United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion to Dismiss
Defendant's Counterclaims (Dkt. #29). The Court, having
considered the relevant pleadings, finds that Defendant's
motion should be denied.
Sidney Beck worked as a project specialist for Defendant
Access eForms, LP, from February 11, 2010 until she resigned,
effective November 14, 2016. Defendant is in the business of
providing electronic form management software designed, in
part, to eliminate the need for paper forms. In connection
with her employment, Plaintiff executed a Proprietary
Information and Inventions Agreement (“Proprietary
Information Agreement”) and also signed an Electronic
Data Policy Acknowledgement Form (“Electronic Data
Form”), which addressed the email, voicemail and
Internet policies of Access eForms.
December 29, 2016, Plaintiff initiated this action against
Defendant for alleged violations of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201 et
seq. Plaintiff alleges that she routinely worked in
excess of forty hours per week and was not compensated as
required under the FLSA. On September 28, Defendant filed its
Amended Answer, Counterclaims and Affirmative Defenses (Dkt.
#21). Defendant asserts counterclaims against
Plaintiff for breach of contract, conversion of property, and
violations of the Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030, harmful access to a computer under Texas Civil
Practice and Remedies Code § 143.001, and
misappropriation of trade secrets. On October 26, 2017,
Plaintiff filed this motion to dismiss Defendant's (Dkt.
#29). On November 9, 2017, Defendant filed its response
Court has an independent duty, at any level of the
proceedings, to determine whether it properly has subject
matter jurisdiction over a case. Ruhgras AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999); McDonal v. Abbott
Labs., 408 F.3d 177, 82 n.5 (5th Cir. 2005)
(“federal court may raise subject matter jurisdiction
sua sponte”). Therefore, in addition to Plaintiff's
12(b)(6) motion to dismiss, the Court will determine whether
it has subject matter jurisdiction over Defendant's
counterclaims under 12(b)(1).
a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the 12(b)(1)
jurisdictional attack before addressing any attack on the
merits.” Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001).
Motion to Dismiss for Lack of Subject Matter
federal court has subject matter jurisdiction over civil
cases “arising under the Constitution, laws, or
treaties of the United States, ” or over civil cases in
which the amount in controversy exceeds $75, 000, exclusive
of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331,
1332. Federal courts are courts of limited jurisdiction and
must have statutory or constitutional power to adjudicate a
claim. Home Builders Ass'n of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent
jurisdiction conferred by statute or the Constitution,
federal courts lack the power to adjudicate claims and must
dismiss an action if subject matter jurisdiction is lacking.
Stockman v. Federal Election Comm'n, 138 F.3d
144, 151 (5th Cir. 1998) (citation omitted).
“[S]ubject-matter jurisdiction cannot be created by
waiver or consent.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 919 (5th Cir. 2001).
Court has subject matter jurisdiction over those cases
arising under federal law. U.S. Const. Art. III § 2, cl.
1; 28 U.S.C. § 1331. A case arises under federal law if
the complaint establishes that federal law creates the cause
of action or the plaintiff's right to relief necessarily
depends on the resolution of a substantial question of
federal law. Empire Healthchoice Assur., Inc. v.
McVeigh, 547 U.S. 677, 689-90 (2006).
motion under Federal Rule of Civil Procedure 12(b)(1) should
be granted only if it appears beyond doubt that Plaintiff
cannot prove a plausible set of facts in support of its
claim. Lane v. Halliburton, 529 F.3d 548, 557 (5th
Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556-57 (2007)). The Court may find a plausible set
of facts by considering: “(1) the complaint alone; (2)
the complaint supplemented by the undisputed facts evidenced
in the record; or (3) the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts.” Lane, 529 F.3d at 557 (quoting
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996)). The Court will accept all well-pleaded
allegations in the complaint as true, and construe those
allegations in a light most favorable to Plaintiff.
Truman v. United States, 26 F.3d 592, 594 (5th Cir.
1994). The party asserting jurisdiction bears the burden of
proof for a 12(b)(1) motion to dismiss. Ramming, 281
F.3d at 161. “A case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the
case.” CleanCOALition v. TXU Power, 536 F.3d
469, 473 (5th Cir. 2008) (quoting Home Builders, 143
F.3d at 1010).
Motion to Dismiss for Failure to State a Claim
Federal Rules of Civil Procedure require that each claim in a
complaint include “a short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The claims must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state