UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1265

EXPERT BUSINESS SYSTEMS, LLC; DAVID ESAW,

Plaintiffs - Appellants,

versus

BI4CE, INCORPORATED, d/b/a Business

Intelligence Force; CHRISTOPHER S. CHODNICKI,

Defendants - Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cv00600-AMD)

Argued: January 31, 2007 Decided: May 9, 2007

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Dennis J. Starks, Accokeek, Maryland, for Appellants.

Joseph A. Compofelice, Jr., MARCUS & BONSIB, Greenbelt, Maryland,

for Appellees. ON BRIEF: Bruce L. Marcus, MARCUS & BONSIB,

Greenbelt, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Plaintiffs Expert Business Systems, LLC, and David Esaw

(collectively, “EBS”) appeal from the district court’s award of

summary judgment to defendants BI4CE, Incorporated, d/b/a Business

Intelligence Force, and Christopher Chodnicki (collectively,

“BI4CE”), pursuant to the court’s January 2006 Memorandum Opinion.

See Expert Business Systems, LLC v. BI4CE, Inc., No. 1:04-cv-00600-

AMD (D. Md. Jan. 31, 2006) (the “Opinion”). As explained below, we

are satisfied with the district court’s analysis of the issues in

its Opinion, and we are content to affirm its judgment in favor of

BI4CE.

I.

A.

On February 27, 2004, EBS filed a seven-count complaint

against BI4CE in the District of Maryland, alleging that BI4CE had

violated the Electronic Communications Privacy Act (the “ECPA”), 18

U.S.C. §§ 2510-2521, and the Computer Fraud and Abuse Act (the

“CFAA”), 18 U.S.C. § 1030, and also alleging various state law

claims. On December 16, 2005, the parties filed cross-motions for

summary judgment. Concluding that there were no issues of material

fact in dispute, and that EBS had failed to forecast sufficient

evidence to establish either of its two federal causes of action,

the district court awarded summary judgment to BI4CE on the ECPA
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and CFAA claims. By its Opinion, the court declined to exercise

supplemental jurisdiction over EBS’s five state law causes of

action and dismissed them without prejudice. EBS contends on

appeal that the court erred in its Opinion in four specific

respects: (1) concluding that there was insufficient evidence to

support the ECPA and CFAA claims; (2) failing to view the evidence

in the light most favorable to EBS; (3) applying an incorrect

evidentiary standard for claims arising under the ECPA and CFAA;

and (4) making impermissible credibility determinations. 

B.

EBS and BI4CE, which are information technology businesses,

entered into an agreement to develop a computer software program

after David Esaw, the president of EBS, and Christopher Chodnicki,

the president of BI4CE, met in early 2002 at a technology seminar.

Pursuant to a Teaming Agreement executed in January 2003, EBS and

BI4CE were to work together closely in a joint effort to develop a

web-enabled version of EBS’s proprietary software. After several

months, however, the business relationship between the parties

began to deteriorate and EBS terminated the Teaming Agreement in

July 2003. At that time, EBS informed BI4CE that it had breached

the Teaming Agreement by, inter alia, remotely accessing an EBS

desktop and laptop on several occasions without authorization. EBS

asserts that shortly after it notified BI4CE of its alleged breach
1The ECPA creates a cause of action for a violation thereof

and provides, in relevant part:

[A]ny person who . . . intentionally intercepts,

endeavors to intercept, or procures any other person to

intercept or endeavor to intercept, any wire, oral, or

electronic communication; . . . shall be subject to suit.

18 U.S.C. § 2511(1)(a).

4

of the Teaming Agreement, BI4CE transmitted a program, code or

command to an EBS desktop computer which rendered it useless. As

specific evidence of interception, EBS contends that BI4CE

intercepted two emails addressed to fictional employees created by

EBS for marketing purposes.

EBS’s contentions on its ECPA and CFAA claims are spelled out

in its Complaint and these contentions and the related evidence

were carefully reviewed by the district court in the Opinion.

These contentions include, inter alia, the assertion that during

their business relationship, BI4CE gained access to two of EBS’s

computers and, through the unauthorized installation of a remote

access program, improperly gained access to the records and data

contained therein. Specifically, Count I of the Complaint alleges

that BI4CE violated the ECPA by intercepting, disclosing,

endeavoring to disclose, and using EBS’s wire, oral or electronic

communications.1

 EBS then alleges, in its Count II, that BI4CE

violated the CFAA by remotely accessing EBS’s computers without
2

The CFAA creates a cause of action for a violation thereof,

and provides, in relevant part, that whoever causes a $5,000 loss

during a one-year period by “knowingly caus[ing] the transmission

of a program, information, code, or command, and as a result of

such conduct, intentionally caus[ing] damage without authorization,

to a protected computer” shall be subject to suit. 18 U.S.C. §

1030(a),(g).

3EBS and BI4CE each submitted expert reports of forensic

computer examinations to the district court in support of their

respective motions for summary judgment. Lawrence Larsen, retained

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authorization and transmitting a computer program that destroyed

one of EBS’s computers.2

In contrast, BI4CE explains that it installed the remote

access program at EBS’s request to allow EBS to remotely access

BI4CE’s server. According to BI4CE, this arrangement allowed EBS

to make changes to its product website, which BI4CE was developing

pursuant to the Teaming Agreement. BI4CE further contends that it

received the two emails at issue in the ordinary course of its

business arrangement with EBS and immediately forwarded them to

EBS. Finally BI4CE asserts that the damage to the computer was

caused by EBS’s own system upgrades and file downloads and not by

any harmful program or code sent by BI4CE.

Although it is undisputed that BI4CE had physical access to

the computers in question on at least one occasion, the evidence

fails to demonstrate that BI4CE installed any software that allowed

it remote access to EBS’s computers. Instead, the evidence

indicates that the software on these computers allowed EBS to

initiate remote access to BI4CE’s server, not vice versa.3

 This
by EBS to examine the hard drives of its two computers, drew no

conclusions regarding the cause of EBS’s computer problems.

Instead, Larsen reported that he had not detected any suspicious

internet activity or spyware during his forensic review, and

indicated that it was the EBS computer that was initiating contact

with the BI4CE server, in a manner consistent with BI4CE’s

explanation of events. 

4

EBS’s expert, Larsen, did not identify any evidence of a

program or code sent by BI4CE to cause damage to EBS’s desktop

computer in violation of the CFAA. In contrast, Michael

Wertheimer, retained by BI4CE, found forensic evidence indicating

that EBS’s difficulties with its desktop computer were ongoing,

rather than sudden, and that they may have been caused by a system

update, hardware installation or file download that all coincided

with EBS’s computer problems. Wertheimer did not find any evidence

of a harmful code or program sent by BI4CE and, accordingly,

concluded that there is no basis to identify any suspicious

activity on the part of BI4CE. EBS accordingly failed to forecast

any evidence that BI4CE had transmitted such a code or program

beyond its undisputed computer problems.

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evidence supports BI4CE’s contention that EBS requested the remote

access arrangement so that it could make alterations to its product

website, which BI4CE was developing and hosting. EBS also failed

to forecast any evidence to demonstrate that BI4CE had

“intercepted” the emails at issue or any other wire, oral or

electronic communication. Instead, the evidence is that BI4CE

received and promptly forwarded to EBS the two contested emails

pursuant to the Teaming Agreement and its obligations to host and

maintain the EBS product website on its server. Finally, EBS

failed to rebut BI4CE’s evidence that the complained of damage to

the EBS computer was caused by the activities of an EBS employee,

rather than being caused by a harmful program or code sent by

BI4CE.4
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II.

We review de novo a district court’s award of summary

judgment, viewing the facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party. See

EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).

Summary judgment is permissible when “there is no genuine issue as

to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). When a party has submitted sufficient evidence to support

its request for summary judgment, the burden shifts to the

nonmoving party to show that there are genuine issues of material

fact justifying a trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-88 (1986). And, of course,

unsupported speculation is not sufficient to defeat a properly

supported summary judgment motion. Ash v. UPS, 800 F.2d 409, 411-

12 (4th Cir. 1986). An award of summary judgment is also

appropriate when a party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.” Celotex, 477 U.S. at 322. With these principles in mind,

we turn to EBS’s appellate contentions.
5The Opinion can be found at J.A. 1238-47. (Citations to

“J.A.___” refer to the Joint Appendix filed by the parties in this

appeal.) 

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III.

A.

EBS first contends on appeal that the district court erred in

concluding that EBS had forecast insufficient evidence to support

its federal claims under the ECPA and the CFAA. Having thoroughly

reviewed the Opinion and the parties’ appellate briefs, and having

heard and considered the oral argument, we are satisfied that the

court did not err in ruling that there is insufficient evidence to

support the ECPA and CFAA claims. We are therefore content to

reject this contention on the reasoning of the district court. See

Opinion 7-8 (concluding that there is an “utter lack of any

substantial probative evidence” to support the ECPA cause of

action, and an “utter lack of expert opinion evidence” to support

EBS’s “speculative assertions” of a CFAA cause of action).5

B.

EBS next contends that the district court applied an incorrect

evidentiary standard for its claims under the ECPA and CFAA, by

ruling that direct evidence is essential in order to establish such

claims. To the contrary, however, the Opinion does not so rule,

and it does not mandate that direct evidence is essential to

maintaining the two federal claims. Instead, the court concludes
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that there is an “utter lack of any substantial probative evidence

that defendants wrongfully ‘intercepted’ the disputed e-mails” and

notes the “utter lack of any expert opinion evidence supporting the

speculative assertions by plaintiffs that defendants . . . damaged

the computers through the delivery of a [code or program].”

Opinion 7-8. The only discussion by the court of either direct or

circumstantial evidence is its characterization of the evidence

offered by EBS as “an increasingly attenuated series of inferenceson-inferences based on circumstantial evidence arising from

defendants’ undisputed physical access to the plaintiffs’

computers.” Opinion 6. Accordingly, the Opinion does not premise

the court’s award of summary judgment to BI4CE on the fact that EBS

presented circumstantial evidence only. The award is, to the

contrary, simply based on the court’s conclusion that EBS’s

evidence was insufficient to present a genuine issue of material

fact. 

C.

EBS next asserts that the district court, in its Opinion,

failed to view the evidence in the light most favorable to EBS, and

contends that the court erred when it failed to give proper weight

to the evidence presented. This contention is again contradicted

by the Opinion, where the court observes that, “[e]ven viewing the

record in favor of plaintiffs as the non-movants, no reasonable
10

juror could reasonably conclude by a preponderance of the evidence

that defendants violated § 2511.” Opinion 8. The Opinion points

out, as to EBS’s CFAA claim, that “plaintiffs have not even

attempted to respond to the unobjected-to and unrebutted opinion

stated by defendants’ forensic computer experts.” Id. After our

independent consideration of the record and the Opinion, we are

satisfied that the court viewed the evidence in the light most

favorable to EBS and correctly concluded that no reasonable juror

could find in EBS’s favor on the basis thereof. Although

reasonable inferences must be drawn in favor of EBS as the

nonmoving party, such inferences are required by law to “fall

within the range of reasonable probability and not be so tenuous as

to amount to speculation or conjecture.” Thompson Everett, Inc. v.

Nat’l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995). The

district court correctly applied the controlling legal principles

in this regard, and this contention of EBS is thus also without

merit.

D.

Finally, EBS contends that the district court made credibility

determinations in its Opinion that are inappropriate for a summary

judgment proceeding. Specifically, EBS asserts that the court

erred when it observed, by footnote, that emails sent by EBS

contained “harsh language” and “sarcasm,” when it stated that EBS
11

did not “accurately set forth the date on which plaintiffs’ interns

first exercised dominion and control over plaintiffs’ computers,”

and when it observed that an intern resisted BI4CE’s attempts to

depose him “apparently with plaintiffs’ acquiescence.” Opinion 4

n.6, 6 n.9. EBS is correct, of course, that credibility

determinations by a trial court are not permissible in a summary

judgment proceeding. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (noting that “[c]redibility determinations, the

weighing of evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge, whether he is

ruling on a motion for summary judgment or for a directed

verdict”). Contrary to this contention, however, the Opinion does

not reflect that the district court made any such credibility

determinations. Moreover, the court did not rest its award of

summary judgment to BI4CE on the specified footnotes, but instead

on the failure of EBS to demonstrate a dispute of material fact on

the ECPA and CFAA claims. As a result, this final contention is

also rejected.

IV.

Pursuant to the foregoing, we are unable to identify any

reversible error made by the district court in its disposition of
12

this case, and we thus affirm its award of summary judgment to

BI4CE. 

 AFFIRMED