United States District Court, E.D. Arkansas, Western Division
SYMPHONY DIAGNOSTIC SERVICES NO. 1, LLC PLAINTIFF
RYAN KINGREY;[*] CLEARVIEW DIGITAL IMAGE, LLC; and DOES 1-10 DEFENDANTS
Marshall, Jr. United States District Judge
Ryan Kingrey was employed by Symphony's predecessors,
On-Site and Schryver, he used Mobile Intuition software, a
platform for digital imaging services. Kingrey later began
working for Clearview, Symphony's competitor in the
mobile radiology business. Last year, a picture appeared on
social media of Kingrey sitting next to a Clearview computer
screen showing software that Symphony says closely resembles
Mobile Intuition. Symphony claims that Kingrey, Clearview,
and unnamed others copied Symphony's proprietary software
without authorization for their own benefit. Kingrey and
Clearview move to dismiss. The Court regrets its tardiness in
filed a copyright application on 31 August 2018, a few days
before filing its amended complaint. The U.S. Copyright
Office approved its application on 5 September 2018, the day
after Symphony amended its pleading. No. 11.
Symphony's copyright of Mobile Intuition was effective as
of 31 August 2018. No. 23-1 at 1. Even if its
application hadn't yet been approved, a pending
application would be sufficient to allow Symphony to bring
its copyright infringement claim. As Defendants say, the
authorities are divided, but those that favor allowing a
claim in these circumstances are more persuasive.
Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606
F.3d 612, 619-621 (9th Cir. 2010); Etrailer Corporation
v. Onyx Enterprises International Corporation, 2017 WL
3021496 at *4 (E.D. Mo. 17 July 2017). Symphony has therefore
pleaded sufficient facts for its infringement claim to
Fraud and Abuse Act.
alleges that Kingrey violated the CFAA when he accessed
Mobile Intuition software and later copied it. Symphony has
sufficiently pleaded its claim that Kingrey exceeded his
authorized access to its computers and that it has suffered
resulting loss or damage. But Symphony hasn't pleaded
with particularity its claim under 18 U.S.C. §
1030(a)(4) that Kingrey accessed its software with intent to
defraud, as required under Federal Rule of Civil Procedure
9(b). The Court therefore dismisses the CFAA fraud claim
of Trade Secrets.
maintains that its Mobile Intuition software is a "trade
secret" within the meaning of the Defend Trade Secrets
Act and the Arkansas Trade Secrets Act. The Court agrees.
Symphony isn't required to plead specifics; the company
need not tell its secret now. Symphony says that Mobile
Intuition has value and that it has taken steps to secure it.
The company's misappropriation claims are plausible.
under the Arkansas Trade Secrets Act preempts tort claims.
R.K. Enterprise, LLC v. Pro-Comp Management, Inc.,
356 Ark. 565, 574, 158 S.W.3d 685, 690 (2004). Because
Symphony's ATSA claim survives, its ATSA-related civil
conspiracy claim fails. What about Symphony's claim that
Defendants conspired to violate the CFAA and DTSA, neither of
which has preemptive force? Defendants say that, as an
employee, Kingrey could not have conspired with his employer,
Clearview. The Court agrees. Kingrey could have conspired
with the Does, though. This claim therefore survives pending
identification (or not) of the unnamed defendants.
the Court can tell at this point, Kingrey worked for On-Site
for several years. When Schryver acquired On-Site, Kingrey
and Schryver signed an employment contract. Symphony merged
with Schryver after Kingrey resigned. As the survivor of the
merger, Symphony became a third-party beneficiary of the
employment contract. So Symphony can sue to enforce it.
motion to dismiss, No. 17, is partly granted and
partly denied. Symphony's civil conspiracy claim about
ATSA is dismissed without prejudice. Symphony's CFAA
fraud claim is dismissed without prejudice, with leave to
amend. Any second amended complaint pleading that claim with
specificity is due by 8 February 2019. If the ...