Defendants File Motion to Dismiss Xfinity Handset Trafficking Complaint

The motion to dismiss followed the defendants’ Tuesday certification in support of their motion to strike portions of the complaint. The defendants notified opposing counsel by email of issues detailed in the motion to strike, but the parties were unable to resolve their disputes, said the defendant's attorney, Adam Buck of Radix Law.

In the motion to strike, the defendants asked the court to strike paragraphs and exhibits in the complaint because they “outline the unlawful and criminal conduct of unrelated third parties, such as the Mustafa Family Crime Organization and Hezbollah,” which have “absolutely no connection” with the defendants, it said. The referenced portions of the complaint “would only confuse the jury” and be “prejudicial” to the defendants, they said.

In their motion to dismiss XM's complaint, the defendants said XM’s common law fraud and fraudulent misrepresentation claim fails because the plaintiffs failed to plead fraud with “particularity,” and the civil conspiracy claim fails because only one individual is named and a person “cannot have a conspiracy with himself.”

Tortious interference claims should be dismissed because it's not alleged that Zahara knew the terms of the Xfinity customer agreement, and the defendant website's advertising “cannot constitute intentional interference," said the motion. The defendants advertise on their website that they buy new, factory sealed phones that are financed, blacklisted/blocked, activation-locked or unlocked, “but general advertisement cannot constitute intentional interference,” it said.

Unfair competition and unjust enrichment claims should be dismissed because Globalgurutech “fairly negotiates a price for each phone and pays the agreed-upon amount to the seller,” the company said. Citing XM’s allegation that it's unfair for GGT to unlock and resell XM phones, the plaintiff said it doesn't unlock phones, “but even if they did, it would be permissible” because once it fairly negotiates a price with the phone’s legal owner, it can “do whatever it likes with the phone.”

XM’s claims that the defendants trafficked in computer passwords, unauthorized access and unauthorized access with intent to defraud should be dismissed because they contain “only threadbare recitals of the elements of the cause of action” without specific allegations of who illegally obtained security codes, the motion said. If, as the plaintiff alleged, the defendants obtained security codes through the Dark Web and identity theft and accessed Xfinity’s computer systems, “Xfinity would have the details of who it was and when this access occurred,” said the defendants, saying “no such information” was in the complaint.

XM's complaint is “filled with details about illegal cell phone schemes involving other people and organizations,” said the motion, citing the complaint’s “great detail about what ‘usually’ happens or what ‘often’ happens” in similar cases. The complaint appears to be a “form" complaint from plaintiffs’ counsel, Carlton Fields, said the motion. It doesn't appear the lawsuit was "tailored" to "the facts of this case,” it said.

XM filed a motion for expedited discovery Nov. 29, asserting the plaintiffs “have significant evidence” relevant to the case that they're “under no duty to preserve and may destroy pursuant to their corporate document retention policies.” In a Friday response, the defendants said there’s “no evidence that any of the discovery information XM seeks to thwart illegal trafficking in stolen phones “is at risk of being destroyed.”