Section A: Median: 14; Mean: 14.7
Section B: Median: 17.5; Mean: 15.6
Acrison, Inc. v.
Anthony Rainone and Brach Eichler LLC
The motion to dismiss is denied.
A motion to dismiss for failure to state a claim tests the legal sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). The court looks at the four corners of the complaint and accepts all well-pleaded, nonconclusory facts as true. The court may take judicial notice of generally known facts and facts established in public records, which are treated as within the four corners of the complaint. A claim is legally insufficient when, taking the nonconclusory facts as true, no legal right has been violated and the plaintiff is not entitled to relief.
The statute of limitations is a longstanding affirmative defense identified in the federal rules. FRCP 8(c). An affirmative defense provides “allegations or statements of new matter, in opposition to former pleading which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect.” The defendant bears the burden of pleading the facts supporting the affirmative defense and the burden of persuasion on those facts at trial. An affirmative defense may provide the reason a pleading fails to state a claim for relief—a different law demonstrating the insufficiency of the claim in the complaint.
Proper Motion
Plaintiff argues that a 12(b)(6) is an improper vehicle for raising a statute of limitations affirmative defense.
A defendant must raise affirmative defenses in responding to a pleading. FRCP 8(c). A defendant typically pleads an affirmative defense in a responsive pleading, such as an Answer to a Complaint, by stating “in short and plain terms” the facts supporting that affirmative defense. FRCP 8(b)(1)(A). The plaintiff may request, and the court grant, an order to file a Reply to an Answer (FRCP 7(a)(7)), responding to the new facts alleged in support of the affirmative defense. The defendant can move for judgment on the pleadings on the affirmative defense, FRCP 12(c), with the court viewing the facts pleaded in the Complaint, Answer, and Reply.
A defendant may follow an alternative approach for “built-in defenses,” where the affirmative defense is built into the complaint because the plaintiff pleads the facts necessary to the affirmative defense. The defendant can move to dismiss for failure to state a claim upon which relief can be granted, FRCP 12(b)(6), filed prior to the Answer. The court views the necessary facts in the complaint, take them as true, and determine whether the affirmative defense defeats the claim. The court also may take judicial notice of facts established in public records, which become part of the four corners of the complaint.
A statute of limitations defense represents the paradigm of a built-in defense. Plaintiff typically pleads the dates of the relevant events giving rise to the claim and the court can take judicial notice of when the current civil action was filed; it can consider those facts to determine whether the claim is timely. Plaintiff here pleads the relevant dates, allowing the court to determine the timeliness of the action on a 12(b)(6) based on the four corners of the complaint.
Motion to Dismiss
The court takes judicial notice, based on the complaint filed as a public record, that plaintiff filed the civil action on February 3, 2024. A § 1030 suit must brought within two years of “the act complained of or the date of the discovery of the damage.” § 1030(g). The “or” makes § 1030(g) disjunctive—an action is timely if plaintiff files within two years of either event. To be timely, therefore, either the violative acts or the discovery of damage must have occurred on or before February 3, 2022.
The complaint shows it is is untimely based on the acts. The complaint identifies two instances in which defendants accessed their computers—May 2020 and September 2021 (¶ 12). Both occurred more than two years before plaintiffs filed suit.
The action may be timely based on discovery of damage. The complaint alleges plaintiff discovered the hacking scheme in November 2022 and suspected unlawful access as early as March 2022. (¶ 14). The complaint does not plead facts showing what damage was discovered on those dates, nor does it plead facts showing that no damage occurred to be discovered. The allegations of the complaint do not show the absence of damage and thus an untimely action.
Defendant suggests the court should grant the motion because plaintiff failed to establish the claim’s timeliness under that part of § 1030(g). But defendant shifts the burden. The statute of limitations is an affirmative defense—the defendant must show, based on the complaint’s allegations, that the action is untimely; the plaintiff need not show that the complaint is timely. The complaint alleges defendants remotely accessed plaintiff’s computer networks on several occasions after the hacking. (¶ 13). That may qualify as damage that plaintiffs discovered in 2022, within the two-year time period and timely under § 1030(g). These facts do not establish that the claim is untimely.
Defendants may find and present new facts showing the absence of damage and thus the inapplicability of § 1030(g)’s date-of-discovery provision. In that case, only the acts provision applies, making the complaint untimely. If so, defendants can plead those facts in support of the affirmative defense in its Answer, then perhaps move for judgment on the pleadings under FRCP 12(c). But in raising limitations on a 12(b)(6), defendants must demonstrate that the facts pleaded in the complaint establish that the complaint was untimely. It has failed to do so.
The motion is denied.
