Novoselskiy v. New U Women's Clinic and Aesthetics PLLC

• Court: District Court, E.D. Washington
• Decided: September 2, 2025
• Docket: 4:24-cv-05155
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Sep 02, 2025 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 TATIANA NOVOSELSKIY, an 7 No. 4:24-CV-05155-RLP individual,

8 Plaintiff, ORDER GRANTING MOTION TO v. DISMISS IN PART AND 9 DENYING IN PART NEW U WOMEN’S CLINIC AND 10 AESTHETICS PLLC, a Washington Corporation, RACHEL FIDINO, an 11 individual and the marital community comprised thereof, and ANDREW 12 FIDINO, an individual and the marital community comprised thereof, 13 Defendants. 14 And 15 NEW U WOMEN’S CLINIC AND 16 AESTHETICS PLLC, a Washington Corporation, and ANDREW FIDINO, an 17 individual and the marital community comprised thereof, 18 Counter Claimants, 19 v. TATIANA NOVOSELSKIY, an 20 individual and Does 1-10, Counter Defendants. 1 Before the Court is Counter-Defendant Tatiana Novoselskiy’s motion to 2 dismiss three counterclaims brought by New U Women’s Clinic. Ms. Novoselskiy 3 is represented by Jon Bogdanov and New U Women’s Clinic is represented by 4 Daniel Spurgeon. This matter was considered without oral argument. 5 Ms. Novoselskiy seeks dismissal of the following three counterclaims: (1) 6 conversion, (2) intentional interference with a business expectancy, and (3) a 7 violation of the Consumer Fraud and Abuse Act. 8 As explained below, the Court grants Ms. Novoselskiy’s motion only as to 9 the Consumer Fraud and Abuse Act claim. While Ms. Novoselskiy’s criticism of 10 New U’s conversion claim has some merit, the elements of a conversion are 11 sufficiently different from New U’s other claims to allow that claim to survive. 12 With respect to the intentional interference with a business expectancy claim, Ms. 13 Novoselskiy seeks a level of specificity that is not required at the pleading stage. 14 Finally, while the Court agrees with Ms. Novoselskiy that New U’s Consumer 15 Fraud and Abuse Act claim should be dismissed, the Court concludes New U 16 should be allowed an opportunity to amend as to that claim. 17 BACKGROUND 18 Tatiana Novoselskiy was employed by New U Women’s Clinic and 19 Aesthetics, owned by Andrew and Rachel Fidino, a married couple. Ms. 20 Novoselskiy alleges that Andrew Fidino sexually harassed her, that she reported 1 the harassment to New U human resources and Rachel Fidino, and that Ms. Fidino 2 improperly terminated her employment. 3 New U and the Fidinos deny the allegations. Andrew Fidino alleges he had a

4 consensual romantic affair with Ms. Novoselskiy. After her allegations of sexual 5 harassment, he was interviewed by human resources, admitted the consensual 6 affair, and his employment was terminated. Thereafter, Mr. Fidino alleges Ms.

7 Novoselskiy defamed him by stating he was a “sexual predator” to customers and 8 members of the public. 9 New U and Ms. Fidino allege that upon learning about the sexual harassment 10 allegations, Ms. Fidino immediately initiated an investigation. After an

11 investigation, New U determined the romantic relationship between Ms. 12 Novoselskiy and Andrew Fidino was consensual and fired both employees. New U 13 alleges that before accusing Mr. Fidino of sexual harassment, Ms. Novoselskiy

14 took sensitive information including trade secrets and copyrights from New U and, 15 upon her termination, immediately commenced working for a competitor. 16 Ms. Novoselskiy has filed suit against New U and the Fidinos, raising eight 17 claims related to allegations of gender discrimination and wrongful termination. In

18 response, New U and Ms. Fidino have raised eight counterclaims. These relate to 19 allegations Ms. Novoselskiy misappropriated company trade secrets and property. 20 1 Ms. Novoselskiy has filed a motion requesting the Court dismiss three of the 2 counter-claims under FRCP 12(c). 3 ANALYSIS

4 Federal Rule of Civil Procedure 12(c) provides that a party may move for 5 judgment on the pleadings after the pleadings are closed, but before trial. Fed. R. 6 Civ. P. 12(c). A motion under Rule 12(c) tests the legal sufficiency of the

7 complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Cafasso, U.S. ex rel. v. 8 General Dynamics C4 Systems, Inc. 637 F.3d 1047, 1063 n.4 (9th Cir. 2011). The 9 analysis is “substantially identical” to that of a motion to dismiss under Rule 10 12(b)(6): a court must determine whether, crediting the factual allegations as true,

11 the moving party is entitled to judgment as a matter of law. See Chavez v. United 12 States, 683 F.3d 1102, 1108 (9th Cir. 2012). The principal difference between the 13 two motions is the timing of the filing. See Dworkin v. Hustler Magazine Inc., 867

14 F.2d 1188, 1192 (9th Cir. 1989). 15 Under both standards, a complaint “must contain sufficient factual matter, 16 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 17 U.S. at 678. In other words, the complaint must contain “well-pleaded facts” from

18 which the Court can “infer more than the mere possibility of misconduct.” Id. at 19 679. If a court determines the complaint does not meet the standard set forth under 20 Rule 2(c), a court may grant a motion with leave to amend, but it need not do so if 1 amendment would be futile. See Deveraturda v. Globe Aviation Sec. Servs., 454 2 F.3d 1043, 1046 (9th Cir. 2006). 3 Ms. Novoselskiy seeks dismissal of the following three counter-claims: (1)

4 conversion, (2) intentional interference with a business expectancy, and (3) a 5 violation of the Consumer Fraud and Abuse Act. Each is addressed in turn. 6 1. Conversion

7 In Washington, conversion consists of an unjustified, willful interference 8 without lawful justification, whereby a person entitled to it is deprived of the 9 possession of his or her property. Coto Settlement v. Eisenberg, 593 F.3d 1031, 10 1039 (9th Cir. 2010) (citing Potter v. Washington State Patrol, 165 Wash.2d 67,

11 196 P.3d 691, 696 (2008); Western Farm Service, Inc. v. Olsen, 151 Wash.2d 645, 12 90 P.3d 1053, 1054 n. 1 (2004)); see also Burton v. City of Spokane, 16 Wash. 13 App. 2d 769, 773 (2021). New U’s cause of action for conversion alleges that Ms.

14 Novoselskiy unlawfully took at least 80 files containing critical business 15 information through fraudulent access and air-dropping techniques. 16 Ms. Novoselskiy contends that New U’s counterclaim for conversion should 17 be dismissed for three reasons: (1) the Uniform Trade Secrets Act preempts the

18 conversion claim; (2) the Copyright Act preempts the conversion claim; and (3) the 19 independent duty doctrine bars the conversion claim, given the parties had a 20 contract. New U disagrees with Ms. Novoselskiy, pointing out that it has 1 specifically disclaimed any trade secrets as part of its conversion claim and that 2 conversion requires proof of different elements than claims related to trade secrets, 3 copyright, or contract.

4 The Court agrees with New U that, at least to a limited degree, its 5 conversion claim is distinct from the claims that Novoselskiy argues should be 6 given preclusive effect. Ms. Novoselskiy validly criticizes New U’s conversion

7 claim as referring to intellectual property which would conceivably fall under the 8 purview of other causes of action, such as a violation of trade secrets or copyright 9 law. But a conversion claim requires not simply the wrongful use of property—it 10 also requires a deprivation of the property owner’s right to possession of property.

11 Consistent with a pure conversion claim, New U alleges Ms. Novoselskiy “took a 12 business notebook from New U” which contained certain notes, data, and other 13 non-public information. ECF No. 25 at 34:4.12. New U also alleges Ms.

14 Novoselskiy took at least 80 computer files from a New U computer and then 15 saved them to her laptop computer. ECF No. 25 at 46:5.22.1 If true, these 16 allegations potentially implicate the deprivation element of a conversion claim. 17 They are distinct from a trade secrets or copyright claim. And the independent duty

19 1 It is not clear from the pleading that the electronic “taking” of files 20 deprived New U of the files or whether they were simply copied. 1 doctrine, pertaining to actions involving contract violations, is distinct from the 2 duty not to take someone else’s property. See Fuji Food Prods., Inc. v. Occidental, 3 LLC, 6 Wash. App. 2d 1027 at *6 (2018) (unpublished).

4 As properly construed, it appears New U’s conversion claim may be minor. 5 Nevertheless, it is not subject to dismissal at this point in the litigation. 6 2. Intentional Interference with a Business Expectancy

7 To assert a tortious interference with a business expectancy, New U must 8 show (1) the existence of a valid business expectancy, (2) that Ms. Novoselskiy 9 had knowledge of that expectancy, (3) an intentional interference inducing or 10 causing a breach or termination of the expectancy, (4) that Ms. Novoselskiy

11 interfered for an improper purpose or used improper means, and (5) resultant 12 damage. See Leingang v. Pierce Cnty. Med. Bureau, 131 Wn. 2d 133, 157, 930 13 P.2d 288 (1997).

14 Ms. Novoselskiy contends that New U’s tortious interference claim fails 15 because it does not identify any specific customers or contracts that she allegedly 16 interfered with. Although an enforceable contract is not required to support a 17 tortious interference claim, a plaintiff must allege “a relationship between parties

18 contemplating a contract, with at least a reasonable expectancy of fruition.” 19 Scymanski v. Dufault, 80 Wn.2d 77, 84-85 (1971). “Courts allow tortious 20 interference claims where a defendant’s acts destroy a plaintiff’s opportunity to 1 obtain prospective customers. Washington courts require a plaintiff to show only 2 that its future business opportunities are a reasonable expectation and not merely 3 wishful thinking.” Greensun Grp., LLC v. City of Bellevue, 7 Wn. App. 2d 754,

4 768-69 (2019). 5 New U’s allegations regarding business expectancy include: 6 New U had a valid business expectancy of continued purchase of services by its clients. Very few clients procure only one or 7 two visits, as the nature of the services and treatments often requires multiple visits extending into the future. Counter- 8 Claim Defendants also perceived that these clients would purchase additional services in the future, and in fact took steps 9 deliberately designed to divert patronage to Counter-Claim Defendants’ new competing business rather than continuing to 10 do so from the New U.

11 ECF No. 25 at 42:5.9. Additionally, New U claims Ms. Novoselskiy diverted 12 existing clients to competing businesses. ECF No. 25 at 44:5.13. 13 Taking New U’s allegations as true, it has sufficiently plead a reasonable 14 expectation of continued relationship with existing customers. The matter of who 15 the customers are is a matter for discovery, not for judgment on the pleadings. See 16 Tori Belle Cosms. LLC v. McKnight, 2022 WL 3927069, at *6 (W.D. Wash. Aug. 17 31, 2022) (declining to dismiss claim where allegations of a fully functional 18 venture with existing customers, a sales track record, and reasonable expectations 19 for growth created a plausible basis for valid business expectancy); Life Designs 20 Ranch, Inc. v. Sommer, 191 Wash. App. 320, 337, 364 P.3d 129, 138 (2015) 1 (finding prima facie case of reasonable expectation shown at summary judgment 2 by historical referral and enrollment records to demonstrate reasonable expectation 3 of future numbers).

4 The two cases cited by Ms. Novoselskiy, Group4Techs. V. Nexeon, 2023 5 WL 3599580 at *3; and Stuc-O-Flex v. Low & Bonar, 2019 WL 4688803 at *6 6 (W.D. Wash. Sept. 26 2019), rely on Pac. Nw. Shoot Park Ass’n v. City of Sequim,

7 158 Wash. 2d 342 (2006), a tortious interference with a business contracts case. In 8 City of Sequim, the court found that “[t]o show a relationship between parties 9 contemplating a contract, it follows that we must know the parties’ identities.” Id. 10 at 353 n.2. But in Greensun, the Washington Court of Appeals cautioned against

11 conflating the two closely related torts of interference with a business contract and 12 interference with a business expectancy and found City of Sequim does not apply to 13 a case involving intentional interference with a business expectancy. 7 Wash. App.

14 2d at 769-70. 15 The motion to dismiss as to the claim for interference with a business 16 expectancy is denied. 17 3. Violation of the Consumer Fraud and Abuse Act

18 Ms. Novoselskiy contends that New U’s Consumer Fraud and Abuse Act 19 (CFFA) claim pursuant to 18 U.S.C. § 1030 fails as a matter of law because Ms. 20 Novoselskiy was given access to the computer systems at issue. The CFAA creates 1 criminal and civil liability for “acts of computer trespass by those who are not 2 authorized users or who exceed authorized use.” Facebook, Inc. v. Power 3 Ventures, Inc., 844 F.3d 1058, 1065 (9th Cir. 2016). New U’s claim states:

4 While [Novoselskiy], as an employee of new U at the time, had limited authorization to access certain 5 computer files for New U’s business purposes, Novoselskiy far exceeded the bounds of her authorized 6 use by taking the actions described in this cause of action. . . . She misled New U into believing she was 7 only using New U’s computers, computer networks, and New U-authorized passwords to perform her authorized 8 employment functions, when she was actually violating her written and verbal promises to honor these limits. 9 ECF No. 25 at 48:5.27. 10 The complaint further alleges that on October 4, 2024, Ms. Novoselskiy 11 fraudulently obtained access to New U’s Microsoft 365 account and added herself 12 as a shared user to access New U’s files through Microsoft 365. ECF No. 25 at 13 48:5.28. New U “promptly” removed Ms. Novoselskiy’s shared user access. Id. 14 Lastly, New U alleges Ms. Novoselskiy has attempted to gain access to other New 15 U electronic accounts and it is “believed” that there is “an ongoing campaign of 16 fraudulent computer attacks by [Ms.] Novoselskiy.” ECF No. 25 at 49:5.29. 17 The CFAA authorizes a person damaged by prohibited conduct to bring a 18 civil suit where a party “intentionally accesses a protected computer without 19 authorization, and as a result of such conduct, recklessly causes damage.” 18 20 U.S.C. § 1030(a)(5)(b), (g). Case law is clear that the misuse or misappropriation 1 of information through authorized access is not covered by the CFAA. See Van 2 Buren v. United States, 593 U.S. 374, 396 (2021) (finding that police officer’s 3 misuse of a database to which he had authorized access not covered by the CFAA);

4 NW Monitoring LLC v. Hollander, 534 F. Supp. 3d 1329, 1340 (W.D. Wash. 5 2021). As noted by Ms. Novoselskiy, the Supreme Court described CFAA liability 6 as “a gates-up-or-down inquiry - one either can or cannot access a computer

7 system, and one either can or cannot access certain areas within the system.” 593 8 U.S. at 1658-59. Here, the complaint acknowledges Ms. Novoselskiy had 9 authorization to access computer files for business purposes. Thus, since the 10 complaint alleges that she was authorized to access computer files, allegations

11 regarding the misuse of those files are not covered by the CFAA. 12 New U contends that its CFAA claim applies to actions after Ms. 13 Novoselskiy was terminated on September 25, 2024. The counterclaim alleges

14 fraudulent action on October 4, 2024 in the form of unauthorized access to its 15 Microsoft 360 account. New U also contends that the counterclaims “allege a 16 broad range of unauthorized entry including post-employment intrusions.” ECF 17 No. 25 at 49:5-12. The application of the CFAA to potential post-employment

18 access depends on the whether and how Ms. Novoselskiy’s computer access was 19 revoked. 20 1 The Ninth Circuit has rejected the argument that permission or authorization 2 to access a computer is automatically withdrawn when the user violates a duty 3 owed to the owner of the computer. Domain Name Comm’n Ltd. v. DomainTools,

4 LLC, 449 F. Supp. 3d 1024, 1027 (W.D. Wash. 2020). “Rather, whether access is 5 authorized or unauthorized ‘depends on actions taken by the employer.’” Id. 6 (quoting LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134-35 (9th Cir. 2009)).

7 “[A] defendant can run afoul of the CFAA when he or she has no permission to 8 access a computer or when such permission has been revoked explicitly.” 9 Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016)). “If 10 the computer owner has not affirmatively rescinded the defendant's right to access

11 the computer, any existing authorization/permission remains.” Domain, 449 F. 12 Supp. 3d at 1027. 13 New U has plausibly alleged that Ms. Novoselskiy accessed New U’s

14 computer files after her employment ended. However, it has not alleged that it 15 explicitly revoked her authorization to access files. This is a flaw in the pleading of 16 the CFAA claim that must be remedied for the claim to survive. 17 The counterclaims also allege post-employment alleged attempts to reset

18 contact information on electronic accounts and actions “believed to be an ongoing 19 campaign of fraudulent computer attacks.” ECF No. 25 at 49:5.29. Ms. 20 Novoselskiy contends that New U’s CFAA claim cannot be based on alleged l|| “attempts” to access a computer system. The Court agrees. While an “‘attempt” may be charged as a crime under the CFAA, 18 U.S.C. § 1030(b), it is not the basis for a civil claim under 18 U.S.C. § 1030(g), which provides only for claims arising from intentional access of a protected computer without authorization under 18 U.S.C. § 1030(c)(4)(A)G) and 1030(a)(5)(B). Since this part of the counterclaim alleges only attempted and not actual access, it must be dismissed. CONCLUSION 8 Counter-Defendant Tatiana Novoselskiy’s Motion to Dismiss, ECF No. 38, is GRANTED in part and DENIED in part. New U’s Consumer Fraud and Abuse Act counterclaim is dismissed without prejudice. Ms. Novoselskiy’s motion dismiss the counterclaims for conversion and intentional interference with a business expectancy are denied. 13 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter this Order and to provide copies to counsel. 15 DATED September 2, 2025

1 REBECCA’L. PENNELL United States District Judge 18 1 2

ORDER GRANTING MOTION TO DISMISS IKTDADT AXTTR ADRATWTRIDTRIDADT 19