Discussion in 'In The News' started by critical, Aug 10, 2011.
Think some employees have too much time on their hands.
LOL. What'ya saying? They are bored so causing problems with email?
How about copy/paste the article here so I don't have to chase links?
Glad to see you jumpin' in the mix regardless...
Court Says Sending Too Many Emails To Someone Is Computer Hacking
from the you-can't-be-serious dept
Okay, the courts are just getting out of hand when it comes to the Computer Fraud and Abuse Act (CFAA), which is supposed to be used against cases of malicious hacking. Most people would naturally assume that this meant situations in which someone specifically broke into a protected computing system and either copied stuff or destroyed stuff. And yet, because of terrible drafting, the law is broad and vague and courts are regularly stretching what the CFAA covers in dangerous ways.
The latest example, found via Michael Scott is that the Sixth Circuit appeals court has overturned a district court ruling, and is now saying that a labor union can be sued for violating the CFAA because it asked members to email and call an employer many times, in an effort to protest certain actions. Now some of the volume may have hurt the business, but does it reach the level of hacking? What's really troubling is even just the focus on emails:
The e-mails wreaked more havoc: they overloaded Pulte's system, which limits the number of e-mails in an inbox; and this, in turn, stalled normal business operations because Pulte's employees could not access business-related e-mails or send e-mails to customers and vendors
So... because Pulte's IT folks set up their email boxes such that they could only hold a certain number of emails, suddenly this raises to the level of "hacking"? That seems like a stretch, and you can definitely see how such a rule can and likely will be abused. Especially since the court made some very broad statements, including:
[We] conclude that a transmission that weakens a sound computer systemâ€”or, similarly, one that diminishes a plaintiffâ€™s ability to use data or a systemâ€”causes damage.
Broad enough for you? I can see this ruling being cited in all sorts of abusive trials now.
LOL - dude I was just bustin' yer ballz.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 File Name: 11a0200p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________
Nos. 09-2245; 10-1673
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit. No. 09-13638â€”Lawrence P. Zatkoff, District Judge.
Argued: December 9, 2010 Decided and Filed: August 2, 2011
Before: BOGGS and COOK, Circuit Judges; CARR, District Judge.*
ARGUED: John F. Birmingham, Jr., FOLEY & LARDNER LLP, Detroit, Michigan, for Appellant. Terrance G. Reed, LANKFORD & REED, PLLC, Alexandria, Virginia, for Appellees. ON BRIEF: John F. Birmingham, Jr., Larry S. Perlman, Jennifer L. Neumann, FOLEY & LARDNER LLP, Detroit, Michigan, for Appellant. Terrance G. Reed, LANKFORD & REED, PLLC, Alexandria, Virginia, Christopher P. Legghio, LEGGHIO & ISRAEL, Royal Oak, Michigan, for Appellees.
PULTE HOMES, INC., a Michigan Corporation, X- Plaintiff-Appellant,
- v. ,>
LABORERSâ€™ INTERNATIONAL UNION OF - NORTH AMERICA; TERENCE M. Oâ€™SULLIVAN; - RANDY MAYHEW,
Defendants-Appellees. N -
ï¿¼*The Honorable James G. Carr, Senior United States District Judge for the Northern District of Ohio, sitting by designation.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 2 _________________
COOK, Circuit Judge. Plaintiff, an active and successful home builder, sued a national labor union and two of its officers for orchestrating an onslaught on the companyâ€™s phone and e-mail systems. Plaintiff appeals two orders in this combined appeal: (1) the order denying its motion for a preliminary injunction and (2) the order granting Defendantsâ€™ motion to dismiss. We affirm in part and reverse in part.
Pulte Homes, Inc.â€™s (Pulte[â€™s]) complaint stems from an employment dispute. Pulte alleges that in September 2009 it fired a construction crew member, Roberto Baltierra, for misconduct and poor performance. Shortly thereafter, the Laborersâ€™ International Union of North America (LIUNA) began mounting a national corporate campaign against Pulteâ€”using both legal and allegedly illegal tacticsâ€”in order to damage Pulteâ€™s goodwill and relationships with its employees, customers, and vendors.
Just days after Pulte dismissed Baltierra, LIUNA filed an unfair-labor-practice charge with the National Labor Relations Board (NLRB). LIUNA claimed that Pulte actually fired Baltierra because he wore a LIUNA t-shirt to work, and that Pulte also terminated seven other crew members in retaliation for their supporting the union. Pulte maintains that it never terminated any of these seven additional employees.
Not content with its NLRB charge, LIUNA also began using an allegedly illegal strategy: it bombarded Pulteâ€™s sales offices and three of its executives with thousands of phone calls and e-mails. To generate a high volume of calls, LIUNA both hired an auto-dialing service and requested its members to call Pulte. It also encouraged its members, through postings on its website, to â€œfight backâ€ by using LIUNAâ€™s server to send e-mails to specific Pulte executives. Most of the calls and e-mails concerned Pulteâ€™s purported unfair labor practices, though some communications included threats and obscene language.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 3
Yet it was the volume of the communications, and not their content, that injured Pulte. The calls clogged access to Pulteâ€™s voicemail system, prevented its customers from reaching its sales offices and representatives, and even forced one Pulte employee to turn off her business cell phone. The e-mails wreaked more havoc: they overloaded Pulteâ€™s system, which limits the number of e-mails in an inbox; and this, in turn, stalled normal business operations because Pulteâ€™s employees could not access business-related e-mails or send e-mails to customers and vendors.
Four days after LIUNA started its phone and e-mail blitz, Pulteâ€™s general counsel contacted LIUNA. He requested, among other things, that LIUNA stop the attack because it prevented Pulteâ€™s employees from doing their jobs. When the calls and e- mails continued, Pulte filed this suit alleging several state-law torts and violations of the Federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. Â§ 1030, a statute that both criminalizes certain computer-fraud crimes and creates a civil cause of action.
When it filed suit, Pulte simultaneously moved to preliminarily enjoin LIUNAâ€™s phone and e-mail campaign. The district court denied Pulteâ€™s motion, holding that it lacked jurisdiction under the Norris-LaGuardia Act (NLGA) to issue a preliminary injunction because the suit involves a labor dispute and LIUNAâ€™s campaign attempts to publicize that dispute. See 29 U.S.C. Â§Â§ 101, 104. Pulte appealed.
Despite Pulteâ€™s interlocutory appeal, the partiesâ€™ legal battles raged on. The general counsel of the NLRB, acting on LIUNAâ€™s earlier charge, sued Pulte for unfair labor practices. LIUNA then moved to dismiss Pulteâ€™s federal complaint on two grounds: failure to state a claim; and labor preemption under both San Diego Building Trades Council, Millmenâ€™s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959) (â€œGarmon preemptionâ€), and Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976) (â€œMachinists preemptionâ€). Rather than address preemption, the district court (1) held that Pulte failed to state a claim under the CFAA, (2) withheld leave to amend, (3) declined to exercise supplemental jurisdiction over Pulteâ€™s state-law claims, and (4) dismissed the
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 4 entire suit with prejudice. Pulte appealed this decision as well, and we granted its
motion to consolidate the two appeals.
We address the following issues: (A) preemption, (B) the sufficiency of Pulteâ€™s CFAA allegations, (C) Pulteâ€™s request for leave to amend, and (D) its motion for a preliminary injunction.
We tackle first one of LIUNAâ€™s alternative grounds for affirming the district courtâ€™s judgmentâ€”that Garmon preemption bars Pulteâ€™s CFAA claimsâ€”because it questions our subject-matter jurisdiction. See Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 607â€“10 (6th Cir. 2004).
Garmon strips courts of jurisdiction over conduct â€œarguably subjectâ€ to section 7 or section 8 of the National Labor Relations Act (NLRA), 29 U.S.C. Â§Â§ 157â€“58, and requires them to â€œdefer to the exclusive competence of the National Labor Relations Board.â€ Trollinger, 370 F.3d at 609 (internal quotation marks and citation omitted). Sections 7 and 8 of the NLRA together protect certain labor practices and prohibit others, thus forcing courts to relinquish jurisdiction to the NLRB when a suit involves an â€œarguably protectedâ€ or â€œarguably prohibitedâ€ labor practice. Id. at 608â€“09.
An exception to this general ruleâ€”the independent-federal-remedy exceptionâ€”nevertheless allows federal courts to â€œdecide labor law questions that emerge as collateral issues in suits brought under independent federal remedies.â€ Id. at 609 (internal quotation marks and citation omitted). Our decision in Trollinger aptly illustrates the exception and demonstrates why it saves Pulteâ€™s CFAA claimsâ€”even if, as LIUNA contends, section 8(c) of the NLRA arguably protects its phone and e-mail campaign. See 29 U.S.C. Â§ 158(c) (prohibiting injunctions against noncoercive labor speech).
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 5
In Trollinger, the plaintiffs brought civil RICO claims against their former employer and alleged, as the RICO predicate, that the employer depressed hourly wages by knowingly hiring undocumented illegal immigrants in violation of section 274 of the Immigration and Nationality Act (INA). 370 F.3d at 606â€“07, 611. The defendant- employer argued that Garmon deprived the district court of jurisdiction because the plaintiffsâ€™ wage-related RICO claims were arguably subject to the NLRA. Id. at 607, 611. We held, however, that the independent-federal-remedy exception preserved the district courtâ€™s jurisdiction because the plaintiffs could prove that the employer violated section 274 of the INA without ever having to establish a violation of the NLRA. Id. at 611.
The exception compels the same result here. The CFAA provisions upon which Pulte relies prohibit knowingly transmitting information that damages a computer, 18 U.S.C. Â§ 1030(a)(5)(A), and intentionally accessing a computer without authorization, id. Â§ 1030(a)(5)(B), (C). Like section 274 of the INA, these provisions forbid conduct wholly unrelated to the labor laws, thus allowing Pulte to proveâ€”without implicating the NLRAâ€”that LIUNAâ€™s calls and e-mails violated the CFAA. See Trollinger, 370 F.3d at 611. And neither the prospect of LIUNA defending itself here by arguing that its campaign qualifies as protected activity nor the possibility of either party filing prohibited-conduct charges with the NLRBâ€”which LIUNA already has doneâ€”removes potential NLRA issues from the collateral-issue category. See id. As a result, Garmon preemption does not preclude Pulteâ€™s CFAA claims.
LIUNA also asks us to affirm the dismissal of Pulteâ€™s CFAA claims under the Machinists preemption doctrine, which forbids both states and the NLRB from â€œregulat[ing] conduct that Congress intended be unregulated because left to be controlled by the free play of economic forces.â€ Chamber of Commerce of the U.S. v. Brown, 554 U.S. 60, 65 (2008) (internal quotation marks and citation omitted). But, as Pulte observes, LIUNA cites not a single case where a court applied the Machinists preemption doctrine to bar a federal rather than a state claim. And we see no reason to create such a precedent now.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 6 B.
Having satisfied ourselves of subject-matter jurisdiction, we next address the dismissal of Pulteâ€™s CFAA claims under Federal Rule of Civil Procedure 12(b)(6). The district court held that Pulte failed to state either (1) a â€œtransmissionâ€ claim, see 18 U.S.C. Â§ 1030(a)(5)(A), or (2) an â€œaccessâ€ claim, see id. Â§ 1030(a)(5)(B), (C). We review its decision de novo, Louisville/Jefferson Cnty. Metro Govâ€™t v. Hotels.com, L.P., 590 F.3d 381, 384 (6th Cir. 2009), asking whether the complaint â€œcontain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,â€ Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citation omitted).
To state a transmission claim, a plaintiff must allege that the defendant â€œknowingly cause[d] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause[d] damage without authorization, to a protected computer.â€ 18 U.S.C. Â§ 1030(a)(5)(A). We assume, because it is not disputed, that LIUNAâ€™s communications constitute â€œtransmissions,â€ see id., and that Pulteâ€™s phone and e-mail systems qualify as â€œprotected computers,â€ see id. Â§ 1030(e)(2). According to LIUNA and the district court, however, Pulte fails to allege that LIUNA â€œintentionally caused damage.â€ We address damages and intentâ€”in that orderâ€”and conclude that Pulte properly alleges both.
Pulte describes the effects of LIUNAâ€™s conduct at length in its complaint. Summarized, the calls impeded access to voicemail, prevented Pulteâ€™s customers from reaching its sales offices and representatives, and forced an employee to turn off her cell phone. And LIUNAâ€™s e-mailsâ€”which overloaded Pulteâ€™s systemâ€”curtailed normal business operations because Pulteâ€™s employees could not access and respond to e-mails. The parties dispute whether this constitutes damage under the CFAA.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 7
To understand â€œdamage,â€ we consult both the statutory text and ordinary usage. Under the CFAA, â€œany impairment to the integrity or availability of data, a program, a system, or informationâ€ qualifies as â€œdamage.â€ Id. Â§ 1030(e)(8). Because the statute includes no definition for three key termsâ€”â€œimpairment,â€ â€œintegrity,â€ and â€œavailabilityâ€â€”we look to the ordinary meanings of these words. See United States v. Plavcak, 411 F.3d 655, 660â€“61 (6th Cir. 2005). â€œImpairmentâ€ means a â€œdeteriorationâ€ or an â€œinjurious lessening or weakening.â€ 7 Oxford English Dictionary 696 (2d ed. 1989) [hereinafter OED]. The definition of â€œintegrityâ€ includes an â€œuncorrupted condition,â€ an â€œoriginal perfect state,â€ and â€œsoundness.â€ Id. at 1066. And â€œavailabilityâ€ is the â€œcapability of being employed or made use of.â€ 1 OED, supra, at 812. Applying these ordinary usages, we conclude that a transmission that weakens a sound computer systemâ€”or, similarly, one that diminishes a plaintiffâ€™s ability to use data or a systemâ€”causes damage.
LIUNAâ€™s barrage of calls and e-mails allegedly did just that. At a minimum, according to the complaintâ€™s well-pled allegations, the transmissions diminished Pulteâ€™s ability to use its systems and data because they prevented Pulte from receiving at least some calls and accessing or sending at least some e-mails. Cf. Czech v. Wall St. on Demand, Inc., 674 F. Supp. 2d 1102, 1117â€“18 (D. Minn. 2009) (dismissing a CFAA transmission claim because the plaintiff failed to allege that the defendantâ€™s text messages stopped her from receiving or sending any calls or text messages).
The diminished-ability concept that we endorse here is not novel: several district courts have already adopted it. See, e.g., Condux Intâ€™l, Inc. v. Haugum, Civil No. 08- 4824 ADM/JSM, 2008 WL 5244818, at *8 (D. Minn. Dec. 15, 2008) (â€œThe â€˜damageâ€™ contemplated by subsection (a)(5)(A)(i) requires some diminution in the completeness or useability of data or information on a computer system.â€ (internal quotation marks and citation omitted)); Becker v. Toca, Civil Action No. 07-7202, 2008 WL 4443050, at *5 (E.D. La. Sept. 26, 2008) (â€œError messages and slow processing constitute impairments to the integrity or availability of data.â€); Am. Online, Inc. v. Natâ€™l Health Care Disc., Inc., 121 F. Supp. 2d 1255, 1274 (N.D. Iowa 2000) (â€œ[W]hen a large volume
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 8
of [unsolicited bulk e-mail] causes slowdowns or diminishes the capacity of AOL to serve its customers, an â€˜impairmentâ€™ has occurred to the â€˜availabilityâ€™ of AOLâ€™s â€˜system.â€™â€).
Moreover, our interpretation comports with two decisions from sister circuits. The Third Circuit sustained a transmission conviction where the defendant â€œadmitted that in using the direct e-mailing method and sending thousands of e-mails to one inbox, the targeted inbox would flood with e-mails and thus impair the userâ€™s ability to access his other â€˜goodâ€™ e-mails.â€ United States v. Carlson, 209 F. Appâ€™x 181, 185 (3d Cir. 2006). And the Seventh Circuit, in United States v. Mitra, upheld the defendantâ€™s transmission conviction because he impaired the availability of an emergency communication system when â€œ[d]ata that [he] sent interfered with the way the computer allocated communications to the other 19 [radio] channels and stopped the flow of information among public-safety officers.â€ 405 F.3d 492, 494 (7th Cir. 2005). That these decisions involve criminal prosecutions is irrelevant. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (â€œ[W]e must interpret [a] statute consistently, whether we encounter its application in a criminal or noncriminal context . . . .â€). In both cases, the government proved beyond a reasonable doubt that the transmissions impaired the availability of the computer equipment; here, Pulte adequately alleges that result.
Because Pulte alleges that the transmissions diminished its ability to send and receive calls and e-mails, it accordingly alleges an impairment to the integrity or availability of its data and systemsâ€”i.e., statutory damage.
Damage alone, however, is not enough for a transmission claim. A defendant must also cause that damage with the requisite intent.
The district court found Pulteâ€™s intent allegations deficient: it dismissed Pulteâ€™s claim because Pulte failed to allege that LIUNA knew its calls and e-mails would harm Pulteâ€™s computer systems. See Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, No. 09- 13638, 2010 WL 1923814, at *3 (E.D. Mich. May 12, 2010) (â€œPlaintiff did not inform
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 9
Defendants that their conduct was harmful to any of Plaintiffâ€™s computer systems.â€). In other words, Pulte made no allegation that LIUNA fully grasped the actual consequences of its e-mail campaign. This is too high a standard.
The transmission subsection prohibits causing damage â€œintentionally.â€ 18 U.S.C. Â§ 1030(a)(5)(A). We turn, again, to ordinary usage because the CFAA does not define the term. To act â€œintentionallyâ€ commonly means to act â€œon purposeâ€â€”i.e., with a purpose or objective. 7 OED, supra, at 1080. The Third Circuit, for example, sustained a CFAA transmission conviction where the jury instructions provided that â€œ[a] person acts intentionally when what happens was the defendantâ€™s conscious objective.â€ Carlson, 209 F. Appâ€™x at 184â€“85 (internal quotation marks and citation omitted). Thus, to satisfy its pleading burden, Pulte must allege that LIUNA acted with the conscious purpose of causing damage (in a statutory sense) to Pulteâ€™s computer systemâ€”a standard that does not require perfect knowledge.
Pulte met its burden. The following allegations illustrate LIUNAâ€™s objective to cause damage: (1) LIUNA instructed its members to send thousands of e-mails to three specific Pulte executives; (2) many of these e-mails came from LIUNAâ€™s server; (3) LIUNA encouraged its members to â€œfight backâ€ after Pulte terminated several employees; (4) LIUNA used an auto-dialing service to generate a high volume of calls; and (5) some of the messages included threats and obscenity. And although Pulte appears to use an idiosyncratic e-mail system, it is plausible LIUNA understood the likely effects of its actionsâ€”that sending transmissions at such an incredible volume would slow down Pulteâ€™s computer operations. LIUNAâ€™s rhetoric of â€œfighting back,â€ in particular, suggests that such a slow-down was at least one of its objectives. The complaint thus sufficiently alleges that LIUNAâ€”motivated by its anger about Pulteâ€™s labor practicesâ€”intended to hurt Pulteâ€™s business by damaging its computer systems.
LIUNA attemptsâ€”but failsâ€”to justify its conduct. Though it maintains that the calls and e-mails are â€œfully consistent with an ongoing, lawful, organizing campaignâ€ through which it â€œis attempting [only] to organize Pulte employees,â€ LIUNA offers no explanation of how targeting Pulteâ€™s executives and sales officesâ€”rather than employees
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 10
eligible for recruitmentâ€”advances its campaign. And an equally, if not more, plausible explanation is that LIUNA intended to disrupt Pulteâ€™s business by bogging down its computer systems. Rule 12(b)(6) demands nothing more. See Iqbal, 129 S. Ct. at 1949.
In sum, because Pulteâ€™s complaint alleges that LIUNA â€œintentionally caused damage,â€ we reinstate its CFAA transmission claim. See 18 U.S.C. Â§ 1030(a)(5)(A). We also reverse the dismissal of its state-law claims and remand to the district court with instructions to determine whether it may exercise jurisdiction over those claims. See Mills v. City of Barbourville, 389 F.3d 568, 581 (6th Cir. 2004) (reversing the dismissal of state-law claims for lack of jurisdiction and remanding to district court to determine whether it should exercise supplemental jurisdiction).
Though Pulteâ€™s transmission claim passes Rule 12(b)(6), we agree with the district court that its access claim does not.
Our path to this conclusion, however, departs from the district courtâ€™s. See Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002) (â€œ[W]e are free to affirm . . . on any basis supported by the record.â€). To state an access claim, a plaintiff must allege, among other things, that the defendant â€œintentionally accesse[d] a protected computer without authorization.â€ 18 U.S.C. Â§ 1030(a)(5)(B), (C). The district court held that Pulte failed to allege â€œaccess.â€ We need not decide whether LIUNAâ€™s calls and e-mails accessed Pulteâ€™s computers because, even if they did, Pulte does not allege access â€œwithout authorization.â€
Because Congress left the interpretation of â€œwithout authorizationâ€ to the courts, we again start with ordinary usage. The plain meaning of â€œauthorizationâ€ is â€œ[t]he conferment of legality; . . . sanction.â€ 1 OED, supra, at 798. Commonly understood, then, a defendant who accesses a computer â€œwithout authorizationâ€ does so without sanction or permission. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132â€“33 (9th Cir. 2009).
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 11
In addition, comparing the phrase â€œwithout authorizationâ€ to another, somewhat similar phrase in the CFAA further informs the proper interpretation. The CFAA criminalizes both accessing a computer â€œwithout authorizationâ€ and â€œexceeding authorized accessâ€ to a computer. E.g., 18 U.S.C. Â§ 1030(a)(1). Despite some similarities in phrasing, we must, if possible, give meaning to both prohibitions. See Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir. 2004) (â€œWe avoid interpretations of a statute which would render portions of it superfluous.â€); cf. Intâ€™l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418, 420 (7th Cir. 2006) (observing that â€œ[t]he difference . . . is paper thinâ€). We can.
Unlike the phrase â€œwithout authorization,â€ the CFAA helpfully defines â€œexceeds authorized accessâ€ as â€œaccess[ing] a computer with authorization and . . . us[ing] such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.â€ 18 U.S.C. Â§ 1030(e)(6). Under this definition, â€œan individual who is authorized to use a computer for certain purposes but goes beyond those limitations . . . has â€˜exceed[ed] authorized access.â€™â€ LVRC Holdings LLC, 581 F.3d at 1133 (second alteration in original) (emphasis added). In contrast, â€œa person who uses a computer â€˜without authorizationâ€™ has no rights, limited or otherwise, to access the computer in question.â€ Id. (emphasis added); accord Lockheed Martin Corp. v. Speed, No. 6:05-CV- 1580-ORL-31, 2006 WL 2683058, at *5 (M.D. Fla. Aug. 1, 2006) (observing that individuals â€œwithout authorizationâ€ have â€œno permission to access whatsoeverâ€).
We ask, then, whether LIUNA had any right to call Pulteâ€™s offices and e-mail its executives. It didâ€”and LIUNAâ€™s methods of communication demonstrate why.
LIUNA used unprotected public communications systems, which defeats Pulteâ€™s allegation that LIUNA accessed its computers â€œwithout authorization.â€ Pulte allows all members of the public to contact its offices and executives: it does not allege, for example, that LIUNA, or anyone else, needs a password or code to call or e-mail its business. Rather, like an unprotected website, Pulteâ€™s phone and e-mail systems â€œ[were] open to the public, so [LIUNA] was authorized to use [them].â€ See Citrin, 440 F.3d at 420. And though Pulte complains of the number, frequency, and content of the
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 12
communications, it does not even allege that one or several calls or e-mails would have been unauthorized. Its complaint thus amountsâ€”at mostâ€”to an allegation that LIUNA exceeded its authorized access.
Because Pulte does not allege that LIUNA possessed no right to contact Pulteâ€™s offices and its executives, it fails to satisfy one of the elementsâ€”access â€œwithout authorizationâ€â€”of its claim. See 18 U.S.C. Â§ 1030(a)(5)(B), (C).
Pulte next asserts that the district court should have granted it leave to amend under Federal Rule of Civil Procedure 15(a). We have two options for our standard of review: (1) abuse of discretion, the general standard when a court denies a motion for leave to amend; or (2) de novo, the standard when a court denies leave to amend â€œbecause the amended pleading would not withstand a motion to dismiss.â€ PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004), abrogated on other grounds by Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323â€“25 (2011), as recognized in Frank v. Dana Corp., â€” F.3d â€”, No. 09â€“4233, 2011 WL 202717, at *5 (6th Cir. May 25, 2011). Here, rather than filing a motion for leave to amend, Pulte buried its request in a footnote in its brief opposing the motion to dismiss; and the district court, in its order dismissing the complaint with prejudice, did not explain why it withheld leave to amend. The lesser standard, abuse of discretion, therefore applies. See id.
We cannot say that the district court abused its discretion in withholding leave to amend. Pulte had already amended its complaint once; it then failed to file a proper motion justifying another amendment; and it never moved to alter or amend the district courtâ€™s judgment. Given this series of events, the district court acted within its discretion, and Pulte may not amend its access claim on remand. See id. at 699.
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 13 D.
Finally, Pulte faults the district court for concluding that it lacked jurisdiction to issue a preliminary injunction because LIUNAâ€™s calls and e-mails constitute protected publicity and assembly under subsections 4(e) and (f) of the NLGA. See 29 U.S.C. Â§ 104(e), (f).
When a party appeals the denial of a preliminary injunction, we ask whether the district court abused its discretionâ€”by, for example, applying an incorrect legal standard, misapplying the correct one, or relying on clearly erroneous facts. Allied Sys. Ltd. v. Teamsters Natâ€™l Auto. Transporters Indus. Negotiating Comm., Local Union 327, 179 F.3d 982, 985â€“86 (6th Cir. 1999). We therefore review the district courtâ€™s legal conclusions de novo and its factual determinations for clear error. Grand Trunk W. R.R. Inc. v. Bhd. of Maint. of Way Emps. Div., 497 F.3d 568, 571 (6th Cir. 2007). We agree with the district court that it lacked jurisdiction to issue the injunction, but our rationale differs: we rely instead on section 8 of the NLGA. See 29 U.S.C. Â§ 108.
If a lawsuit involves or grows out of a â€œlabor dispute,â€ the NLGA deprives a court of jurisdiction to issue a preliminary injunction â€œexcept in a strict conformity with the provisionsâ€ of the NLGA. Id. Â§ 101. Among the NLGAâ€™s rigid rules are several procedural safeguards. See id. Â§Â§ 107â€“09; see also Lukens Steel Co. v. United Steelworkers, 989 F.2d 668, 676 (3d Cir. 1993) (describing Â§Â§ 107â€“09 as â€œprocedural requirementsâ€). For example, before a preliminary injunction issues, the district court must hold an evidentiary hearing and make findings of fact, and the plaintiff must post a bond. 29 U.S.C. Â§ 107. Because the district court here held that Pulteâ€™s complaint springs from a labor disputeâ€”a holding that Pulte refrains from challenging on appealâ€”the NLGAâ€™s procedural requirements apply. Pulte, however, failed to comply with one of these safeguards: section 8 of the NLGA.
Section 8 prohibits a court from granting an injunction â€œto any complainant . . . who has failed to make every reasonable effort to settle [a labor] dispute . . . by negotiation.â€ Id. Â§ 108. Where the litigants agree on the complainantâ€™s attempts to settle the dispute, â€œit is solely a legal question whether those efforts constitute â€˜every
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 14
reasonable effort.â€™â€ Grand Trunk, 497 F.3d at 572. Pulteâ€™s settlement effortsâ€”devoid of any attempt to confer with LIUNAâ€™s attorneys before filing suitâ€”fail the every- reasonable-effort test and thus prevent resort to injunctive remedies.
The events leading up to this suit moved swiftly. Pulte fired Baltierra on September 4, prompting the September 9 onset of LIUNAâ€™s communications deluge. Four days laterâ€”on Sunday, September 13â€”Pulteâ€™s general counsel faxed and overnighted a cease-and-desist letter to LIUNA, in which Pulte demanded that LIUNA stop encouraging the calls and e-mails and that it â€œuse every means available to [it] to put an end to this activity.â€ The letter cautioned that Pulte intended to seek injunctive relief unless LIUNA â€œpromptly provide[d] . . . adequate assurances that this conduct will cease immediately.â€ When the calls and e-mails did not stop by the morning of Tuesday, September 15, Pulte filed this suit.
Pulte made little to no effort to settle. It transmitted the cease-and-desist letter on a Sunday, did not specify a time to respond, did not offer LIUNA an opportunity to negotiate, and filed suit less than forty-eight hours after sending the letter without even confirming that LIUNA received the letter. This is not â€œevery reasonable effortâ€ to settle the dispute.
Rather than defend the reasonableness of its settlement efforts, Pulte asks us to absolve it of its section 8 obligations, offering two justifications for doing so. First, LIUNA is not the bargaining representative for Pulteâ€™s employees; and second, LIUNAâ€™s calls and e-mails included violent threats and destroyed Pulteâ€™s computer system. Neither of these arguments excuses non-compliance with section 8.
As to its bargaining-representative argument, Pulte misconstrues the only case upon which it relies, Grace Co. v. Williams, 20 F. Supp. 263 (W.D. Mo. 1937). Grace Co. did not hold, as Pulte contends, â€œthat an employer has no obligation under [section 8 of the NLGA] to negotiate with a union that is not the bargaining representative of its employees.â€ Rather, Grace Co. carved out an exception to the NLGAâ€™s every- reasonable-effort requirement where requiring an employer to negotiate with a non- representative union would force the employer to violate its duties under the Wagner
Nos. 09-2245; 10-1673 Pulte Homes, Inc. v. Laborersâ€™ Intâ€™l Union, et al. Page 15
Actâ€”a situation not present here. See id. at 267; see also San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233, 1238 (9th Cir. 1997) (applying section 8 to a picketing dispute between a hospital and a union even though the union did not represent the hospitalâ€™s employees). Pulte, overlooking the rationale for the bargaining-representative exception, unfairly broadens Grace Co.â€™s holding.
Pulteâ€™s violence-and-destruction argument also misses the mark. Citing two decisions in which courts enjoined brawls between members of competing unions, Pulte contends that section 8 does not apply in cases involving violence, threats of violence, or destruction of property. See Cater Const. Co. v. Nischwitz, 111 F.2d 971, 977 (7th Cir. 1940); J. B. Michael & Co. v. Iron Workers Local No. 782, 173 F. Supp. 319, 326 (W.D. Ky. 1959). But Pulte does not allege that LIUNA committed any violent acts. Cf. J. B. Michael & Co., 173 F. Supp. at 323 (finding that defendants threw rocks, used pick handles and iron bars as clubs, broke automobile windshields, brandished pistols, and inflicted a head injury requiring twenty stitches). And while some callers cautioned Pulteâ€™s employees that they would â€œrot in hell,â€ and other callers threatened to â€œcome downâ€ to Pulteâ€™s offices and â€œfind out who [the employee] isâ€ and â€œwhat [his or her] problem is,â€ these unidentified callers did not threaten violence. Cf. Cater Const. Co., 111 F.2d at 974â€“75 (issuing injunction where unionâ€™s representative told employer that â€œthere would be a fightâ€ and â€œa lot of heads bustedâ€ if employer did not hire unionâ€™s members (internal quotation marks omitted)). What remains is an allegation of nonviolent, albeit harassing, business disruption: that LIUNAâ€™s members clogged Pulteâ€™s communications systems simply by clicking a mouse and dialing a phone number. Yet Pulte cites no cases in which business disruption, unaccompanied by violence, relieves a complainant of its pre-injunction obligation to negotiate.
Pulte proffers one final, unpersuasive reason for reversing the district court. It argues that the NLGA does not foreclose injunctive relief under the CFAAâ€”a more specific, later-enacted statute. The CFAA, however, regulates computer crimes rather than labor activity. And the NLGAâ€™s â€œban on federal injunctions is not liftedâ€ simply because a unionâ€™s nonviolent conduct violates â€œsome other nonlabor statute.â€ Crowe &
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Assocs., Inc. v. Bricklayers & Masons Union Local No. 2 (In re Crowe & Assocs., Inc.), 713 F.2d 211, 214 (6th Cir. 1983) (internal quotation marks and citation omitted); see also Triangle Constr. & Maint. Corp. v. Our V. I. Labor Union, 425 F.3d 938, 944â€“45 (11th Cir. 2005) (â€œ[T]he [NLGA] does not prevent courts from issuing injunctions to enforce positive duties imposed by other federal labor statutes.â€ (emphasis added) (internal quotation marks and citation omitted)). Regardless of the CFAAâ€™s specificity and date of enactment, its injunctive provisions afford Pulte no refuge.
Because Pulte failed to comply with section 8 of the NLGA, the district court lacked jurisdiction to issue the injunctionâ€”even if LIUNAâ€™s calls and e-mails fall short of protected publicity and assembly, see 29 U.S.C. Â§ 104(e), (f), and even if Pulte satisfied the section 7 evidentiary requirements, see id. Â§ 107.
For these reasons, we affirm in part and reverse in part the order dismissing Pulteâ€™s complaint, affirm the denial of the preliminary injunction, and remand for proceedings consistent with this opinion.
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