MEMORANDUM OPINION
Presently pending and ready for resolution in this action are a motion to dismiss by Defendants Bonnie Werner-Masuda and the Union of Independent Flight Attendants (“UIFA”) for lack of subject matter jurisdiction and failure to state a claim (paper 33), 1 and a motion to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim by Defendant McCormick Advisory Group (“MAG”) (paper 42). Also pending are several motions by Plaintiff International Association of Machinists and Aerospace Workers (“IAM”): two motions to seal certain exhibits (papers 52, 83), a motion to amend its complaint (paper 59), a motion to strike (paper 79), and a motion to file a surreply (paper 82). Magistrate Judge Charles B. Day recently resolved a motion for sanctions (paper 86), which is now the subject of objections (papers 94 and 100), spawning yet another motion, Plaintiff IAM’s motion for leave to file a response (paper 96). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, *483 Defendant MAG’s motion to dismiss for lack of subject matter jurisdiction will be denied, 2 but the motion to dismiss the federal claims for failure to state a claim will be granted. Because the court will dismiss the only two federal claims in this action and will decline to exercise supplemental jurisdiction pursuant to § 1367(c)(3), the case will be dismissed and many of the remaining motions will be denied as moot. The court will grant the motions to seal, and resolve the sanctions issues. The other motions will be denied without prejudice as moot.
1. Background
A. Factual Background
The following facts have been alleged by Plaintiff IAM. IAM is an international labor organization that represents approximately 700,000 employees in various industries. It currently is the union representative of approximately 10,300 Continental and ExpressJet Airlines flight attendants. It maintains its headquarters, or “Grand Lodge,” in Upper Marlboro, Maryland. From April 2003 to May 2004, Defendant Werner-Masuda was the Secretary-Treasurer of Local Lodge 2339N, a subordinate body of the larger union. 3 As Secretary-Treasurer, Defendant Werner-Masuda had authorized access to a secure, proprietary website (“VLodge”), from which she could access IAM’s confidential membership list. Plaintiff alleges that VLodge, and the membership list stored therein, is housed on IAM’s server at the Grand Lodge in Maryland. As a requisite to obtaining an IAM user identification number and password, Defendant Werner-Masuda signed a Registration Agreement stipulating “not to use the information provided through VLodge for any purpose that would be contrary to the policies and procedures established by the [IAM] Constitution.” See (paper 1) (“Complaint”), ¶ 18; Ex. A (“Registration Agreement”).
Plaintiff alleges that from March through May 2004, while Werner-Masuda was a member of IAM and Secretary-Treasurer of Lodge 2339N, she accessed the confidential membership information on VLodge, on behalf of herself and Defendant UIFA. At the time, UIFA was a recently formed entity, created for the purpose of challenging IAM’s union representation of Continental and ExpressJet flight attendants. Plaintiff alleges that Werner-Masuda used her status as an IAM officer, which allowed her access to VLodge, to retrieve the name and address information stored therein to contact IAM members in order to organize UIFA, and, subsequently, to challenge IAM’s representation.
To support its claim, Plaintiff alleges that Werner-Masuda’s identification number had been used to click on the VLodge member search tool approximately 10,000 times between March and May 2004 in order to search the names and addresses of every member in four different IAM local lodges. According to Plaintiff, the members of these four locals comprise the exact same members that Defendant UIFA is attempting to organize into a rival union. Moreover, Plaintiff alleges that a UIFA mailing that went out near the end of June 2004 was sent only to IAM members in these four locals.
According to Plaintiff, Defendant McCormick Advisory Group (“MAG”) “is *484 staffing UIFA’s efforts to replace the IAM as the representative of the Continental/ExpressJet flight attendants.” See Complaint, ¶ 7. Plaintiff alleges that MAG has used the list to contact members of IAM, including residents of Maryland, through its on-going mass mailing campaign.
B. Procedural History
On August 5, 2004, Plaintiff filed a complaint for preliminary and permanent injunctive relief, as well as damages, asserting eight (8) counts against Werner-Masuda, UIFA, and/or MAG. Counts I, II, Y, and VI of Plaintiffs complaint allege violations by Werner-Masuda and UIFA (by and through the actions of Werner-Masuda) of the Federal Stored Communications Act (count I), the Federal Computer Fraud and Abuse Act (count II), as well as the common law torts of trespass to chattel (count V) and fraud (count VI). Count III is a claim for breach of contract against Werner-Masu-da. Counts IV, VII, and VIII allege claims against all defendants for violation of the Maryland Uniform Trade Secrets Act (count IV), conversion (count VII), and unjust enrichment (count VIII). Before a hearing was held on Plaintiffs request for preliminary relief, Defendants Werner-Masuda, on her own behalf and in her capacity as interim President of UIFA, and MAG filed separate motions to dismiss. Werner-Masuda contends that Plaintiffs complaint fails to state claims for relief under the two federal statutes, and that the court should decline to exercise supplemental jurisdiction over the remaining state law claims. (Paper 33). MAG moves to dismiss on the basis that the court lacks subject matter jurisdiction over this action, lacks personal jurisdiction over it, and, alternatively, that the complaint fails to state a claim for relief. (Paper 42).
Subsequent to the filing of these motions, the court held a hearing on Plaintiffs motion for preliminary injunction on September 17, 2004. That motion was denied. See (paper 52). Shortly thereafter, Plaintiff filed a motion for leave to amend its complaint in order to set forth additional background information pertaining to MAG’s contacts with Maryland and to add two additional counts. Plaintiff also named an additional defendant in its amended complaint, Vicky Warlick. See (paper 59).
After the two motions to dismiss and Plaintiffs motion to amend had been fully briefed, Defendant MAG and Plaintiff were granted additional time to supplement their papers in support of, and in opposition to, MAG’s motion to dismiss. See (paper 65). However, MAG’s supplemental filing prompted several more motions by Plaintiff, including a motion to strike (paper 79), a motion for leave to file a surreply (paper 82), and a motion to seal an exhibit used in support of its surreply (paper 83). Plaintiff also moved for sanctions against Defendant UIFA for alleged discovery violations. (Paper 86). After that motion was resolved by Magistrate Judge Day, UIFA filed a motion for relief from the order and objections to the monetary award. (Papers 94 and 100). Plaintiff seeks leave to file a response to the objections (paper 96), and those issues are also before the court. All motions are fully briefed and ready for resolution.
II. Plaintiffs Motions to Seal
Plaintiff has filed two unopposed motions to seal certain exhibits in connection with this matter. In order to place the exhibits under seal, this court must determine “that the denial [of access] serves an important governmental interest and that there is no less restrictive way to
*485
serve that governmental interest.”
Rush-ford v. New Yorker Magazine,
Plaintiffs two motions to seal have been docketed and made available to the public since September 2004 (paper 52) and February 2005 (paper 83), thereby providing sufficient notice under the requirements of
Knight
and
Stone. See Padco Advisors, Inc.,
III. Sanctions
On June 23, 2005, Magistrate Judge Day granted Plaintiffs motion for sanctions and ordered that: (1) UIFA would be precluded from disputing any information provided in any 30(b)(6) deposition regarding the compilation of their June 2004 mailing and their specific activities regarding IAM’s membership records and (2) UIFA and its counsel pay the costs incurred by IAM, including attorneys’ fees, for litigating the motion for sanctions, taking the first UIFA 30(b)(6) deposition, and two-thirds of the costs in taking the second deposition. On August 12, 2005, Magistrate Judge Day entered an order awarding $15,096.70 in sanctions against UIFA and its counsel. UIFA filed a motion for relief from the order, asserting objections to the rulings of the magistrate judge, and later also filed an objection to the amount of sanctions awarded. (Papers 94 and 100). Plaintiff seeks leave to respond (paper 96) which UIFA opposes. Plaintiff has every right to be heard on review of the magistrate judge’s decision, its motion will be granted, and the court will consider Plaintiffs response in its analysis. 4
On review of a magistrate judge’s decision on a non-dispositive matter, the court reviews findings of fact for clear error, and conclusions of law de novo:
“Under 28 U.S.C. § 636[(b)](l)(A), non-dispositive pretrial matters may be referred to a magistrate judge for hearing and determination.” A district judge may modify or set aside any por *486 tion of a magistrate judge’s non-disposi-tive ruling “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” Id.; see also Fed.R.Civ.P. 72(a). Under the clearly erroneous standard, the reviewing court is not to ask whether the finding is the best or only conclusion permissible based on the evidence. Nor is it to substitute its own conclusions for that of the magistrate judge. See TriStar Airlines, Inc. v. Willis Careen Corp., 75 F.Supp.2d 835, 839 (W.D.Tenn.1999). Rather, the court is only required to determine whether the magistrate judge’s findings are reasonable and supported by the evidence. Id. “It is not the function of objections to discovery rulings to allow wholesale relitigation of issues resolved by the magistrate judge.” Buchanan v. Consol. Stores Corp.,206 F.R.D. 123 (D.Md.2002).
Berman v. Cong. Towers Ltd. P’ship-Section I,
UIFA first objects to the imposition of any sanctions, contending generally that: (1) IAM impermissibly expanded the scope of the permitted deposition, (2) the collective responses on behalf of UIFA provide all necessary information, (3) UIFA does not have acceptable responses to IAM’s questions, (4) UIFA does not have a copy of the mailing list and it is unfair to prevent it from disputing information provided in a 30(b)(6) deposition, (5) UIFA was not provided a hearing on the sanctions motion, (6) UIFA was not issued any findings of fact and thus denied due process, and (7) the proposed monetary sanctions are draconian and unjustified. UIFA also objects to the amount of the monetary award, contending that there is no assessment of the reasonableness of the amount. Furthermore, it claims that Fed.R.Civ.P. 37(b) is intended to be punitive for unjust refusal to provide discovery, which, it claims, has not been shown.
Although review of the magistrate judge’s decisions is hampered by the paucity of analysis underlying them, the court has reviewed the record in light of the objections raised, and will modify the rulings in part. There is no requirement that the court conduct an oral hearing. UIFA had a full opportunity, through the motion papers, to be heard.
Plaintiff moved for sanctions against Defendant UIFA for failing to provide an adequate Rule 30(b)(6) witness on two occasions, in contravention of two separate court orders permitting such discovery to take place. See (papers 36, 65). Specifically, it asserted that UIFA’s first 30(b)(6) witness, John Liu, had no knowledge of any of the specific issues outlined in the deposition notice, that he had not been properly prepared before the deposition, and that he possessed no knowledge regarding even basic information about UIFA. Plaintiff contended that UIFA’s second 30(b)(6) witness, James Ryan, was only marginally more informative, that he was unable to provide any information on behalf of UIFA other than that which was from his own personal knowledge, and that UIFA and/or its counsel made no effort to prepare him in advance. UIFA countered that Plaintiffs request was frivolous, arguing that Plaintiff had, through other depositions and document productions, received all the information it sought in Liu’s and Ryan’s depositions, and that there is simply “nothing else to discover.” (Paper 89, at 3). Whether this may in fact be the case does not address the issue of whether Liu and Ryan were so woefully inadequate and ill-prepared that sanctions are warranted. UIFA now concedes that the first 30(b)(6) deposition, of Mr. Liu was not adequate. (Paper 94, at 8).
*487
Rule 30(b)(6) provides that persons designated to represent an organization “shall testify as to matters known or reasonably available to the organization.” This means that UIFA “is obligated to produce one or more 30(b)(6) witnesses who were thoroughly educated about the noticed deposition topics with respect to any and all facts known to [UIFA] or its counsel ....”
In re Vitamins Antitrust Litig.,
The testimony elicited at the Rule 30(b)(6) deposition represents the knowledge of the corporation, not of the individual deponents. The designated witness is “speaking for the corporation,” and this testimony must be distinguished from that of a “mere corporate employee” whose deposition is not considered that of the corporation and whose presence must be obtained by subpoena. 8A Wright, Miller & Marcus, [Federal Practice and Procedure ] § 2103, at 36-37 [ (1994) ]. “Obviously it is not literally possible to take the deposition of a corporation; instead, when a corporation is involved, the information sought must be obtained from natural persons who can speak for the corporation.” 8A Wright, Miller & Marcus, § 2103, at 30. The corporation appears vicariously through its designee. Resolution Trust Corp. v. Southern Union Co.,985 F.2d 196 , 197 (5th Cir.1993). If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation. Dravo Corp. v. Liberty Mut. Ins. Co.,164 F.R.D. 70 , 75 (D.Neb.1995) (citing Marker [v. Union Fid. Life Ins. Co.], 125 F.R.D. [121,] 126 [ (M.D.N.C.1989) ]). Thus, the duty to present and prepare a Rule 30(b)(6) des-ignee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. Buycks-Roberson v. Citibank Federal Sav. Bank,162 F.R.D. 338 , 343 (N.D.Ill.1995); S.E.C. v. Morelli,143 F.R.D. 42 , 45 (S.D.N.Y.1992).
United States v. Taylor,
Rule 30(b)(6) explicitly requires [an organization] to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires such persons to review all matters known or reasonably available to it in preparation for the Rule 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process. The Court understands that preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.
Id.
at 362;
see also Paul Revere Life Ins. Co. v. Jafari,
Reviewing the transcript of Mr. Liu’s deposition submitted by Plaintiff, it is abundantly clear the he was woefully unprepared. First, Mr. Liu had no knowledge at all regarding any of the subjects listed on the 30(b)(6) notice, and, in fact, had not even seen the notice until it was shown to him during the deposition. (Paper 86, Ex. C (“Liu Dep.”), at 7). Further, *488 he testified that he personally had undertaken no steps to prepare for the deposition and that UIFA and its counsel had not made any effort to prepare him, other than advising him to tell the truth. Id. at 11, 16-17. Moreover, not only did he not possess any knowledge regarding the specific topics noted for the deposition, he lacked even basic knowledge regarding UIFA as an organization. He stated that he had never participated in a meeting for UIFA, and did not know how its officers were selected, when it was formed, or even the location of its headquarters. Id. at 12, 19. Perhaps Mr. Liu’s utter lack of information regarding UIFA was because Mr. Liu’s only connection with UIFA was as a part-time volunteer, beginning in July 2004, handing out flyers at the Newark airport on three occasions. Id. at 11. As such, Mr. Liu was not even associated with UIFA during the time it was allegedly receiving and compiling the membership information Werner-Masuda was allegedly providing from March through May 2004. The fact that he was woefully unprepared and inadequate to serve as a 30(b)(6) witness is best illustrated by the following exchange between Plaintiffs counsel and Mr. Liu. After a string of successive “I don’t know[s],” (fourteen by the court’s count), Plaintiffs counsel asked pointedly:
Q. Mr. Liu, you keep on saying I don’t know. You understand you are here today as a representative of UIFA, and your answers bind UIFA. When you say I don’t know, that means UIFA does not know. You understand that?
A. I don’t have any knowledge of what question you are asking me. I don’t have the answer.
Q. So when you answer I don’t know, that means UIFA does not know.
A. I don’t know if UIFA does know or does not know. I don’t know ....
Id.
at 20 (emphasis added). This response, and others like it, demonstrate that UIFA “failed to meet its obligations to produce a Rule 30(b)(6) witness properly educated as to the noticed deposition topics.”
In re Vitamins,
After Mr. Liu’s deposition, on November 19, 2004, Magistrate Judge Connelly entered an order permitting, inter alia, Plaintiff to take another 30(b)(6) deposition of UIFA. 5 See (paper 65). Two days before its scheduled date, Plaintiffs counsel sent UIFA’s counsel a letter informing it of its obligation to provide an adequate *489 30(b)(6) witness. See (paper 86, Ex. D). It also informed UIFA’s counsel of its intention to move for sanctions should UIFA again fail to provide an adequately prepared witness.
On February 17, 2005, Plaintiff deposed James Ryan as UIFA’s 30(b)(6) witness. Plaintiff asserts, and the court agrees, Mr. Ryan was only marginally more prepared than Mr. Liu. Unlike Mr. Liu, Mr. Ryan had been given the deposition notice prior to testifying, and thus, was at least aware of what subjects would be covered.
See
paper 86, Ex. E (“Ryan Dep.”) at 7-8. As the exhibits filed by Plaintiff indicate, however, Mr. Ryan had no knowledge whatsoever of four of the twelve topics noted in the deposition notice. Of the remaining eight topics, Mr. Ryan’s testimony with respect to several of them was based solely on his personal knowledge, stating throughout that he was unable to speak on behalf of UIFA as to its knowledge.
Id.
at 55, 63, 86, 91. However, Rule 30(b)(6) requires that “[t]he individuals so deposed ... testify to the knowledge of the corporation,
not
the individual.”
Poole,
Q. UIFA has no knowledge that Vickie [Warlick] assembled mailing list information from legitimate sources?
A. Again, I can’t — I can only tell you what I was doing.
Q. Okay. Well, if the answer is UIFA doesn’t know, that’s the answer. Is that what you are testifying?
A. I am not UIFA.
Q. You are, for the purposes of the deposition.
[UIFA’s counsel]: For the purposes of
this deposition you are.
A. Me solely?
[UIFA’s counsel]: You solely.
Id. at 19. This exchange indicates that UIFA not only failed to meet its obligation adequately to prepare Mr. Ryan on the subjects that were outside his personal knowledge, but that he was not even aware until the deposition had begun that he was speaking for the corporation. Again, such apparent lack of preparation cannot be tolerated.
Defendant UIFA opposed Plaintiffs motion, arguing that through other non-30(b)(6) depositions and document productions, Plaintiff had obtained all that is discoverable. (Paper 89, at 6). It also asserts that “[i]f the remaining nine (9) or so UIFA volunteers were to be [deposed], IAM would have the same information they now have.” Id. Although this assertion may be true, it hardly excuses its failure to prepare these two designees. In light of the obvious lack of preparation displayed in both Mr. Liu’s and Mr. Ryan’s depositions, some sanctions are warranted.
“Monetary sanctions are mandatory under Rule 37(d) for failure to appear by means of wholly failing to educate a Rule 30(b)(6) witness, unless the conduct was substantially justified.”
In re Vitamins,
As this court has stated before in imposing discovery sanctions:
In determining the proper fee award, the court starts with the “lodestar” figure, which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart,461 U.S. 424 , 433,103 S.Ct. 1933 ,76 L.Ed.2d 40 (1983); see Envirosource, Inc. v. Horsehead Resource Dev. Co.,981 F.Supp. 876 , 881 (S.D.N.Y.1998) (using lodestar method to award attorney’s fees as sanction for discovery violation); Trbovich v. Ritz-Carlton Hotel Co.,166 F.R.D. 30 , 32 (E.D.Mo.1996) (same); Bowne of New York City, Inc. v. AmBase Corp.,161 F.R.D. 258 , 266 (S.D.N.Y.1995) (same). Absent circumstances warranting adjustment, the lodestar figure represents the proper total fee award. Wileman v. Frank,780 F.Supp. 1063 , 1064 (D.Md.1991) (citing Blum v. Stenson,465 U.S. 886 , 888,104 S.Ct. 1541 ,79 L.Ed.2d 891 (1984)). In deciding what constitutes a “reasonable” number of hours and rate, the district court generally is guided by the following factors:
“(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.”
Brodziak v. Runyon,145 F.3d 194 , 196 (4th Cir.1998) (quoting EEOC v. Service News Co.,898 F.2d 958 , 965 (4th Cir.1990) (quoting Barber v. Kimbrell’s, Inc.,577 F.2d 216 , 226 n. 28 (4th Cir.1978))).
CoStar Group, Inc. v. LoopNet, Inc.,
In light of that standard, the undersigned finds that there is insufficient substantiation for the need for all of the hours expended by so many different professionals, and that Magistrate Judge Day’s overall award is too large. The documentation is not in the form of contemporaneous time records, but instead is a summary chart. Moreover, the description of the task performed is vague. As suggested by UIFA, the number of hours claimed is excessive. The records supplied do not enable the court to count with any precision the hours that would properly be spent on the depositions, and preparing for them. At best, then, because some monetary sanction is appropriate, the court can determine an overall reasonable fee for those efforts. The court will award fees only for Ms. O’Brien’s time, in the sum of $1500 for the first deposition, and $2400 for the second. The costs of obtaining a *491 copy of each deposition will be reduced to match those paid by UIFA.
Magistrate Judge Day also ordered that UIFA and its counsel pay the attorneys’ fees for preparing the motion papers and apparently concluded that all but a few of the hours claimed were reasonable. While he excluded hours on certain dates, he did not explain precisely why, and the entries for those dates do not reveal his logic. Moreover, the mathematical calculations do not appear to match the documentation provided. In any event, the undersigned concludes that UIFA and its counsel should not bear the entire cost of IAM’s fees in litigating the sanctions issues, and that the number of hours is again inflated. As pointed out by UIFA, experienced counsel should not need quite so much time to research and draft the papers. The court will award $3500, for 20 hours by Ms. O’Brien at $ 175 per hour in fees for the motions practice.
The total monetary award will be $7947.30.
Finally, Magistrate Judge Day ordered that UIFA would be precluded from disputing any information provided in any 30(b)(6) deposition regarding the compilation of their June 2004 mailing and their specific activities regarding IAM’s membership records. Having been given two chances to provide the requested information, UIFA should be held to that level of response and not be permitted to contradict or supplement later. As will be explained below, however, the federal claims will be dismissed for failure to state a claim, and the remaining state law claims dismissed without prejudice. Only because the case will not continue in this court, the portion of Magistrate Judge Day’s order restricting UIFA, in this litigation, from disputing the testimony given, is revoked.
IV. Motions to Dismiss
A. Lack of Subject Matter Jurisdiction
Motions to dismiss for lack of subject matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court.
See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp.,
B. Failure to State a Claim
The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiffs complaint.
See Edwards v. City of Goldsboro,
*492
In its determination, the court must consider all well-pled allegations in a complaint as true,
see Albright v. Oliver,
Y. Analysis
A. MAG’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
MAG has moved to dismiss Plaintiffs complaint on the grounds that Plaintiffs action constitutes an inter-union representation dispute over which this court lacks subject matter jurisdiction. Because a favorable ruling for MAG would mandate dismissal of the entire action against all Defendants, the court will address this issue at the outset.
6
“Under § 2, Ninth, of the [Railway Labor] Act [(‘RLA’)], the National Mediation Board [(‘NMB’)] has exclusive jurisdiction over representation disputes.”
Western Airlines, Inc. v. Int’l Bhd. of Teamsters,
The issue here is whether Defendants have improperly obtained and used Plaintiffs confidential membership list in violation of federal and state law. Although their purpose for obtaining the list may have been to rally and solicit IAM members to call for a vote to change their union representative, this does not make it a “representation dispute” within the exclusive jurisdiction of the NMB.
7
Rather, as the cases MAG cites make clear, “ ‘[Representation’ disputes involve defining the bargaining unit and determining the employee representative for collective bargaining.”
Western Airlines, Inc.,
In
Cooper,
a case which MAG analogizes to the matter
sub judice,
IFFA, the incumbent union representative of TWA’s flight attendants, brought suit against its former president, Cooper, and IAM, a rival union. IFFA alleged that the defendants misappropriated trade secrets by using IFFA’s logo and membership list to campaign for, initially a merger, but after that was unsuccessful, IFFA’s de-certification.
After the Board’s election and certification decision, IFFA sued IAM in district court, alleging misappropriation of trade secrets and tortious interference with contract. On appeal, the circuit court affirmed the district court’s dismissal based on preemption grounds. Recognizing, however, that “certain causes of action arising out of representation disputes are not preempted by the RLA,” the court could “conceive of no remedy for these claims that would not
impermissibly involve the Mediation Board’s certification decision.” Id.
at 903 (emphasis added). First, the NMB had already determined in its proceeding that IAM did not engage in unlawful conduct when it utilized Cooper, and thus, “[a]n injunction against IAM’s future employment of Cooper would be the functional equivalent of judicial review of that conclusion, which is clearly prohibited.”
Id.
(citing
Switchmen’s Union of N. Am. v. Nat’l Mediation Bd.,
Conversely, as the
Cooper
court recognized, “there is no preemption when the conduct complained of is only of peripheral concern to the RLA.”
Id.
In
Hawaiian Airlines, Inc. v. Norris,
Moreover, even in the context of a representation dispute, courts have held that a claim for damages is not necessarily preempted.
See, e.g., Ass’n of Flight Attendants v. Delta Air Lines, Inc.,
Thus, from
Delta,
“[t]he test for RLA preemption is whether an award of damages would be the functional equivalent of resolving the representation dispute.”
Cooper,
B. Motion to Dismiss for Failure to State a Claim
Related to the issue of subject matter jurisdiction is the question of supplemental jurisdiction raised in the motions to dismiss. Defendants contend that Plaintiff has failed to state claims under either the Stored Wire and Electronic Communications and Transactional Records Access Act (“SECA”), 18 U.S.C. §§ 2701, et seq., or the Computer Fraud and Abuse Act *495 (“CFAA”), 18 U.S.C. § 1030, the only federal claims asserted. Defendants argue that these claims should be dismissed, and because there is no other basis for original jurisdiction, that the court should decline to exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c). Because a favorable ruling, granting the motion to dismiss and declining to exercise supplemental jurisdiction, would result in a dismissal of this action against all Defendants, this motion should be decided at the outset. For the following reasons, the motion will be granted, and the court will decline to exercise supplemental jurisdiction over the remaining claims.
Plaintiff has alleged that Defendant Werner-Masuda violated the SECA and the CFAA when she intentionally accessed VLodge in a manner that exceeded her authorization under the Registration Agreement. See Complaint, ¶¶ 35-42. A prerequisite to liability under both the SECA and the CFAA is that the alleged violator has accessed the computer either without authorization, or in excess of authorization. 9 Werner-Masuda has moved to dismiss these claims on the basis that she was authorized to access and obtain Plaintiffs membership list, and, thus, she did not access the information contained in VLodge either without authorization or in excess of her authorization.
Federal courts interpreting these statutes have noted that their “general purpose ... was to create a cause of action against ‘computer hackers (e.g., electronic trespassers).’ ”
Sherman & Co. v. Salton Maxim Housewares, Inc.
In
Sherman,
Framing the question as “whether Saltón ha[d] alleged and proffered sufficient proofs to create a colorable claim that such access was ‘unauthorized,’ ” the court concluded that Salton’s proposed allegations did not state a claim for relief, and, accordingly, denied its motion to amend. Id. at 821. It found that no violation of the SECA exists where the alleged violator is authorized to access the information. It reasoned:
Because section 2701 ... prohibits only unauthorized access and not the misappropriation or disclosure of information, there is no violation of section 2701 for a person with authorized access to the database no matter how malicious or larcenous his intended use of that access. Section 2701 outlaws illegal entry, not larceny.
Id.
(emphasis added);
cf. Am. Computer Trust Leasing v. Jack Farrell Implement Co.,
The Senate Report explaining the statute also supports this reading, giving examples of unauthorized access. The report states, for example, that a subscriber to a computer mail facility would violate the statute by accessing the electronic storage of other subscribers to the facility without specific authorization to do so.
Id. at 740 (emphasis added) (citing S.Rep. No. 99-541, at 36 (1986), U.S.Code Cong. & Admin.News 1986, pp. 3555, 3590). Moreover, the Report provides that § 2701 “addresses the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public.” S.Rep.No. 99-541, at 35, U.S.Code Cong. & Admin.News 1986, pp. 3555, 3589. Because it is undisputed that Werner-Masu-da was authorized to access VLodge, Plaintiff cannot state a claim for relief under the SECA. Plaintiff does not allege, nor could it, that Werner-Masuda was a “hacker” or “outsider” who, without authorization, gained access to the information contained in VLodge. The complaint explicitly states that Werner-Masuda was authorized to access not only VLodge, but the membership list contained therein. See Complaint, ¶ 17. There are no allegations to suggest that at the time she was accessing that information, allegedly in violation of her Registration Agreement, her authorization had been revoked:
Plaintiff cites one case,
Konop v. Hawaiian Airlines, Inc.,
Finally, Plaintiff argues that, although Werner-Masuda was authorized to access VLodge by virtue of her position as an officer of IAM, her' authorization was limited by the Registration Agreement she signed. It alleges that by signing the Agreement, Werner-Masuda “committed herself not to access or use VLodge for purposes ‘contrary to the policies and procedures of the [IAM] Constitution.’ ” Complaint, ¶ 30, Ex. A. It argues that when she began to access VLodge for the purpose of verifying or obtaining address information for UIFA, she was doing so for purposes other than “legitimate IAM business,” and, thus, was accessing VLodge either without authorization or in excess of her authorization.
Plaintiffs position is flawed for several reasons. First, Judge Motz addressed a similar argument in
Educational Testing Service.
In that case, the plaintiff argued that the defendant violated the SECA by “exceeding the authorization embodied in the confidentiality statements when it copied and disclosed the GRE-CAT questions. By disregarding the terms of the statements, [the plaintiff] claim[ed], [the defendant’s] employees exceeded the conditional access granted by ETS, turning the employees into ‘electronic trespassers’ whose conduct is covered by the Act.”
Contrary to Plaintiffs assertion regarding the effect of the Registration Agreement on Werner-Masuda’s authority to access VLodge, the Agreement states clearly that “[b]y signing this agreement, [she] agreefd]
not to use the information
provided through VLodge for any purpose that would be contrary to the policies and procedures established by the Constitution of the Grand Lodge of the International Association of Machinists and Aerospace Workers.”
See
Complaint, Ex. A (emphasis added).
10
Thus, to the extent that Werner-Masuda may have breached the Registration Agreement by
using
the information obtained for purposes contrary to the policies established by the IAM Constitution, it does not follow, as a matter of law, that she was not authorized to access the information, or that she did so in excess of her authorization in violation of the SECA or the CFAA.
But see Shur-gard Storage Ctrs., Inc. v. Safeguard Self Storage, Inc.,
Recognizing that Shurgard provides Plaintiff some support for a broader interpretation of these statutes, the court, nevertheless, concludes that in fight of the more persuasive statutory interpretations discussed above, the legislative history, and the fact that the SECA and the CFAA are primarily criminal statutes, and, thus, should be construed narrowly, it is beyond doubt that Plaintiff can prove no set of facts that would entitle it to relief under either the SECA or the CFAA. Plaintiff simply cannot overcome the fact, supported by its own allegations, that Wer-ner-Masuda was authorized to access the information contained in VLodge, and that at the time she was allegedly accessing it on behalf of UIFA, her access had not been revoked. Accordingly, the motion to dismiss counts I and II for failure to state a claim will be granted.
C. Supplemental Jurisdiction
Under 28 U.S.C. § 1367(c)(3), the court has discretion to decline exercising supplemental jurisdiction over state law claims if the court “has dismissed ah claims over which it has original jurisdiction .... ”
See Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County, Maryland,
Because the court will dismiss the claims over which it has original jurisdiction, the court will decline to exercise supplemental jurisdiction over the remaining state law claims. This seems especially appropriate given the somewhat novel and complex issues regarding whether Maryland’s long-arm statute permits the exercise of personal jurisdiction over MAG under a conspiracy theory, 13 and whether Plaintiffs membership list would constitute a “trade secret” under Maryland’s Uniform Trade Secret Act. Accordingly, Plaintiffs remaining state law claims will be dismissed without prejudice.
VI. Conclusion
For the reasons stated above, Defendant MAG’s motion to dismiss for lack of subject matter jurisdiction will be denied, but Defendant Werner-Masuda’s motion on behalf of herself and UIFA to dismiss count I (Stored Electronic Communications Act) and count II (Computer Fraud and Abuse Act) will be granted. With respect to the remaining state law claims, the court declines to exercise supplemental jurisdiction and will dismiss those claims without prejudice. The motion to seal will be granted, the motion for leave to file a response on the sanctions objections will be granted, and the sanctions imposed by Magistrate Judge Day will be modified in part. The other motions will be denied without prejudice as moot. A separate Order will follow.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is this 16th day of September, 2005, by the United States District Court for the District of Maryland, ORDERED that:
1. Plaintiffs motions to seal (papers 52 and 83) BE, and the same hereby ARE, GRANTED;
2. Plaintiffs motion for leave to file response to Defendant’s objections (paper 96) BE, and the same hereby IS, GRANTED;
3. The objections of UIFA to Magistrate Judge Day’s orders granting discovery sanctions and awarding costs (papers 94 and 100) BE, and the same hereby ARE, OVERRULED in part, GRANTED in part, and the ruling MODIFIED in part as stated in the Memorandum Opinion;
4. UIFA and its counsel are directed pay, within 10 days, to IAM the amount of $7,947.30 in sanctions for discovery violations;
5. The motion by McCormick Advisory Group to dismiss for lack of subject matter jurisdiction (paper 42) BE, and the same hereby IS, DENIED;
5. The motion by Defendants Werner-Masuda and the Union of Independent Flight Attendants to dismiss counts I and II of Plaintiffs complaint for failure to state a claim (paper 33) BE, and the same hereby IS, GRANTED;
*501 6. Counts I and II BE, and the same hereby ARE, DISMISSED for failure to state a claim;
7. Counts III through VIII, the remaining state law claims, BE, and the same hereby ARE, DISMISSED without prejudice;
8. The remaining motions (papers 59, 79, and 82) BE, and the same hereby ARE, DENIED AS MOOT; and
9. The clerk is directed to transmit copies of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.
Notes
. The thrust of Defendants’ argument is: (1) that Plaintiff's two federal claims should be dismissed for failing to state claims for relief, and (2) that the court should decline to exercise supplemental jurisdiction over the remaining state law claims.
. The court will not reach MAG’s motion to dismiss for lack of personal jurisdiction.
. According to Plaintiff's complaint, IAM is comprised of approximately 1,000 local lodges within 80 Districts. Each District has two or more locals.
. Plaintiff attached its response to its motion for leave to respond. (Paper 96).
. Plaintiff asserts that it proposed going forward with the second deposition at the beginning of January 2005, but that UIFA informed it that a designee would not be available until February. It was ultimately scheduled for February 17, 2005.
.
See McKeel v. United States,
. Indeed, by this logic, any action, no matter how unlawful, criminal, or egregious, would fall within the exclusive jurisdiction of the NMB if done for the purpose of challenging a union’s representation.
. In determining that IAM had not acted improperly, the NMB stated:
The record establishes that the IAM's use of the address labels provided by Cooper for campaign rather than merger purposes was not contemplated specifically by the IAM when Cooper obtained the list for it. Rather the IAM decided to use the address labels for organizational purposes when IFFA’s Executive Board declined to vote on the merger. That decision does not constitute "fraud, coercion, or unlawful conduct" in violation of Section 2, Ninth, of the [Railway Labor] Act.
In re Int’l Ass’n of Machinists and Aerospace Workers,
24 NMB 141, 175,
. Section 2701(a) of the SECA provides that: [WJhoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2701(a). Although the SECA is a criminal statute, § 2707 provides a civil cause of action to "any provider of electronic communication service, subscriber, or other person aggrieved by any violation” of the SECA. Id. § 2707(a).
Similarly, the three provisions of the CFAA Plaintiff alleges Werner-Masuda violated provide that, whoever:
intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer if the conduct involved an interstate or foreign communication[, 18 U.S.C. § 1030(a)(2)(C)]; or ... 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, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period[, § 1030(a)(4)]; or ...
intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage[, § 1030(a)(5)(A)(iii) ]; shall be punished as provided in subsection (c) of [the statute],
§ 1030(a). Like the SECA, although the CFAA is a criminal statute, it provides that "[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.” Id. § 1030(g).
. Because the Registration Agreement was referred to in, and attached to, the complaint, the court may consider it when deciding this 12(b)(6) motion without converting it to one for summary judgment.
Abadian v. Lee,
. Under the Restatement (Second) of Agency, "Unless otherwise agreed, the authority of an agent terminates if, without knowledge of the principal, he acquires adverse interests or if he is otherwise guilty of a serious breach of loyalty to the principal.” Restatement (Second) of Agency § 112 (1958).
. Perhaps best illustrating this point is the fact that in 1986 Congress amended the CFAA to substitute the phrase "exceeds authorized access” for the phrase "or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extend.” S.Rep.No. 99-432, at 9, U.S.Code Cong. & Admin.News 1986, pp. 2479, 2486. By enacting this amendment, and providing an express definition for "exceeds authorized access,” the intent was to "eliminate coverage for authorized access that aims at 'purposes to which such authorization does not extend,' ” thereby "remov[ing] from the sweep of the statute one of the murkier grounds of liability, under which a [person’s] access to computerized data might be legitimate in some circumstances, but criminal in other (not clearly distinguishable) circumstances that might be held to exceed his authorization.” S.Rep.No. 99-432, at 21, U.S.Code Cong. & Admin.News 1986, pp. 2479, 2494-95.
. As stated at the outset, this court does not reach the issue and expresses no opinion as to its proper resolution.