GREGORY P. TURNER, Plaintiff, Appellant,
HUBBARD SYSTEMS, INC., f/k/a Jim Hubbard and Associates, Inc., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District
Gregory P. Turner on brief for appellant.
Bethany P. Minich, Daniella Massimilla, and Litchfield Cavo
LLP on brief for appellee.
Torruella, Thompson, Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
relevant facts in this case are few. Appellant Gregory Turner
is a sole practitioner whose Massachusetts law practice is
focused on recovering delinquent accounts. Appellee Hubbard
Systems, Inc. ("HSI") is a Delaware software
corporation that develops, markets, and sells a debt
collection software program titled "Collection
Partner." In December 1992, Turner entered into a
rent-to-own agreement with HSI in which he was granted a
temporary rental license for the use of Collection Partner.
After making some initial payments and a deposit, Turner was
to make monthly payments until he paid off the remaining
balance for the software, at which time he would be given a
permanent license. Turner made the final installment payment
sometime in 1996, and the parties agree that thereafter
Turner owned a permanent license to the software.
also provides monthly software maintenance services.
Turner's rent-to-own agreement made clear that
maintenance service fees would be charged every month and
that such fees were "separate and apart from the monthly
software license fee rental payment[s]" that Turner was
required to make in order to gain a permanent license to the
April 2011, HSI sent Turner a new license key to reflect an
update in the software. That license expired on May 31, 2011.
On June 1, 2011 Turner informed HSI that his Collection
Partner software was not working. Before noon that same day,
HSI sent Turner a new license key that permitted him access
to the software. Turner's license and access to the
Collection Partner software has remained uninterrupted since
the new license key was sent on June 1, 2011.
following year, Turner filed suit alleging that HSI violated
the Computer Fraud and Abuse Act ("CFAA" or
"the Act") when it issued a license key that
expired on May 31, 2011, despite the fact that he owned a
permanent license to the Collection Partner software. Turner
also alleged state law claims of conversion, intentional (or
negligent) infliction of emotional distress, and unfair and
deceptive practices in violation of Massachusetts General
Laws Chapter 93A. The district court accepted and adopted the
magistrate judge's report and recommendation, granted
HSI's motion for summary judgment, and denied
Turner's motion to strike portions of HSI's motion as
"beyond the scope of the pleadings." In addition to
objecting to the magistrate judge's report, Turner also
filed motions to supplement the record, certify legal
questions to the Massachusetts Supreme Judicial Court, and
appeal one of the magistrate judge's management orders
before the district court judge. The district court judge
denied all these additional motions in their entirety.
appeals the district court's order adopting the
magistrate judge's report and recommendation, denying
Turner's motion to strike, and granting HSI's motion
for summary judgment.
review a district court's grant of summary judgment
de novo, " viewing the facts in the light most
favorable to the nonmovant. Burke v. Town of
Walpole, 405 F.3d 66, 75 (1st Cir. 2005) (citing
Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.
2003)). "We review the denial of [a motion to strike a
motion for summary judgment] for abuse of discretion."
FDIC v. Kooyomjian, 220 F.3d 10, 16 (1st Cir. 2000);
see also Dodi v. Putnam Cos., No. 95-2266, 1996 WL
489998, at *2 (1st Cir. Aug. 28, 1996) ("We review the
district court's decision to strike for abuse of
review of the relevant statutory framework may prove helpful
here. Congress enacted the CFAA in 1984 to address the
problems of computer crime and hacking. Pub. L. No. 98-473,
98 Stat. 2190; see also WEC Carolina Energy Sols. LLC v.
Miller, 687 F.3d 199, 201 (4th Cir. 2012). Originally a
criminal statute, in 1986 the Act was expanded to include a
civil action component as well. Pub. L. No. 99-474, 100 Stat.
1213 (codified as amended at 18 U.S.C. § 1030);
Miller, 687 F.3d at 201. Under the civil action
provision, "[a]ny person who suffers damage or loss by
reason of a violation of [18 U.S.C. § 1030] may maintain
a civil action against the violator to obtain compensatory
damages and injunctive relief or other equitable
relief." 18 U.S.C. § 1030(g). The term
"damage" is defined as "any impairment to the
integrity or availability of data, a program, a system, or
information" and the term "loss" is defined as
"any reasonable cost to any victim, including the cost
of responding to an offense, conducting a damage assessment,
and restoring the data, program, system, or information to
its condition prior to the offense, and any revenue lost,
cost incurred, or other consequential damages incurred
because of interruption of service." 18 U.S.C. §
1030(e)(8), (11). The phrase "compensatory damages"
is not explicitly defined in the statute.
however, have held that not any damage or loss is
compensable. Ef Cultural Travel BV v. Explorica,
Inc., 274 F.3d 577, 585 (1st Cir. 2001) ("We do not
hold, however, that any loss is compensable. The CFAA
provides recovery for 'damage' only if it results in
a loss of at least $5, 000. We agree with the court in In
re Doubleclick Inc. Privacy Litigation, 154 F.Supp.2d
497 (S.D.N.Y. 2001), that Congress could not have intended
other types of loss to support recovery unless that threshold
were met. Indeed, the Senate Report explicitly states that
'if the loss to the victim meets the required monetary
threshold, ' the victim is entitled to relief under the
CFAA. S. Rep. 104-357, at 11. We ...