                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                  September 17, 2007
                            FO R TH E TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    TRIA D CONSULTANTS, IN C.,
    a Colorado corporation,

                Plaintiff-Appellant,

    v.                                                    No. 07-1007
                                               (D.C. No. 06-CV-1771-PSF-M EH )
    JEFFREY A. W IGGINS,                                   (D . Colo.)
    an individual,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         Triad Consultants, Inc., appeals from the district court’s judgment in favor

of Triad’s former employee, defendant Jeffrey W iggins. The district court

dismissed with prejudice Triad’s Computer Fraud and Abuse Act (CFAA) claim,

see 18 U.S.C. § 1030, first under Fed. R. Civ. P. 12(b)(6) and, alternately, under




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Fed. R. Civ. P. 56. The court declined to exercise supplemental jurisdiction over

Triad’s state-law claims and denied its motion for a preliminary injunction. Triad

appeals only the dismissal of the CFA A claim. W e have jurisdiction under

28 U.S.C. § 1291 and affirm the district court’s dismissal of the CFAA claim

under Rule 12(b)(6).

                                    Background

      Because the parties are familiar with the facts, we summarize only the

pertinent allegations of the complaint, which we must take as true for purposes of

deciding this appeal under Rule 12(b)(6). Triad provides computer programming

and information technology services as well as recruiting and placement services

for computer, data processing, and communications professionals. W iggins was

President and Chief O perating Officer of Triad at the time of his discharge. Part

of his responsibilities included creating and safeguarding backup tapes of Triad’s

computer system, which involved removing a backup tape from the premises each

day. Each backup tape contained all of Triad’s electronically stored trade secrets

and proprietary and confidential information.

      On July 28, 2006, Triad terminated W iggins’s employment, escorted him

out of the office, and reminded him that he was obligated to return any Triad

property in his possession. On August 18, a former Triad network administrator,

Jeff M artin, informed the company that W iggins asked him to break into Triad’s

netw ork server and copy or dow nload computer files, which he refused to do. O n

                                         -2-
August 29, M artin informed Triad that W iggins asked him to restore a backup

tape that W iggins had in his possession. Restoration would convert the data into

a usable format. M artin agreed with Triad to accept the tape from W iggins and

return it to Triad. W iggins, however, informed M artin that he found someone

else to restore the tape, one of Triad’s consulting partners. M artin passed this

information along to Triad, which then contacted its consulting partner and

recovered the tape on September 1.

      Triad then filed this action on September 7, 2006. In addition to the

foregoing allegations, Triad also alleged that it believed that other backup tapes

might be missing. In its CFAA claim, Triad asserted that W iggins, knowingly

and with intent to defraud, and without authorization or in excess of his

authorization, accessed Triad’s computers and appropriated confidential and

proprietary business information, and attempted to use the information for his

personal benefit, all of which led to losses of at least $5,000. Triad also asserted

state-law claims and moved for a preliminary injunction. W iggins answered the

complaint and asserted state-law counterclaims relating to compensation he

alleged Triad owed him. He also moved to dismiss the CFAA claim for failure to

state a claim on which relief can be granted and asked the district court to decline

to exercise supplemental jurisdiction over Triad’s state-law claims. Attached to

his motion was a copy of an affidavit dated September 21, 2006, that he had sent

to Triad along with a second backup tape and two other items.

                                          -3-
      The district court held two hearings on the motions, heard testimony, and

received evidence. At the conclusion of the second hearing, the court issued an

oral ruling. As to the CFAA claim, the court first applied Rule 12(b)(6)’s

standard and concluded that the complaint failed to allege two essential elements

of a CFAA violation under 18 U.S.C. § 1030(a)(4): that W iggins exceeded his

authorized access and that he obtained something of value. 1 Regarding access,

the court noted that the complaint alleged that Wiggins was authorized to possess

the backup tapes. As to whether or not W iggins obtained anything of value, the

court noted that the complaint set forth a sequence of facts showing that he never

obtained any information from the tapes.

      In the alternative the court treated the motion to dismiss as one seeking

summary judgment under Rule 56, as it had earlier advised the parties it might do,

and granted the motion as to the CFA A claim on the grounds that Triad had not

incurred any damage or loss by reason of a violation of the statute, see 18 U.S.C.

§ 1030(g), and that in any event Triad’s expenditure of more than $22,000

investigating the matter w as not a loss arising from a course of conduct related to

W iggins’s actions, as required by 18 U.S.C. § 1030(a)(5). The court declined to

1
       The CFA A is a criminal statute, but under the portions of 18 U.S.C. § 1030
relevant to Triad’s CFA A claim, whoever “knowingly and with intent to defraud,
accesses a protected computer without authorization, or exceeds authorized
access, and by means of such conduct furthers the intended fraud and obtains
anything of value” may be liable in a civil action to any person who as a result
suffers “loss to 1 or more persons during any 1-year period . . . aggregating at
least $5,000 in value.” 18 U.S.C. § 1030(a)(4), (a)(5)(B)(I), (g).

                                         -4-
exercise supplemental jurisdiction over Triad’s state-law claims, denied its

motion for a preliminary injunction, and dismissed W iggins’s counterclaims

without prejudice. Triad appealed.

                                     Discussion

      On appeal, Triad takes issue only with the district court’s dismissal of its

CFA A claim. W e affirm on the basis of the district court’s dismissal under

Rule 12(b)(6) and need not reach its alternate dismissal under Rule 56. W e

review de novo a district court’s dismissal under Rule 12(b)(6). See Ridge at Red

Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In doing so,

“we assume the truth of the plaintiff’s well-pleaded factual allegations and view

them in the light most favorable to the plaintiff.” Id. (quotation omitted). W e

must determine “whether the complaint contains ‘enough facts to state a claim to

relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly,

127 S. Ct. 1955, 1974 (2007)). Thus, “the complaint must give the court reason

to believe that [Triad] has a reasonable likelihood of mustering factual support for

[its] claims.” Ridge at Red Hawk, L.L.C., 493 F.3d at 1177.

      W e need not decide whether W iggins “accesse[d] a protected computer

without authorization, or exceed[ed] authorized access,” or furthered a fraudulent

intent by doing so. 18 U.S.C. § 1030(a)(4). Nor need we determine whether the




                                          -5-
backup tapes fall within the statutory definition of a computer. 2 Instead, we will

assume these elements of the claim and focus on the district court’s determination

that Triad failed to allege sufficient facts to show that W iggins “obtain[ed]

anything of value.” Id.

      W e are not persuaded by Triad’s argument that the tapes themselves,

without access to the information they contained, were “anything of value.” Triad

has pointed to no case, and we have found none, where obtaining that sort of

value— the value of a storage medium apart from the value of any information it

contains— was sufficient to state a claim under the CFAA. To the contrary, in

each of the CFA A cases discussed in Triad’s briefs, access to information was

central to the claimed violation— the information was either deleted, used to

compete, or given to a competitor. See Int’l Airport Ctrs., L.L.C. v. Citrin,

440 F.3d 418, 419 (7th Cir. 2006) (employee deleted information prior to

quitting); ViChip Corp. v. Lee, 438 F. Supp. 2d 1087, 1092 (N.D. Cal. 2006)

(same); Nexans Wires S.A. v. Sark-USA, Inc., 319 F. Supp. 2d 468, 469-70, 471,

(S.D.N.Y. 2004) (competitor induced copying and deletion of information by

plaintiff’s former employees, then used copied information); Pac. Aerospace &



2
       The statute defines “computer” as “an electronic, magnetic, optical,
electrochemical, or other high speed data processing device performing logical,
arithmetic, or storage functions, and includes any data storage facility or
comm unications facility directly related to or operating in conjunction with such
device, but such term does not include an automated typewriter or typesetter, a
portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1).

                                         -6-
Elecs., Inc. v. Taylor, 295 F. Supp. 2d 1188, 1193, 1196 (E.D. W ash. 2003)

(former employees used information gleaned from employer’s computer to

compete); Shurgard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc.,

119 F. Supp. 2d 1121, 1123, 1127 (W .D. W ash. 2000) (plaintiff’s former

employee gave information to competitor); C.H. Robinson Worldwide, Inc. v.

Com mand Transp., LLC, No. 05-C-3401, 2005 W L 3077998, at *2-4 (N.D. Ill.

Nov. 16, 2005) (unpublished) (former employees used information to compete).

      Instead, w e find persuasive the reasoning of the First Circuit, that CFAA

“value is relative to one’s needs and objectives.” United States v. Czubinski,

106 F.3d 1069, 1078 (1st Cir. 1997). In Czubinski, the court required the

government to show that the information was valuable to the defendant. Id.; see

also id. at 1078-79 (discussing CFA A’s legislative history supporting view that

the statute was meant to protect information as opposed to mere unauthorized

access). Similarly here, the value of the tapes to W iggins (and to Triad, for that

matter) lay in the information the tapes contained, not in the physical objects

themselves. Because Triad alleged no facts showing that W iggins accessed the

information on either tape, it cannot establish one of the elements of a claim

under § 1030(a)(4), that W iggins obtained “anything of value.” 3 See P.C.

3
        In a footnote to its appellate brief, Triad notes that no discovery had
occurred in this case when the district court issued its oral ruling, and contends
that it has not conceded that W iggins failed to obtain any information from the
tapes. See Aplt. Opening Br. at 16, n.13. But Triad’s reluctance to concede the
                                                                          (continued...)

                                          -7-
Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d

504, 509 (3d Cir. 2005) (affirming denial of preliminary injunctive relief under

CFA A where plaintiffs did not know, had not shown, and could not show “what

information, if any, was taken” by former employee who accessed computer

without authorization).

      Triad’s reliance on United States v. Willis, 476 F.3d 1121 (10th Cir. 2007),

is misplaced. In Willis, decided two months after the district court’s oral ruling in

this case, we addressed an argument by a criminal defendant that the offense with

which he w as charged under a different subsection of the CFAA, § 1030(a)(2)(C),

required proof of an intent to defraud under § 1030(a)(4). W e pointed out several

differences between the elements of the two subsections, among them that (a)(4)

requires only that a person “obtain anything of value,” but that (a)(2)(C) requires

a person to obtain “information.” Id. at 1126. But this distinction was not



3
 (...continued)
point is based on nothing more than pure speculation and runs contrary to
(1) Triad’s allegations regarding the first tape, which showed that Triad recovered
the tape before W iggins could get someone to restore the data; and (2) Triad’s
own testimony at the motions hearing, namely, that it had examined the tapes but
could not show that any information had been accessed, see Aplt. App., Vol. II
at 299. Although we, like the district court, do not consider matters outside the
complaint under Rule 12(b)(6), the district court stated that it could not “find that
discovery is going to change [the] determination as to [Triad’s CFA A claim].”
Id. at 245. Thus, we conclude that the district court properly based its dismissal
on Rule 12(b)(6) without providing an opportunity for discovery or amendment of
the complaint regarding either tape. M oreover, the district court noted that at the
time of its oral ruling, the case had been pending for three months and Triad had
not served any discovery requests on W iggins. Id., Vol. I at 234.

                                         -8-
necessary to our disposition of the case; rather, what mattered for our purposes in

Willis was that the government was not required to prove fraudulent intent in

order to obtain a conviction under subsection (a)(2)(C). Id. And as we explained

above, the backup tapes themselves do not constitute “anything of value” for

purposes of a claim under subsection (a)(4) in this case absent access to the

information they contain.

                                    Conclusion

      W e conclude that Triad failed to allege sufficient facts to state a CFAA

claim that is plausible on its face. See Twombly, 127 S. Ct. at 1969; Ridge at Red

Hawk, L.L.C., 493 F.3d at 1177. The judgment of the district court is

A FFIRME D.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




                                         -9-
