Gulf South Communications, Inc. v. WOOF Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

GULF SOUTH COMMUNICATIONS, )

INC., CLAY HOLLADAY, and BRYAN )

HOLLADAY, )

)

Plaintiffs, )

)

v. ) CIV. ACT. NO. 1:21-cv-40-ECM

) (WO)

WOOF INC. and BRYANT CORBITT, )

)

Defendants. )

MEMORANDUM OPINION and ORDER

Now pending before the Court are partial motions to dismiss filed by Defendant

WOOF, Inc. (“WOOF”) and Defendant Bryant Corbitt (“Corbitt”)(collectively “the

Defendants”). (Docs. 13 & 15).

On December 18, 2020, Plaintiffs Gulf South Communications, Clay Holladay, and

Bryan Holladay (collectively “the Plaintiffs”), filed a complaint in the Circuit Court of

Houston County, Alabama. The case was removed pursuant to 28 U.S.C. §§ 1441 and

1331, on the basis of federal-question jurisdiction. No motion to remand was filed. The

Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367.

On February 5, 2021, the Plaintiffs filed an amended complaint which brings claims

for violation of the federal Electronic Communications Privacy Act (count I), violation of

the federal Computer Fraud and Abuse Act (count II), violation of the federal Defend Trade

Secrets Act (count III), violation of the Alabama Trade Secrets Act (count IV), intentional

interference with contract (count V), violation of the Alabama Digital Crime Act (count

VI), violation of the Alabama Identity Theft Act (count VII), criminal impersonation (count

VIII), commercial misappropriation/invasion of privacy (count IX), conversion (count X),

trespass to chattels (count XI), unjust enrichment (count XII), negligent or wanton

supervision (count XIII), and injunctive relief (count XIV). (Doc. 8).

WOOF’s motion to dismiss seeks dismissal of counts I, II, V, VI, VIII—XII, and

XIV, and Corbitt’s motion seeks dismissal of counts I, II, V, VI, VIII—XII.

Upon consideration of the amended complaint, motions, and the briefs of the parties,

and for the reasons that follow, the motions to dismiss are due to be GRANTED in part

and DENIED in part.

II. LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)).

“Determining whether a complaint states a plausible claim for relief [is] ... a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility

standard requires “more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U. S. at 678. Conclusory allegations that are merely “conceivable” and fail to

rise “above the speculative level” are insufficient to meet the plausibility standard.

Twombly, 550 U. S. at 555, 570. This pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Id.

III. FACTS

Gulf South operates WKMX radio. Clay Holladay is the President of Gulf South

and Bryan Holladay is the station manager for WKMX. In June 2014, Gulf South entered

into a license agreement with Creative Radio Services, LLC (“Creative”). Pursuant to this

contract, Creative licensed to Gulf South the exclusive right for WKMX radio to use

Creative’s licensed preparation materials. (Doc. 8 ¶9). The Creative licensed preparation

materials include unique daily content such as trending stories. At the time this license

agreement was entered into, Corbitt was employed by Gulf South as an on-air radio

personability on WKMX. (Id. ¶9).

In April 2018, Corbitt resigned his employment with Gulf South and went to work

for WOOF, a competing radio station. The amended complaint alleges that without

permission from Gulf South, Corbitt created and began using the email address

wkmxradio@yahoo.com and registered that email address with Creative. Corbitt held

himself out as Clay Holladay, the President of Gulf South. (Id. ¶¶ 17-19).

Corbitt accessed the Creative licensed preparation materials 876 times from April

26, 2018 through September 21, 2020. He is alleged to have obtained a competitive

advantage for himself and WOOF in order to increase ratings and advertising revenue.

Corbitt’s usual time slot on the air at WOOF is 7:00 p.m. to 12:00 a.m. The amended

complaint alleges that he accessed the licensed preparation material at or around 1:00 a.m.,

“contemporaneously with it being posted or uploaded by Creative on its website.” (Id.

¶25). Corbitt continues to be employed at WOOF.

IV. DISCUSSION

WOOF seeks dismissal of ten of the fourteen claims brought by Gulf South, Clay

Holladay, and Bryan Holladay. Corbitt seeks the dismissal of nine claims.

A. Count I

Count I asserts claims pursuant to both 18 U.S.C. § 2511 and 18 U.S.C. § 2701. The

Plaintiffs allege that the Defendants intercepted a communication in violation of § 2511

and accessed the material on Creative’s website in violation of § 2701.

WOOF seeks dismissal only of the claim for violation of § 2511 (doc. 14 at 2, n.2),

which Corbitt joins (doc. 15). The Defendants move to dismiss this aspect of the claim in

count I on the ground that the facts of the amended complaint are sufficient only to allege

access, and not interception, because Corbitt is alleged to have obtained material from

Creative’s website, not to have intercepted a transmission from Creative.

The Plaintiffs respond that the amended complaint sufficiently alleges that Corbitt

intercepted electronic communications because it alleges that he logged on at 1:00 a.m.,

contemporaneously with the material being transmitted by Creative to the website. The

Plaintiffs’ position is that it is premature to determine in the context of a motion to dismiss

whether there was a contemporaneous interception.

“Interception” is defined by the statute as “the aural or other acquisition of the

contents of any wire, electronic, or oral communication through the use of any electronic,

mechanical, or other device.” 18 U.S.C. § 2510(4). Some courts have interpreted this

provision to mean that there is an interception if information is received within a second of

transmission. See, e.g., United States v. Szymuszkiewicz, 622 F.3d 701, 706 (7th Cir. 2010).

The Eleventh Circuit has addressed the “interception” issue, albeit in a criminal

case, in United States v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003). The court explained

that the definition encompasses only a “contemporaneous interception—i.e., an acquisition

during ‘flight . . . .’” Steiger, 318 F.3d at 1048-49. The court cited favorably analysis that

“viewing a private website by way of the Internet without authorization did not constitute

an interception of electronic communications in violation of the Wiretap Act because such

unauthorized viewing merely gained access to stored electronic communications.” Id. at

1050. The court also cited to scholarly analysis describing “a narrow window during which

an E-mail interception may occur—the seconds or milli-seconds before which a newly

composed message is saved to any temporary location following a send command.” Id.

Steiger has been read in a case in this district as adopting “a construction of

‘interception’ requiring that electronic communications must be acquired

contemporaneously with their transmission.” Bruce v. McDonald, 2014 WL 931522, at *6

(M.D. Ala. 2014). The court explained that logging into and acquiring messages from

another’s email account does not necessarily happen contemporaneously with their

transmission, but although the evidence had not been presented in that case, if a plaintiff

could establish that a defendant “had actually acquired even one message

contemporaneously with its transmission,” the plaintiff might be able to show interception.

Id.

In this case, because the amended complaint alleges that Corbitt accessed

information contemporaneously with it being posted or uploaded, (doc. 8 ¶25), the Court

finds that it alleges enough to state a plausible claim for purposes of a motion to dismiss.

Upon factual development on the question of whether Corbitt accessed the information

within milli-seconds of it being transmitted, the transmission issue can again be raised by

appropriate motion for summary judgment. The motions to dismiss are, therefore, due to

be DENIED as to this claim.

B. Count II

The claim in count II of the amended complaint is a claim for violation of the

Computer Fraud and Abuse Act (“CFAA”), which allows for recovery in a civil case if a

plaintiff can show that the defendant acted (1) knowingly and with intent to defraud, and

(2) accessed a protected computer without authorization, or exceeded authorized access

and “by means of such conduct further[ed] the intended fraud and obtain[ed] anything of

value” so that the “loss” aggregated is at least $5,000 in value. See 18 U.S.C. §§ 1030(g),

1030(a)(4), 1030(c)(4)(A)(i)(I). The CFAA defines a “loss” as “any reasonable cost to any

victim, including the cost of responding to an offense, conducting a damage assessment,

and restoring the data, program, system or information to its condition prior to the offense,

and any revenue lost, cost incurred, or other consequential damages incurred because of

interruption of service.” 18 U.S.C. § 1030(e)(11).

The Defendants move to dismiss this claim on the basis that the Plaintiffs have not

pleaded the type of harm contemplated by the statute because the Plaintiffs are third parties

with no ownership interest in the computer at issue. The Defendants cite the court to a

decision from another district court within this circuit which determined that “loss” does

not include lost revenue from the possible misappropriation of information. See Daughtery

v. Atlanta Crane & Automated Handling, Inc., 2012 WL 13024455, *8 (N.D. Ala. 2012).

The Plaintiffs do not, however, argue that their loss was lost revenue. Instead, they

have pleaded that when Gulf South learned that WOOF using Creative licensed preparation

material, Gulf South contacted Creative who, through investigation, determined that

Corbitt was accessing the Creative website. (Doc. 8 ¶27). The Plaintiffs further allege that

“Gulf South has incurred in excess of $5,000 as a victim of Defendants’ conduct, including

attorneys’ fees, investigation costs, and enforcement costs . . . .” (Doc. 8 ¶77). The

Plaintiffs contend that the Defendants’ interpretation of the statute is unreasonably

restrictive and that the amended complaint alleges that Gulf South incurred costs in excess

of $5,000.

Courts examining the issue of loss under the CFAA have determined that

investigative expenses incurred “in fees paid to forensic experts to uncover the breadth of

. . . unauthorized transfers” is a compensable loss. See Frisco Med. Ctr., L.L.P. v. Bledsoe,

147 F. Supp. 3d 646, 660 (E.D. Tex. 2015). This interpretation of loss has been applied in

this district. D&J Optical, Inc. v. Wallace, 2015 WL 1474146, at *5 (M.D. Ala.

2015)(“Plaintiff alleges that the defendants' unauthorized activity forced it to incur costs

of more than $5000 in damage assessment and remedial measures. The court concludes

that the plaintiff's allegations are plausible and adequately state a claim for relief under the

CFAA.”); see also Health First, Inc. v. Hynes, 628 F. App'x 723, 723-34 (11th Cir.

2016)(affirming decision where the “the bulk of the damages were for ‘investigative and

compliance’ expenses, including legal fees for in-house and outside counsel, that Health

First incurred as a result of Hynes's unlawful activity.”).

Because the amended complaint alleges in paragraph seventy-seven that Gulf South

investigated the loss and incurred expenses from that investigation, this Court concludes

that a plausible claim has been pleaded, and the motions to dismiss are due to be DENIED

as to this claim.

C. Count VI

In count VI of the amended complaint, the Plaintiffs bring a claim for violation of

the Alabama Digital Crime Act. The Defendants contend that the claim is due to be

dismissed because ALA. CODE 13A-8-112 does not contain a private right of action. They

urge this Court to disregard, as non-binding and distinguishable on their facts, district court

decisions which have found that there is a right of civil action.

District court decisions have interpreted Alabama law to provide, “civil liability for

acts which constitute a crime . . . ‘if the acts complained of violate the legal rights of the

plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action

for which relief may be granted.’” Ages Grp., L.P. v. Raytheon Aircraft Co., 22 F. Supp.

2d 1310, 1320 (M.D. Ala. 1998)(quoting Smitherman v. McCafferty, 622 So. 2d 322 (Ala.

1993)). The district court decisions rely on decisions of the Alabama Supreme Court which

stand for the proposition that “for every criminal violation that injures the person or

property of another, there is a concomitant civil remedy.” Lollar v. Poe, 622 So. 2d 902,

904 (Ala. 1993).

The Defendants point out that Lollar and Smitherman were decided more than two

decades ago, and involved different facts. However, “the highest court of the state is the

final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted

by federal courts as defining state law unless it has later given clear and persuasive

indication that its pronouncement will be modified, limited or restricted.” West v. Am. Tel.

& Tel. Co., 311 U.S. 223, 236 (1940). Furthermore, the proposition the cases stand for is

a broad one, not dependent upon the facts of the claims.

Applying Alabama case-law, another judge in this district found a plausible claim

for violation of the Alabama Digital Crime Act. D&J Optical, Inc., 2015 WL 1474146, at

*8; see also Sunil Gupta, M.D., LLC v. Franklin, 2017 WL 5196392, at *9 (S.D. Ala. Nov.

9, 2017) (finding a plausible claim for relief under the Alabama Digital Crimes Act, “as

the Complaint alleges violations of the legal rights of the Plaintiff.”). This Court is

persuaded by the non-binding cases applying binding Alabama law and finds that the

motion to dismiss is due to be DENIED as to the Alabama Digital Crime Act claim.

D. Count VIII

The amended complaint brings a claim for criminal impersonation, pursuant to ALA.

CODE §13A-9-18. The Defendants move to dismiss this claim, arguing that that statute

does not provide for a civil action. As with the Alabama Digital Crime Act claim in count

VI, this Court finds that the Plaintiffs have alleged actions which constitute a crime which

violated the rights of the Plaintiffs, and, therefore, the motion to dismiss is due to be

DENIED. See Lollar, 622 So. 2d at 904.

E. Counts V, IX, X, XI, and XII

Although the claims in counts V, IX, X, XI, and XII for intentional interference with

contract, commercial misappropriation/invasion of privacy, conversion, trespass to

chattels, and unjust enrichment, respectively, are different legal theories, the primary

ground articulated by the Defendants for dismissal is the same; namely, that the claims are

preempted by the Alabama Trade Secrets Act (“ATSA”). The Defendants contend that

the ATSA preempts these common law claims because the alleged conduct is based on the

same facts underlying the ATSA claim. See ALA. CODE § 8-27-6. The Court will first

address the scope of preemption under the ATSA, and then will turn to the arguments raised

with respect to particular common law claims.

1. Scope of Preemption Under State Law

The ATSA protects a trade secret from disclosure or unauthorized use by another,

and a person is liable for misappropriation if:

(1) That person discovered the trade secret by improper

means; (2) That person's disclosure or use constitutes a

breach of confidence reposed in that person by the other;

(3) That person learned the trade secret from a third person,

and knew or should have known that (i) the information was

a trade secret and (ii) that the trade secret had been

appropriated under circumstances which violate the

provisions of (1) or (2), above; or (4) That person learned

the information and knew or should have known that it was

a trade secret and that its disclosure was made to that person

by mistake.

ALA. CODE § 8–27–3.

The statutory section regarding the ATSA's effect on other law is as follows:

“[t]hose provisions of this chapter that are inconsistent with the common law of trade

secrets supersede the common law; otherwise, this chapter should be construed to be

consistent with the common law of trade secrets.” Id. § 8–27–6. The official comment to

this section provides, “[t]he act is intended both to codify and to modify the common law

of trade secrets in Alabama. Where the act codifies, pre-existing sources may shed light on

the meaning of the statute. There is no intention, however, to supersede other areas of the

law.” Id. Comment, § 8–27–6.

In Allied Supply Co. v. Brown, 585 So. 2d 33, 37 (Ala. 1991), a claim for breach of

fiduciary duty was brought based on a defendant’s misappropriation of confidential

documents. The Alabama Supreme Court reversed the trial court’s ruling that the plaintiff

could pursue both statutory and common law theories of recovery for this

“misappropriation of ‘trade secrets’ or confidential documents.” Id. The plaintiff was

limited to the statutory claim. Id. The Court noted that committee’s comments to the Act

indicate that “the legislature intended for the Act to replace common law tort remedies for

the misappropriation of trade secrets . . . .” Id.

The Plaintiffs argue that under Allied Supply Co., the ATSA does not preempt any

of their tort claims for intentional interference with contract, commercial

misappropriation/invasion of privacy, conversion, trespass to chattels, and unjust

enrichment, because those are not brought specifically as “misappropriation” claims, and

the ATSA only preempts misappropriation claims. For this argument, they rely on Acoustic

Artistry, LLC v. Peavey Elecs. Corp., 2013 WL 12250381, at *8 (N.D Ala. 2013)(Kallon,

J.). The judge who decided Acoustic Artistry, however, has since taken the opposite view

of preemption by the ATSA. See Killough v. Monkress, 2021 WL 1192990, at *8 (N.D.

Ala. Mar. 30, 2021)(Kallon, J.).

Allied Supply Co., the binding authority interpreting the statute, held that the ATSA

preemption provision applied even though the claim in that case was for a breach of

fiduciary duty, not a claim specifically brought as a “misappropriation of a trade secret”

claim. 585 So. 2d at 37. Consequently, decisions within each of the three federal district

courts in Alabama applying Allied Supply Co. have determined that the Alabama Supreme

Court established the principle that “any common law tort claim that, whatever its name,

provides a theory of recovery for the misappropriation of a trade secret is preempted by

ATSA.” Arkema Inc. v. Emerson Process Mgmt., LLLP, 413 F. Supp. 3d 1191, 1194 (S.D.

Ala. 2019); Madison Oslin, Inc. v. Interstate Res., Inc., 2012 WL 4730877, *9 (N.D. Ala.

2012); Bell Aerospace Serv., Inc. v. U.S. Aero Servs., Inc., 690 F. Supp. 2d 1267, 1276-

1277 (M.D. Ala. 2010). The language of Allied Supply implies that the ATSA preempts

not only common law claims “specifically alleging the misappropriation of trade secrets

but also other causes of action based on the same underlying facts . . . .” Madison Oslin,

Inc., 2012 WL 4730877, at *6. For example, a misappropriation of a trade secret

accomplished by a conversion is still a misappropriation of a trade secret and must be

redressed under ATSA, not under the common law theory of conversion. See Arkema, 413

F. Supp. 3d at 1194; see also Southern Field Maint. & Fabrication LLC v. Killough, 2019

WL 360515, at *5 (M.D. Ala. 2019); Killough, 2021 WL 1192990, at *8 & n.13.

Therefore, this Court is persuaded that the preemptive reach of the ATSA is greater than

just common law “misappropriation” of trade secrets claims.

The Plaintiffs argue that even if claims other than a “misappropriation” claim can

be preempted by the ATSA, they have alleged facts in support of their claims which remove

their claims for invasion of privacy and interference with contract from the preemptive

scope of the ATSA, because elements of those claims are not the same as the ATSA claim.

Specifically, the Plaintiffs argue that the invasion of privacy claim they have brought is for

the appropriation of a likeness for someone’s benefit, therefore, it is not preempted as a

misappropriation of a trade secret. The Plaintiffs’ theory is that the Defendants have

wrongfully appropriated the names and identities of Clay Holladay, Bryan Holladay, and

the WKMX station letters licensed to Gulf South for the purpose of gaining an economic

benefit. (Doc. 18 at 26). Similarly, they argue that the interference with contract claim is

distinct from misappropriation of a trade secret because they have claimed that the

Defendants interfered with the license agreement by preventing Gulf South from obtaining

the benefit of exclusivity which it paid for under the contract with Creative. (Doc. 18 at

26).

As noted, district courts in this circuit have interpreted the ATSA and Allied Supply

to mean that if a plaintiff pleads common law causes of action “based on the same

underlying facts as those giving rise to their claim under the ATSA . . . such causes of

action are preempted.” Madison Oslin, 2012 WL 4730877, at *9. In a decision in another

district, the court cited to decisions applying a state statute similar to that of Alabama. See

Parker v. Petrovics, 2020 WL 3972761, at *11 (N.D. Ala. 2020) (citing SDC v. Fin. Inc.

v. Bremer, 2019 WL 4393543, *11 (M.D. Tenn. 2019) and Hauck Mfg. Co. v. Astec Indus.,

Inc., 375 F. Supp. 2d 649, 658 (E.D. Tenn. 2004)). Those courts apply a “same proof”

standard. Hauck Mfg. Co., 375 F. Supp. 2d at 658. Under that standard, which appears to

just be another way of analyzing whether the claims arise from the “same underlying facts,”

“if proof of a non-[trade secrets act] claim would also simultaneously establish a claim for

misappropriation of trade secrets, it is preempted irrespective of whatever surplus elements

or proof were necessary to establish it.” Id.

This Court is persuaded that the scope of preemption under the ATSA extends to

any common law claim which provides a theory of recovery arising from the same facts as

a statutory claim for misappropriating a trade secret, even if the facts required to prove the

common law claim are not identical to a trade secret claim. That is, merely because an

intentional interference with contract claim or an invasion of privacy claim may require

additional elements of proof, those claims are not removed from the scope of ATSA

preemption. The issue is whether the tort claim is an attempt to recover for wrongful

appropriation of the same commercially valuable item as the commercially valuable trade

secret.1 Arkema, 413 F. Supp. 3d at 1195; see also Bell Aerospace Servs., 690 F. Supp. 2d

1 Trade secret is defined as

(1) Trade secret. A “trade secret” is information that

a. Is used or intended for use in a trade or business;

b. Is included or embodied in a formula, pattern, compilation, computer

software, drawing, device, method, technique, or process;

c. Is not publicly known and is not generally known in the trade or business

of the person asserting that it is a trade secret;

d. Cannot be readily ascertained or derived from publicly available

information;

e. Is the subject of efforts that are reasonable under the circumstances to

maintain its secrecy; and

at 1277 (finding that Bell Aerospace may not pursue its breach-of-fiduciary-duty claim

under a theory that is “essentially the same” as its ATSA claim).

The Plaintiffs also attempt to distinguish their claims from the ATSA claim by

arguing that they have a protectible interest in the Creative licensed preparation material

even if it is not a trade secret. There is some recognition in the case law that an item with

value independent of the trade secret could support a separation claim, for example, of

conversion. See S. Field Maint. & Fabrication LLC, 2019 WL 360515, at *5 (addressing a

claim involving a tangible object and pointing out that the “distinction drawn by some

courts is whether the converted property has value independent of the value it accrues as a

trade secret.”). The amended complaint alleges, however, that the Creative license

preparation material includes news, trending stories, comedy bits, artist soundbites,

recorded callers. (Doc. 8 ¶11). The facts alleged, therefore, do not support that there is a

misappropriation of an item which is alleged to have value separate from the trade secret.

Cf. Arkema, 413 F. Supp. 3d at 1196 & n.4 (reasoning that it is “not easy to imagine” how

the plaintiffs could contend that electronic files are their property without relying on the

business information within the files). Accordingly, the Plaintiffs’ common law claims are

preempted because, as pleaded, the claims arise from interference with WOOF’s right to

the Creative licensed preparation material, and so they will succeed or fail depending on

f. Has significant economic value.

ALA. CODE § 8-27-2.

proof that the Defendants improperly obtained information the Plaintiffs also contend is a

trade secret.

The Plaintiffs advance an additional argument with respect to their unjust

enrichment claim; namely, that it seeks an equitable remedy and, therefore, in the

Plaintiffs’ view, is not preempted. As the Defendants point out, in applying a Georgia

statute which is similar to the ATSA, the Eleventh Circuit found that the unjust enrichment

claim was preempted. See Penalty Kick Management, Ltd. v. Coca Cola Company, 318

F.3d 1284, 1297 (11th Cir. 2003). A district court in this circuit has reached the same

conclusion under the ATSA. See Madison Oslin, Inc., 2012 WL 4730877, at *9. This

Court is persuaded, therefore, that the unjust enrichment claim is preempted by the ATSA,

as are the other remedy claims.

2. Claims Pleaded in the Alternative

The Plaintiffs argue that even if claims for conversion and trespass to chattels would

be preempted by the ASTA with proof of a trade secret, the trade secret proof may fail, so

the Plaintiffs ought to be able to plead these claims in the alternative. (Doc. 18 at 29). They

rely on the Eleventh Circuit’s decision in Penalty Kick to support this argument, but there,

the Eleventh Circuit did not hold that claims could be pleaded in the alternative under

Georgia law. 318 F.3d at 1297. Instead, the court explained that an argument that the

claims arising out of facts that were not a trade secret did not apply in that case, because

the facts rose to the level of a trade secret. Id.

The ATSA “is modeled after and closely parallels the Uniform Trade Secrets Act.”

Parker, 2020 WL 3972761, at *11 & n.9. “[D]etermining whether the Uniform Trade

Secrets Act (which gave the ATSA life) preempts common law causes of action is not

dependent on whether the ‘misappropriated information’ constitutes a trade secret.” Id. at

*12. Allowing a claim to proceed when the ATSA claim failed would defeat the purpose

of the ATSA to supersede common law inconsistent with the statute. Id. at *11. Courts

reaching this conclusion reason that a plaintiff cannot use a general tort claim to revive a

claim which would not be cognizable under the trade secret statute. Id. at *12 (quotation

and citation omitted). Therefore, it “is a legal non sequitur to suggest general tort causes

may be employed to protect legal rights which otherwise do not exist. . . . Moreover, such

an approach would be wholly inconsistent with the . . . . goals of promoting uniformity and

predictability . . . .” Id. (quotation and citation omitted).

This Court is persuaded that if the ATSA does not provide a remedy because the

information at issue does not rise to the level of a trade secret, then the preemptive scope

of the ATSA, which displaces common law inconsistent with the ATSA, ALA. CODE § 8–

27–6, will not allow a conversion or trespass to chattels claim arising from the same facts.

Accordingly, those claims cannot be pleaded in the alternative.

In short, the motion to dismiss is due to be GRANTED as to the claims in counts V,

IX, X, XI, and XII because they are preempted by the ATSA.

F. Count XIV

Defendant WOOF seeks dismissal of this count on the ground that injunctive relief

cannot be provided by WOOF because the amended complaint alleges that Corbitt engaged

in the wrongful acts as an individual, and WOOF is not engaged in any ongoing conduct

which could be enjoined.

The Plaintiffs respond that WOOF has not moved to dismiss several claims and

other claims are also due to proceed, so it would be premature to dismiss a claim for

injunctive relief.

The amended complaint alleges that Corbitt is an employee of WOOF and that the

actions he took were while acting as an agent and employee of WOOF. (Doc. 8 ¶20). The

amended complaint also alleges that the Defendants continue to own or have access to the

wkmxradio@yahoo.com email address and have the ability to continue holding themselves

out as representatives of WKMX. (Id. ¶34). Based on these allegations, and the fact that

there are claims proceeding for which the Plaintiffs may ultimately receive relief, the Court

agrees that it would be premature to dismiss the request for injunctive relief at this time.

The motion to dismiss is due to be DENIED as to the request for injunctive relief.

V. CONCLUSION

For the reasons discussed, it is ORDERED that the motions to dismiss (docs. 13 &

15) are GRANTED in part and DENIED in part as follows:

1. The motions to dismiss are GRANTED as to counts V, IX, X, XI, and XII and

of the amended complaint and those claims are dismissed as against both

Defendants.

2. The motions to dismiss are DENIED in all other respects.

Done this 11th day of June, 2021.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE