated herein, the Court ALLOWS the motion to dismiss the racketeering

claim (Count VI) as to QKM. Otherwise, the motion is DENIED.

I. Relevant Background

The Court draws the following facts from the Complaint and accepts them as true for

purposes of the instant motion.

Sunergy sells and installs residential solar panel systems throughout the Northeast,

including in Massachusetts. Compl. ¶ 15. One method by which Sunergy acquires new business

1 The Complaint names a third defendant, Kevin Underriner, who has since defaulted and not otherwise

appeared in the case. See Dkts. 1, 16, 22–23. Unless otherwise clarified, the collective “Defendants” refers only to

the two defendants, Allen and QKM, who together have brought this motion.

is through “leads,” purchased from other companies, identifying potential customers. Id. ¶ 26.

Sunergy stores the leads it purchases in a customer relationship management system operated by

Sunbasedata, LLC (“Sunbase”). Id. Sunergy employees are given unique IDs and passwords to

access Sunergy’s leads through its Sunbase account. Id. ¶¶ 28, 41, 48–49, 51. Prior to

December 7, 2023, Defendant Kevin Underriner was responsible for setting up those employee

IDs and passwords as part of his position as a Sunergy employee. Id. ¶¶ 41–42.

At some point between July 2024 and September 7, 2024, Sunergy discovered that its leads

were being exported without authorization “en masse” from its Sunbase account. Id. ¶¶ 31, 33, 47.

Sunergy traced these unauthorized exports to the ID of a single employee, identified in the

Complaint as “JL.” Id. ¶¶ 48–49. JL convincingly denied downloading the suspect leads and,

upon forensic examination, appeared genuinely unconnected with the improper downloads.

Id. ¶¶ 50, 55. Rather, Sunergy was able to trace at least a portion of the exported leads to another

Sunbase account, belonging to QKM. Id. ¶ 48.

QKM, like Sunergy, sells and installs residential solar panel systems throughout the

Northeast, including in Massachusetts. Id. ¶¶ 18, 20, 22. QKM is also Underriner’s new employer.

Id. ¶ 44. The crux of Sunergy’s allegations is that Underriner used his knowledge of Sunergy

employee IDs and passwords to steal Sunergy’s leads for the benefit of himself, QKM, and

Defendant Allen, QKM’s sole officer.2 Id. ¶¶ 5, 43.

Sunergy further alleges that QKM acted upon those stolen leads, resulting in direct

competition between QKM and Sunergy in at least several specific instances. Id. ¶¶ 58–59.

Sunergy alleges that QKM has been able to offer lower prices to its customers because, in addition

2 Allen apparently also used to work for Sunergy, as an independent contractor. Compl. ¶¶ 46, 69.

to the savings from not having to pay for its own leads, QKM has been using Sunergy’s proprietary

contract forms to execute deals with its customers. Id. ¶¶ 25, 60–64.

By September 7, 2024, all of Sunergy’s leads had been exported from its Sunbase account.

Id. ¶ 58. On October 9, 2024, Sunergy filed this lawsuit against QKM, Allen, Underriner, and

other unnamed individuals. Dkt. 1. Sunergy makes claims for conversion, unlawful restraint of

trade under several states’ anti-trust or unfair business practices statutes, and for racketeering under

the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Compl. ¶¶ 72–102.

II. Pending Motions

On February 4, 2025, Defendants moved to dismiss the action for lack of subject matter

and personal jurisdiction, under Federal Rules 12(b)(1) and 12(b)(2), and to dismiss the

racketeering count for failure to state a claim, under Rule 12(b)(6). Dkt. 18.

The parties were able to resolve the question of subject matter jurisdiction at oral argument.

Sunergy confirmed that Sunergy Solutions LLC has a single member, co-Plaintiff Sunergy

Solutions Inc., which is a Massachusetts corporation with a Massachusetts principal place of

business. See also Dkt. 32. Defendants agreed that, accepting those facts as true, the parties are

completely diverse.3 See Disaster Sols., LLC v. City of Santa Isabel, Puerto Rico, 21 F.4th 1, 5

(1st Cir. 2021) (“[L]imited liability companies are citizens of every state of which any of its

members is a citizen.”).4 Accordingly, to the extent it is not withdrawn, the Court DENIES that

part of the motion and considers only the remaining grounds.

3 The amount-in-controversy requirement is also clearly met. See 18 U.S.C. § 1332; Compl. ¶¶ 56, 60, 62.

4 Defendants are citizens of Maine and New Hampshire. Dkt. 19 at 7.

III. Personal Jurisdiction

Defendants argue that each lacks sufficient contacts to constitutionally justify specific

jurisdiction.5 Dkt. 19 at 11–15. Finding otherwise, the Court DENIES the motion as under Rule

12(b)(2).

A. Legal Standard

1. In General

“When a district court rules on a motion to dismiss for lack of personal jurisdiction without

holding an evidentiary hearing, as in this case, the ‘prima facie’ standard governs its

determination.” United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). “That

approach asks only whether the plaintiff has proffered facts that, if credited, would support all facts

essential to personal jurisdiction.” Motus, LLC v. CarData Consultants, Inc., 23 F.4th 115, 121

(1st Cir. 2022) (internal quotes and parentheses omitted). To meet its burden, “the plaintiff may

plead sufficient jurisdictional facts in its complaint, may rely on jurisdictional facts documented

in supplemental filings (such as affidavits) contained in the record, and/or may point to undisputed

facts.” Id. at 123 (internal quotes and parentheses omitted). At the motion to dismiss stage, the

Court must “draw all reasonable inferences from [the alleged, jurisdictional facts] in [Sunergy’s]

favor.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

“Questions of specific jurisdiction are always tied to the particular claims asserted.”

Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir. 1999). Moreover, “the

[specific] personal jurisdiction inquiry in federal question cases . . . differs from the inquiry in

diversity cases,” Swiss Am., 274 F.3d at 618, thus requiring distinct analyses.

5 Sunergy has not argued that either defendant is subject to general jurisdiction in Massachusetts. See Dkt. 26

at 4–5 (advocating for a “minimum contacts analysis”); see also Dkt. 19 at 10–11. The Court thus limits its analysis.

Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir. 2016).

2. Diversity Jurisdiction

For claims over which the Court has diversity jurisdiction, “a plaintiff must satisfy both

the forum state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment.”

C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir. 2014). The

Fourteenth Amendment requires that a plaintiff’s claims “arise out of or relate to the defendant’s

contacts with the forum.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 359

(2021) (internal quotes omitted). Moreover, a defendant must be found to have “purposefully

avail[ed] itself of the privilege of conducting activities within the forum State.” Id. (quoting

Daimler AG v. Bauman, 571 U.S. 117, 127 (2014)). Finally, the exercise of jurisdiction must be

“reasonable.” Id. at 357 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)). These limitations reflect “two sets of values—treating defendants fairly and protecting

‘interstate federalism.’” Id. at 360 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 293 (1980)). “The plaintiff must demonstrate that each of these three requirements is

satisfied.” Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008).

The relatedness inquiry probes the connection between a defendant’s contacts with the

forum and the plaintiff’s claims. Relatedness is satisfied where a defendant’s in-state contacts are

“sufficiently related” to the claims, such to “justify subjecting a defendant to personal jurisdiction

there.” Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 2024 WL 3696388, at *11

(D. Mass. Aug. 7, 2024) (citing Ford Motor, 592 U.S. at 362). Notably, the Fourteenth

Amendment does not require a “strict causal relationship between the defendant’s in-state activity

and the litigation.” Ford Motor, 592 U.S. at 362.6

6 In Ford Motor, the Supreme Court rejected the idea that personal jurisdiction required “proof that the

plaintiff’s claim came about because of the defendant’s in-state conduct.” 592 U.S. at 362. In concurrence, Justice

Alito characterized the sufficient facts alternatively as “causal in a broad sense of the concept” but nevertheless agreed

that the Court “properly rejected” a “but-for” causation requirement. Id. at 373–74 (Alito, J., concurring).

The purposeful availment inquiry considers the intentionality of those forum contacts,

“ask[ing] whether a defendant has deliberately targeted its behavior toward the society or economy

of a particular forum such that the forum should have the power to subject the defendant to

judgment regarding that behavior.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc.,

825 F.3d 28, 36 (1st Cir. 2016) (internal quotes, citations, and parentheses omitted). This

requirement guards against courts’ asserting jurisdiction based on “random, isolated or fortuitous

contacts” or “the unilateral activity of another party.” Id.

“To evaluate the reasonableness requirement, the Supreme Court has provided a set of

‘gestalt factors’ to consider.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 10 (1st Cir.

2009) (quoting N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 26 (1st Cir. 2005)). “These factors

include: the defendant’s burden of appearing, the forum State’s interest in adjudicating the dispute,

the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s

interest in obtaining the most efficient resolution of the controversy, and the shared interest of the

several States in furthering fundamental substantive social policies.” Id. (citing Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).

3. Federal Question

Where the Court’s subject matter jurisdiction is based on the presence of federal questions,

specific jurisdiction requires satisfaction of a federal statute or rule authorizing service of process

and comportment with the Due Process Clause of the Fifth Amendment. Swiss Am., 274 F.3d at

618. “[U]nder the Fifth Amendment, a plaintiff need only show that the defendant has adequate

contacts with the United States as a whole, rather than with a particular state.” Id.; see also Sec.

& Exch. Comm’n v. Gastauer, 93 F.4th 1, 8 (1st Cir. 2024).

“In the mine-run of federal question cases, Federal Rule of Civil Procedure 4(k)(1) erects

the framework for establishing personal jurisdiction by service of process. Under this framework,

personal jurisdiction may derive either from a state long-arm statute that sets the boundaries of a

state court’s jurisdictional reach or from a federal statute permitting nationwide personal

jurisdiction by service of process.” Motus, 23 F.4th at 121–22.

B. Analysis

1. State-Law Claims

Defendants have waived argument regarding the Massachusetts long-arm statute.

Dkt. 19 at 7 n.2. Accordingly, the Court limits its analysis to comportment with the Due Process

Clause of the Fourteenth Amendment. Motus, 23 F.4th at 122 (“If a defendant limits its

jurisdictional objection to either statutory grounds or constitutional grounds, the court need only

consider those particular grounds.”).

a. QKM

Sunergy has alleged sufficient QKM Massachusetts contacts to constitutionally justify

specific jurisdiction with respect to the state-law claims.

Beginning with the conversion claim, the allegations in Sunergy’s Amended Complaint

relevant to the Court’s analysis are that QKM is registered to do business in Massachusetts,

Compl. ¶ 24, and advertises to its residents there, id. ¶¶ 18, 80; that a former-Sunergy,

current-QKM employee accessed Sunergy’s client-management system without authorization to

download valuable business leads, id. ¶¶ 41–44; that those leads identified potential customers

“throughout the Northeast, including . . . [in] Massachusetts,” id. ¶¶ 32, 57; and that QKM

uploaded at least a portion of those leads onto its client-management system, id. ¶ 34. In an

affidavit accompanying its opposition to Defendants’ motion to dismiss,7 Sunergy connects a few

7 Defendants object to Sunergy’s affidavit and exhibit as “inadmissible hearsay.” Dkt. 31 at 2 (citing Fed. R.

Evid. 803(6)(D)). But the rule against hearsay “applies to the admissibility of evidence, not the sufficiency of

pleadings. It therefore does not serve as a basis to challenge [pleadings] under a Rule 12 motion.” Peek v. Nationstar

additional dots: roughly 30% of the allegedly stolen leads added to QKM’s client-management

system targeted Massachusetts customers, Dkt. 26-1 ¶¶ 4–5; and several of those leads turned into

sales appointments in Massachusetts with Massachusetts customers, id. ¶ 7.8

These facts satisfy the relatedness prong for the conversion claim. Simply, the alleged

conversions arise from and relate to QKM’s solar business in Massachusetts, without which basis,

there would have been no reason to commit the alleged conversions. By fostering a business in

the Commonwealth—advertising to its citizens, servicing those contracts—QKM set the table and

“ma[de] it easier,” Ford Motor, 592 U.S. at 365, for this injury to occur. See also Nowak v. Tak

How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996) (“When a foreign corporation directly targets

residents in an ongoing effort to further a business relationship, and achieves its purpose, it may

not necessarily be unreasonable to subject that corporation to forum jurisdiction when the efforts

lead to a tortious result.”).9 Here, QKM sought to do business in Massachusetts. According to

Sunergy, those efforts led to a tortious result. That “common-sense relationship between

[Sunergy’s] activities and [this] suit[]” is sufficient. See Ford Motor, 592 U.S. at 374 (Alito, J.,

concurring).

For similar reasons, these facts satisfy the purposeful availment prong. QKM was not

dragged into Massachusetts by happenstance or “the unilateral activity of another party.” See

Mortg., LLC, 2017 WL 7039179, at *1 (D.N.H. Sept. 22, 2017). At this stage, Sunergy need only “proffer” the

necessary jurisdictional facts, not prove them. Motus, 23 F.4th at 123.

8 To be clear, the Court does not necessarily treat each of these as a jurisdictional “contact,” per se. Rather,

some of these facts go toward demonstrating the intentionality of QKM’s actions and the reasonableness of

jurisdiction.

9 In Nowak, the First Circuit affirmed a finding of personal jurisdiction against a Hong Kong hotel based on

the hotel’s having solicited Massachusetts customers. 94 F.3d at 712–16. The court agreed that the solicitations “set

in motion a chain of reasonably foreseeable events” that resulted in a guest’s drowning in the hotel’s pool. Id. at 716

(quoting Nowak v. Tak How Inv. Ltd., 899 F. Supp. 25, 32 (D. Mass. 1995)). It would be paradoxical to find that the

indirect inducement of third parties (to book a room and then use the hotel pool) is reasonably foreseeable but that a

“chain” of events made up entirely of one’s own actions is too murky to imagine.

Baskin-Robbins, 825 F.3d at 28. Rather, QKM “deliberately targeted,” id., the Massachusetts

economy, Compl. ¶¶ 18, 24, 80, making it reasonably foreseeable that QKM would be subject to

the power of Massachusetts courts to account for any tortious activity arising therefrom.

Finally, considering the “gestalt” factors on balance, see Astro-Med, 591 F.3d at 10, the

Court finds this exercise of jurisdiction reasonable. Although QKM states that it “has no physical

presence in Massachusetts, and no employees or agents based there,” Dkt. 19 at 14, Sunergy has

proffered facts suggesting a significant QKM physical presence in Massachusetts. See, e.g.,

Compl. ¶¶ 18, 62 (alleging that QKM sells and installs residential solar systems in Massachusetts,

including at least one specific example); Dkt. 26-1 at 6–16 (“Ex. A”) (identifying numerous “In

Person” QKM appointments in Massachusetts). At this stage, the Court must credit Sunergy’s

version of the facts. Motus, 23 F.4th at 123.

Sunergy’s argument regarding the location of witnesses and the associated burden does

carry some weight. See Dkt. 19 at 15. However, that objection ultimately “rings hollow” upon

consideration of Sunergy’s claim under Massachusetts General Law ch. 93A. See Astro-Med, 591

F.3d at 11. It is certainly reasonable to bring that claim in Massachusetts—it necessarily

encompasses a broader scope of Massachusetts contacts, including alleged in-state uses of the

business leads. See, e.g., Compl. ¶ 62. Given that the relevant witnesses must come to

Massachusetts for that trial, the only inefficient alternative would be to have two separate cases in

two separate jurisdictions.

Finally, the Court notes that this is not a case where the forum state has “little legitimate

interest” in the claims. See Ford Motor, 592 U.S. at 372 (Alito, J., concurring) (quoting

Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 256

(2017)). The allegations are that QKM stole information about Massachusetts residents from a

Massachusetts corporation to support QKM’s business efforts in Massachusetts. “Can anyone

seriously argue that requiring [QKM] to litigate [this] case[] in [Massachusetts] would be

fundamentally unfair?” Id.

Accordingly, QKM’s motion to dismiss for lack of personal jurisdiction is DENIED as to

the conversion claim.

The Court would standardly perform further, separate analyses for each of the state-law

claims. See Phillips Exeter, 196 F.3d at 289. However, the facts of the conversion claim

necessarily fold into each of those other counts. See Compl. ¶¶ 91, 94–95, 98–99, 102–03 (basing

liability on “converted” or “stolen” leads). It therefore follows that the motion is also DENIED as

to the other state-law claims.

b. Allen

QKM’s jurisdictional contacts, properly imputed to Allen, constitutionally justify specific

personal jurisdiction.

Although Defendants are correct that Sunergy’s Complaint is largely “silent about Allen’s

contacts with Massachusetts,” Dkt. 19 at 14 n.7, Allen is QKM’s “sole Officer and Director,”

Compl. ¶ 5. Indeed, Defendants confirm that Allen is QKM’s “owner and sole officer.”

Dkt. 19 at 7.10

Where an individual is shown to assert total or near-total control over a corporation, its

contacts may be imputed for jurisdictional purposes.11 Indeed, courts “have disregarded the

corporate form [for jurisdictional purposes] when an individual defendant ‘. . . was the alter ego

10 At oral argument, Defendants further stated that Allen was QKM’s sole employee.

11 This is notwithstanding the “general rule” “that jurisdiction over the individual officers of a corporation

may not be based merely on jurisdiction over the corporation.” Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573

F. Supp. 1106, 1111 (D. Mass. 1983), aff’d, 743 F.2d 947 (1st Cir. 1984).

of the corporation or . . . had an identity of interest with the corporation itself (i.e., the corporation

and the corporation’s president).’” M-R Logistics, LLC v. Riverside Rail, LLC, 537 F. Supp. 2d

269, 280 (D. Mass. 2008) (quoting LaVallee v. Parrot-Ice Drink Prods. of Am., Inc., 193 F. Supp.

2d 296, 301 (D. Mass. 2002) (citing cases)); cf. Malden Transportation, Inc. v. Uber Techs., Inc.,

286 F. Supp. 3d 264, 271–72 (D. Mass. 2017) (finding imputation improper where no facts

supported idea that individual defendants had pervasive control over corporation).12

The facts here support the reasonable inference that there is an “identity of interest,” M-R

Logistics, 537 F. Supp. at 280, between Allen and QKM, such that imputing QKM’s jurisdictional

contacts comports with Due Process.13

Accordingly, Allen’s motion to dismiss for lack of personal jurisdiction is DENIED as to

the conversion claim. As shown above, it therefore follows that the motion is also DENIED as to

the other state-law claims.

12 Notably, this is distinct from courts’ piercing the corporate veil for liability purposes. See generally King

Fung Tsang, The Elephant in the Room: An Empirical Study of Piercing the Corporate Veil in the Jurisdictional

Context, 12 HASTINGS BUS. L.J. 185 (2016). Most clearly, the relevant sources of law are different—liability piercing

for state-law claims is governed by state law, see, e.g., AngioDynamics, Inc. v. Biolitec AG, 910 F. Supp. 2d 346, 356

(D. Mass. 2012), aff’d, 711 F.3d 248 (1st Cir. 2013), whereas the issue here is constitutional, see Daynard v. Ness,

Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 56–57 (1st Cir. 2002). More importantly, the considerations

are different. Under Massachusetts law, piercing the corporate veil is an equitable remedy employable “in rare

particular situations in order to prevent gross inequity.” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass.

614, 620 (1968). By contrast, the baseline question for jurisdictional imputation is simply one of fairness to defendants

under the Due Process Clause. See Daynard, 290 F.3d at 56–57 (“Even if the defendants’ relationship were to fall

slightly outside of the confines of these specific [state-law] doctrines, the question before us is whether a sufficient

relationship exists under the Due Process Clause to permit the exercise of jurisdiction.”).

13 Further, as shown in the following section, Allen is subject to personal jurisdiction for the closely related

racketeering claim. See pp. 12–14, infra. Under the doctrine of pendent personal jurisdiction, the Court could (and

would) alternatively assert personal jurisdiction over Allen for the state-law claims on that basis. See Nahigian v.

Leonard, 233 F. Supp. 2d 151, 159 (D. Mass. 2002); Kovanda v. Heitman LLC, 2024 WL 3888762, at *9 (D. Mass.

Aug. 16, 2024) (citing cases recognizing the common practice).

2. Federal Racketeering Claim

Sunergy may rely on RICO’s nationwide service provision to establish personal

jurisdiction over both Allen and QKM for the racketeering claim.14 This exercise of personal

jurisdiction comports with the Due Process Clause of the Fifth Amendment. Accordingly, the

Court has personal jurisdiction over both Allen and QKM for the racketeering claim.15

a. RICO Nationwide Service of Process

Defendants ask the Court to apply “the majority rule that RICO’s [nationwide service]

provision . . . provide[s] a basis for the exercise of personal jurisdiction” only where there is “a

showing that the Due Process Clause [of the Fourteenth Amendment] is satisfied with respect to

at least one defendant.” Dkt. 19 at 10 n.4. (citing World Depot Corp. v. Onofri, 2017 WL 6003052,

at *5 (D. Mass. Dec. 4, 2017) and Ginsburg v. Dinicola, 2007 WL 1673533, at *4–5 (D. Mass.

June 7, 2007)).

RICO’s nationwide service provision is the subject of tortured controversy. Courts,

including district courts within this Circuit, have disagreed about which section of the statute

governs. Naicom Corp. v. DISH Network Corp., 2024 WL 1363755, at *19–20 (D.P.R.

14 Defendants have never disputed that Sunergy’s claim under RICO confers federal question jurisdiction.

See Dkt. 19 at 19. Rather, Defendants’ argument—now moot considering the Court’s diversity jurisdiction—was that

the Court should decline supplemental jurisdiction if it dismissed that count. Id.

15 As stated above, Defendants waived argument regarding the long-arm statute, explicitly opting to rely

exclusively on “the Constitutional standard.” Dkt. 19 at 7 n.2. As to the state-law claims, for which the Court has

diversity jurisdiction, the long-arm and constitutional standards are largely comparable, see Baskin-Robbins, 825 F.3d

at 34, if not entirely coextensive, see Mojtabai v. Mojtabai, 4 F.4th 77, 85 (1st Cir. 2021). As to the federal

racketeering claim, for which the Court has federal question jurisdiction, however, the two standards are markedly

different. See Swiss Am., 274 F.3d at 618 (explaining that “in federal question cases . . . the constitutional limits of

the court’s personal jurisdiction are fixed . . . not by the Fourteenth Amendment but by the Due Process Clause of the

Fifth Amendment” requiring only “adequate contacts with the United States as a whole, rather than with a particular

state” (internal citation and quotes omitted)). Arguably, Defendants have waived any personal jurisdiction argument

as to the federal claim outside satisfaction of “the Constitutional standard,” Dkt. 19 at 7 n.2, as fixed by the Fifth

Amendment. See Swiss Am., 274 F.3d at 618; Motus, 23 F.4th at 122. Nevertheless, the Court addresses the (federal)

statutory basis for personal jurisdiction as to that claim.

Mar. 29, 2024) (citing cases). Even courts that agree on what language applies may disagree about

how to interpret that language. Id. at *20 (discussing the “ends of justice” requirement).

The Court need not weigh in on this debate because Sunergy’s allegations satisfy

Defendants’ proposed reading of the statute. As shown in the previous section, QKM’s

Massachusetts contacts satisfy the Fourteenth Amendment, as do Allen’s by extension. See pp.

7– 11, supra. The same facts underlie the racketeering claim. See Compl. ¶¶ 107–11. Therefore,

applying Defendants’ proposed reading of the statute, RICO provides a statutory basis for personal

jurisdiction.16

b. The Fifth Amendment

There can be little question that Sunergy has alleged, for each defendant, sufficient relevant

contacts with the United States “as a whole,” Swiss Am., 274 F.3d at 618, to justify jurisdiction

under the Due Process Clause of the Fifth Amendment. Allen is a U.S. (Maine) resident who

therefrom operates QKM, a U.S. (Maine) corporation, as its “owner and sole officer.”

Compl. ¶¶ 5, 9–10; Dkt. 19 at 7. See Nahigian v. Leonard, 233 F. Supp. 2d 151, 158 (D. Mass.

2002) (finding minimum contacts met by U.S. residency alone). Under these circumstances, the

Court also finds such exercise of jurisdiction reasonable. See Swiss Am., 191 F.3d at 36.

16 In a footnote, Defendants ask the Court to apply an additional rule, further limiting Sunergy’s ability to

rely on the RICO statute’s nationwide service provision, based on an (in all fairness, correct) presumption as to the

results of their merits-based challenge under Rule 12(b)(6). Dkt. 19 at 19 n.9 (“If the RICO count is dismissed as to

QKM, Sunergy cannot rely on QKM’s contacts with Massachusetts to manufacture . . . jurisdiction as to any other

defendant.”). This issue is somewhat mooted by the Court’s finding that personal jurisdiction over Allen, himself, is

proper under the Fourteenth Amendment. See pp. 10–11, supra. Nevertheless, even if the Court were to base Allen’s

RICO service of process on QKM’s contacts (as such, rather than by imputation), the Court sees no reason (and

counsel offers none) why it would depart from its normal “jurisdiction-before-merits” order of operation. See Ruhrgas

AG v. Marathon Oil Co., 526 U.S. 574, 575 (1999); Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.

422, 430–31 (2007) (citing Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 118 (1998)); see also Republic of

Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 941–42 (11th Cir. 1997) (“[I]nsofar as an asserted

federal claim is not wholly immaterial or insubstantial, a plaintiff is entitled to take advantage of the federal statute’s

nationwide service of process provision.” (citing IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1055–57

(2d Cir. 1993), cert. denied, 513 U.S. 822 (1994))); Nunes v. Fusion GPS, 531 F. Supp. 3d 993, 1004 (E.D. Va. 2021)

(holding same in RICO context).

Accordingly, Defendants’ motion to dismiss for lack of personal jurisdiction is DENIED

as to both Defendants Allen and QKM for the racketeering claim.

IV. Failure to State a Claim

Defendants next argue that Sunergy has failed to state a claim for racketeering under RICO.

Dkt. 19 at 15– 19. For the reasons stated below, the Court ALLOWS the Rule 12(b)(6) motion as

to QKM but DENIES the motion as to Allen.

A. Legal Standard

Courts analyzing claims under Federal Rule 12(b)(6) must determine whether a plaintiff’s

factual allegations—disregarding all “conclusory” statements—“state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is

not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (internal cites and quotations omitted). “[A] complaint need not pin

plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil

Procedure generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim,

not an exposition of his legal argument.” Skinner v. Switzer, 562 U.S. 521, 530 (2011). Indeed,

on a motion to dismiss, the Court has an independent duty to analyze the facts as presented in the

complaint to determine their sufficiency. Pomerleau v. W. Springfield Pub. Sch., 362 F.3d

143, 145 (1st Cir. 2004).

B. Analysis

To state a claim under RICO, a plaintiff must allege both an “enterprise” and “a pattern of

racketeering activity.” 18 U.S.C. § 1962(c).17 Defendants argue that Sunergy has failed to identify

17 There is threshold lack of clarity concerning Sunergy’s precise cause of action. The Complaint alleges

violations of “Title 18 U.S.C. §1962(a) through (d).” Compl. ¶ 106. But each of those subsections is a distinct cause

of action. See Reynolds v. E. Dyer Dev. Co., 882 F.2d 1249, 1251 (7th Cir. 1989). Insofar as such shotgun pleading

fails to clearly notify Defendants of the claims brought against them, that alone might provide grounds for dismissal.

a proper RICO “enterprise,” apart from QKM, Dkt. 19 at 18–19; that Sunergy’s allegations do not

constitute “racketeering activity” as determined by the statute, id. at 16–17; and that Sunergy has

not alleged any “pattern” of such acts, id. at 17–18.

1. Enterprise

Defendants are correct that QKM cannot be both Sunergy’s “enterprise” and a defendant

for purposes of a racketeering claim asserted under RICO. The text of 18 U.S.C. § 1962(c)

distinguishes between the liable “person” and the underlying “enterprise” with which that liable

person is “associated” or by which it is “employed.” See Cedric Kushner Promotions, Ltd. v. King,

533 U.S. 158, 161 (2001). The enterprise cannot just be “the same ‘person’ referred to by a

different name.” Id. Accordingly, “[i]f the plaintiff chooses to identify the corporation as the

enterprise through which its employees, as persons, conducted the RICO activity, the corporation

is insulated from liability.” In re Lupron Mktg. & Sales Pracs. Litig., 295 F. Supp. 2d 148, 173

(D. Mass. 2003) (quoting Rodriguez v. Banco Central, 777 F. Supp. 1043, 1054 (D.P.R. 1991),

aff’d, 990 F.2d 7 (1st Cir. 1993)).

The issue here is whether Sunergy has alleged a distinct “enterprise” by coining

“Greenworx Enterprise,”18 Compl. ¶ 105, as apart from QKM. The Court finds that it has not.

Sunergy asks the Court to treat the individual defendants and QKM as wholly separate, such that

See id.; Atl. Gypsum Co. v. Lloyds Int’l Corp., 753 F. Supp. 505, 511 n.4 (S.D.N.Y. 1990). In briefing, Sunergy

clarifies that 18 U.S.C. § 1962(c) is the “relevant” part of the statute and analyzes the elements accordingly. See

Dkt. 26 at 6; id. at 9 (analyzing “conduct” element, as distinct to § 1962(c)); id. at 9–11 (analyzing “enterprise”

element, as distinct to § 1962(c)). However, in supplemental briefing, submitted after oral argument, Sunergy

references § 1962(a). Dkt. 37 at 2. This citation is particularly confusing because it introduces a section concerning

what racketeering acts are alleged in the Complaint, id., but the definition of “racketeering activity” is consistent

among RICO’s subsections, see 18 U.S.C. § 1961. For purposes of this motion, the Court construes the Complaint as

asserting a claim under 18 U.S.C. § 1962(c), consistent with Sunergy’s own characterization, Dkt. 26 at 6.

18 Defendants point out that QKM does business as Greenworx, Compl. ¶ 58, and is registered to do business

in that name in at least Maine, id. ¶ 6. Of course, this is not legally dispositive as to their RICO synonymity.

Nevertheless, the asserted fact is striking and apt.

the association among the three of them provides the necessary, overarching enterprise. Dkt. 26

at 10. This ignores the fact that Allen and Underriner are specifically alleged to be agents of QKM.

See Compl. ¶ 5 (identifying Allen as QKM’s “Sole Officer and Director”); id. ¶ 44 (alleging that

Underriner is an employee of QKM). A corporation can act only through its employees, officers,

subsidiaries, and agents. See Cedric, 533 U.S. at 165–66. Accordingly, Sunergy’s enterprise

allegation essentially amounts to that QKM, acting through Allen and Underriner, formed an

enterprise (other than QKM) with Allen and Underriner. This fiction is insufficient to satisfy

RICO’s requirement for distinct entities.

Sunergy relies heavily on Cedric, 533 U.S. 158 (cited in Dkt. 26 at 10), as requiring the

opposite result. However, that case dealt with a different issue—RICO liability against an

individual, a corporate owner-employee. Id. at 160–61, 164–65. In Cedric, the individual’s

corporation was the enterprise, not subject to liability, and the court merely held that the

individual’s employee-owner status did not preclude his being a “person,” “employed by” that

corporation-enterprise, subject individually to liability under the statute. Id. at 163–64. Indeed,

the Cedric Court specifically distinguished and cast doubt upon the applicability of its reasoning

to a construction like Sunergy’s, that “a corporation [is] the ‘person’ and the corporation, together

with all its employees and agents, [are] the ‘enterprise.’” Id. at 164. Following Cedric, courts

have repeatedly recognized that distinction and “reaffirmed that allegations that a corporation is

the ‘person’ and a corporation and its employees are the ‘enterprise’ . . . do not satisfy the

distinctness requirement.” Liberty Mut. Ins. Co. v. Aftermath Servs. LLC, 2023 WL 5435878,

at *3 n.3 (D. Mass. Aug. 23, 2023) (citing four circuit courts that have addressed the issue).

The Court adopts this consensus, particularly in light of the Supreme Court’s guidance that

the enterprise cannot just be one of the liable persons “referred to by a different name.” Cedric,

533 U.S. at 161. To illustrate, one can talk of the nine justices of the Supreme Court as individual

entities. Likewise, one can talk of the Supreme Court as an entity. However, it becomes silly to

talk about the nine justices acting in concert with the Supreme Court (comprised of themselves) as

some type of overarching, super-metaphysical “enterprise.” The more fictive reading urged by

Sunergy would defeat the statute’s apparent purpose in separating liable “persons” from

“enterprises.” See 18 U.S.C. § 1962(c).

Sunergy has not identified a RICO “enterprise,” apart from QKM. Liability under

18 U.S.C. § 1962(c) attaches only to persons, not enterprises. Cedric, 533 U.S. at 161. Therefore,

the motion to dismiss the racketeering claim against QKM is ALLOWED.

2. Predicate Racketeering Acts

Defendants are likewise correct that a racketeering claim under RICO must allege predicate

racketeering acts as set out within and limited by 18 U.S.C. § 1961(1). Dkt. 19 at 16–17. Here,

however, Defendants read the Complaint too narrowly. Sunergy does not track its allegations to

any of the statute’s specifically enumerated offenses. See Compl. ¶¶ 104–13 (alleging “unlawful

acts”). However, this is not fatal to its claim. Sunergy is required only to “state facts sufficient to

portray [] specific instances of racketeering activity.” See Miranda v. Ponce Fed. Bank, 948 F.2d

41, 44 (1st Cir. 1991) (emphases added). It is not required to “pin [its] claim for relief to a precise

legal theory,” Skinner, 562 U.S. at 530, of what underlying criminal violations are constituted.

Accordingly, the Court undertakes the task of “review[ing] the complaint for likely candidates.”

See Molina v. Union Independiente Autentica De La AAA, 555 F. Supp. 2d 284, 296 (D.P.R. 2008).

To that end, Sunergy’s own suggestions are unavailing. See Dkt. 26 at 14–15 (citing

18 U.S.C. §§ 1951 (“Interference with commerce by threats or violence”), 1952 (“Interstate and

foreign travel or transportation in aid of racketeering enterprises”), and 1341 (mail fraud)).

Sunergy alleges no actual, attempted, or conspired-for “force, violence, or fear” necessary to

constitute “robbery or extortion.” Cf. 18 U.S.C. § 1951(a)–(b). Likewise, the “unlawful activity”

implicated by 18 U.S.C. § 1952 does not encompass all illicit acts, as Sunergy suggests, Dkt. 26

at 14–15, but rather only a specific subset, not relevant to this case, involving gambling, contraband

liquor, controlled substances, prostitution, extortion, bribery, arson, and money laundering.

18 U.S.C. § 1952(b). Finally, Sunergy does not allege that the Defendants ever even used the mail,

let alone perpetrated fraud by means of it.19 Cf. 18 U.S.C. § 1341.

Nevertheless, the Court adds two additional candidates which better fit the bill: wire fraud,

18 U.S.C. § 1343, and theft of trade secrets, 18 U.S.C. § 1832. See 18 U.S.C. § 1961(1). Sunergy’s

allegations are sufficient for each. The allegations demonstrating wire fraud moreover satisfy

Rule 9(b)’s heightened pleading standard.

a. Wire Fraud

For purposes of the wire fraud statute, the “unauthorized dissemination or other use” of

“confidential information” can “deprive the owner of its property rights,” such that a dishonest

scheme to deprive constitutes fraud. United States v. Czubinski, 106 F.3d 1069, 1074 (1st Cir.

1997). Here, Sunergy alleges that Underriner, acting through the QKM (formerly “Greenworx”)

enterprise, used the internet, Compl. ¶ 28, to download Sunergy’s confidential business leads

without its authorization by pretending to be a current Sunergy employee, id. ¶¶ 33–34, 41–43,

thus depriving Sunergy of the value of those leads, id. ¶¶ 58–60. These facts clearly satisfy the

basic elements for wire fraud. See Czubinski, 106 F.3d 1069, 1075 (stating that unauthorized

access to confidential information can constitute wire fraud, assuming the requisite intent).

19 In supplemental briefing, Sunergy also attempts to make use of state-law statutes covering fraud or larceny.

Dkt. 37 at 2–3. But violations of state law can only constitute predicate RICO acts where those acts or threats

“involv[e] murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in

a controlled substance or listed chemical.” 18 U.S.C. § 1961(1)(A).

Sounding in fraud, such allegations must satisfy Rule 9(b)’s heightened pleading standard.

Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 42 (1st Cir. 1991). Rule 9(b) requires plaintiffs to “state

with particularity the circumstances constituting fraud.” A party satisfies Rule 9(b) by “plead[ing]

or alleg[ing] the date, time, and place of the alleged fraud or otherwise inject[ing] precision or

some measure of substantiation into a fraud allegation.” Ferring Pharms. Inc. v. Braintree Lab’ys,

Inc., 38 F. Supp. 3d 169, 181 (D. Mass. 2014) (quoting Frederico v. Home Depot, 507 F.3d 188,

200 (3d Cir. 2007)). The adequacy of pleadings under Rule 9(b) is necessarily “case- and

context-specific.” United States ex rel. Chorches for Bankr. Est. of Fabula v. Am. Med. Response,

Inc., 865 F.3d 71, 81 (2d Cir. 2017). The First Circuit has advised courts to “keep in mind” the

purpose of the rule: “to place the defendants on notice and enable them to prepare meaningful

responses,” “to preclude the use of a groundless fraud claim as a pretext to discovering a wrong,”

and “to safeguard defendants from frivolous charges which might damage their reputations.” New

Eng. Data Servs., Inc. v. Becher, 829 F.2d 286, 289, 292 (1st Cir. 1987).

Under these circumstances, Sunergy’s level of detail is sufficient. Sunergy clearly states

the content of the misrepresentations—Underriner allegedly pretended to be someone he is not (a

Sunergy employee identified as “JL”) by entering that person’s username and password.

Compl. ¶¶ 43, 48–49. Sunergy further alleges that this behavior occurred “on an almost daily basis

throughout July and August 2024.” Id. ¶ 47. Cf. Howard v. Cycare Sys., Inc., 128 F.R.D. 159,

163 (D. Mass. 1989) (declining to dismiss claims based on misrepresentations alleged to have

occurred within a three-month span). Finally, Sunergy lays out from where the information was

allegedly downloaded and to where it went. Compl. ¶¶ 31–34. Cf. Foisie v. Worcester Polytechnic

Inst., 967 F.3d 27, 50 (1st Cir. 2020) (satisfying the “where” part of the inquiry by alleging the

movements of fraudulent transfers). While Sunergy has certainly not included every possible

“scrap of detail” imaginable, id., the nature of the allegations and the level of detail provided satisfy

Rule 9(b)’s purpose in preventing Defendants from having to defend against non-specific,

“groundless” claims and “frivolous charges.” Id. at 51.

b. Theft of Trade Secrets

Even if Sunergy’s allegations were insufficient for wire fraud, theft of trade secrets, under

18 U.S.C. § 1832, would otherwise suffice for a predicate act. That statute “criminalizes the

knowing theft of trade secrets.” United States v. Martin, 228 F.3d 1, 11 (1st Cir. 2000). Under

the statute, trade secrets are defined “broadly[] to include both tangible property and intangible

information, as long as the owner ‘has taken reasonable measures to keep such information secret’

and the information ‘derives independent economic value . . . from not being generally known to

. . . the public.’” Id. (quoting 18 U.S.C. § 1839(3)). In passing the statute, Congress “mean[t] to

punish ‘the disgruntled former employee who walks out of his former company with’” that

company’s valuable trade secrets. Id. (quoting United States v. Hsu, 155 F.3d 189, 201 (3d Cir.

1998) (citing H.R. Rep. No. 104–788, at 7)).

Sunergy’s allegations would qualify its business leads as trade secrets. They constitute

“intangible information,” Martin, 228 F.3d at 11, which derive value from their being unknown

and inaccessible to competitors such as QKM, Compl. ¶¶ 29, 58–60. Moreover, Sunergy alleges

that its leads were protected by passwords to traceable accounts, id. ¶¶ 28–29, 48–49, and, to some

degree at least, by contract, id. ¶ 46. Cf. G&L Plumbing, Inc. v. Kibbe, 699 F. Supp. 3d 96, 107

(D. Mass. 2023) (finding trade secret plaintiff reasonably likely to succeed where trade secrets

were protected by password but not by contract). Combined with its conversion allegations, see,

e.g., Compl. ¶¶ 33–37, Sunergy has clearly alleged the existence of trade secrets and theft thereof.

3. Pattern

Now with an understanding of what racketeering acts Sunergy has alleged, the Court can

determine whether Sunergy has pled a “pattern” of such acts. The Court finds that it has. The

RICO statute itself expressly requires at least two racketeering acts within a ten-year period.

18 U.S.C. § 1961(5). The Supreme Court has further elaborated on this requirement, holding that

“the racketeering predicates [must be] related” and must “amount to or pose a threat of continued

criminal activity.” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). In H.J., the

Supreme Court identified two theories by which a plaintiff might establish “continued criminal

activity,” as either “closed-ended” or “open-ended.” Giuliano v. Fulton, 399 F.3d 381, 387 (1st

Cir. 2005) (discussing H.J., 492 U.S. at 242). Under the “closed-ended” approach, continuity is

established through an actual showing of continuous acts, taking place over a “substantial period

of time.” Id. By contrast, an “open-ended” approach “projects into the future,” H.J., 492 U.S.

at 241, by asking whether predicate acts, occurring over a shorter time period, “threatened the

likelihood of[] continued criminal activity.” Id. at 237.

Here, Sunergy has pled substantially more than two acts in ten years. Each alleged use of

the wires to deprive Sunergy of its leads’ value constitutes a separate indictable act. See United

States v. Fermin Castillo, 829 F.2d 1194, 1199 (1st Cir. 1987); United States v. Gordon, 875 F.3d

26, 36 (1st Cir. 2017). Theft of trade secrets further adds to the list.20

20 In the technical context, theft of trade secrets is often treated as a single act, even where the trade secrets

are numerous and stolen in multiple installments. See, e.g., Sylabs, Inc. v. Rose, 2024 WL 2059716, at *7 (N.D. Cal.

May 8, 2024); see also Hardwire, LLC v. Ebaugh, 2021 WL 3809078, at *7 (D. Md. Aug. 26, 2021) (explaining that

only “theft” of trade secrets, rather than the broader category of “misappropriation,” encompassing use and disclosure,

is included among RICO’s predicate acts). But see Skye Orthobiologics, LLC, et al. v. CTM Biomedical, LLC, et al.,

2021 WL 6104163, at *4 (C.D. Cal. Aug. 30, 2021) (relying on ongoing use of trade secrets to establish pattern of

racketeering); p. 22, infra (distinguishing cases concerning technical trade secrets).

These acts, moreover, “threatened the likelihood of[] continued criminal activity.” See

H.J., 492 U.S. at 237.21 Defendants argue that any threat must have concluded by

September 7, 2024, because, by that date, the whole of Sunergy’s leads had already been stolen.

Dkt. 19 at 18 (citing Compl. ¶ 33); Dkt. 31 at 3–4. This is akin to saying that a bank cannot be

robbed again once all its money has been stolen—the bank can get more money and then be robbed

again. The instant case is distinct, for example, from Gen. Elec. Co. v. Iljin Corp., 1993 WL 41752

(D. Mass. Feb. 12, 1993), wherein the defendants were accused of stealing trade secrets describing

a process for manufacturing synthetic diamonds. Id. at *5. There, the court likened the defendants

to a “one time bank robber,” whose various post-robbery activities to move and make use of his

loot fail to establish a pattern of bank robbery (i.e., a threat that the robber is likely to do it again).

Id. By extension to this case, Defendants’ alleged uses (even their ongoing use) of Sunergy’s

business leads do not necessarily establish that Defendants are likely to steal again. However,

unlike in Iljin and other technical trade secret cases, the business leads here are not just parts of a

single valuable thing that might be stolen with completion (e.g., plans for new technology). Rather,

the at-issue business leads are a replenishable resource—Defendants might keep coming back for

more, and the allegations are that they did, Compl. ¶ 47. Thus, the situation here is more akin to

that of a many-time bank robber, whose repeated break-ins establish a pattern of such thefts, and

where the lack of a finite purpose belies the notion of the robberies’ finality.

To the extent Defendants’ argument is that external circumstances have changed, such to

make future thefts impossible or unlikely, the Court rejects the underlying premise that such a

21 In its opposition, Sunergy expressly adopts the “open-ended” approach. Dkt. 26 at 12–13. This makes

sense because, as Defendants point out, the acts alleged here did not occur over what would be deemed a “substantial

period of time.” See Dkt. 19 at 17 (citing Giuliano, 399 F.3d at 387).

change would negate Sunergy’s claim.22 While the First Circuit has not addressed this issue, other

courts have held that “the threat of continuity must be viewed at the time the racketeering activity

occurred.” United States v. Busacca, 936 F.2d 232, 238 (6th Cir. 1991).23 Accordingly, “[t]he

lack of a threat of continuity of racketeering activity cannot be asserted merely by showing a

fortuitous interruption of that activity.” Id. at 238; see also United States v. Cadden, 2016 WL

3167066, at *3 n.7 (D. Mass. June 6, 2016) (quoting Busacca). The Court adopts this reasoning.

To hold otherwise would create a perverse incentive for potential RICO plaintiffs, for example, to

leave corrupt employees at their posts to preserve RICO claims based on the threat they present.

Cf. Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1529 (9th Cir. 1995).

Sunergy has successfully pled a “pattern” of activity for its racketeering claim.

V. Conclusion

For the reasons stated above, Defendants’ motion to dismiss the racketeering claim for

failure to state a claim is ALLOWED as to QKM. Defendants’ motion is otherwise DENIED.

So Ordered.

/s/ Brian E. Murphy

Brian E. Murphy

Dated: March 25, 2025 Judge, United States District Court

22 In its opposition, Sunergy explains that the thefts stopped once it fixed its security breach by changing its

passwords. Dkt. 26 at 14; Dkt. 26-1 ¶¶ 8–9. On a Rule 12(b)(6) motion, the Court cannot and does not consider facts

presented outside the Complaint. Freeman v. Town of Hudson, 714 F.3d 29, 35–36 (1st Cir. 2013). Nevertheless, the

allegation that Defendants were stealing “daily” from Sunergy throughout July and August, Compl. ¶ 47, supports the

inference that, by early September, there was a clear threat of these thefts’ continuing. In the end, whether Defendants

were cut off by Sunergy’s changing its passwords, by a strategic decision from Sunergy to stop relying on leads as a

source of new business, or just because leads were being converted faster than they could be added—the details of

that external “interruption,” United States v. Busacca, 936 F.2d 232, 238 (6th Cir. 1991), do not change the analysis.

23 This reasoning accords with basic jurisprudence—for instance, in assault, the “threat of the use of physical

force” is judged when the frying pan is swung, not after it misses. See United States v. Franklin, 560 F. Supp. 3d 398,

405 (D. Mass. 2021), aff’d, 51 F.4th 391 (1st Cir. 2022).