William Gottlieb Management Co, LLC v. Carlin

Background

WGM sued Allan Carlin, a lawyer previously retained by WGM, alleging violations of the Stored Communications Act and a common-law duty of care. WGM alleged that Carlin used still-authorized credentials to access, view, add, edit, or delete files and folders in WGM’s Dropbox account during 2019.

Carlin later filed a counterclaim alleging that WGM wrongfully detained files he had uploaded to that account. He represented himself. After an earlier motion to dismiss, Magistrate Judge Barbara Moses recommended allowing Carlin to amend his counterclaim. WGM did not object to that ruling. On May 6, 2025, Judge Moses granted Carlin leave to file the amended counterclaim, concluding that it adequately stated a claim for replevin under New York law. Replevin is a claim seeking the return of specific personal property.

WGM then moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a pleading states a legally sufficient claim. WGM repeated its arguments that it had an exclusive property right in the Dropbox account and its contents, and that Carlin could not show WGM refused his demand for the files because WGM had offered to provide them during discovery.

Analysis

Judge Moses concluded that WGM’s arguments were the same arguments it had made when opposing Carlin’s request to amend. She relied on her earlier ruling, which had found that Carlin adequately alleged the required elements of replevin, including that he demanded the return of his property and WGM refused.

The court distinguished returning property from providing copies for inspection during discovery. Because the alleged property was electronic and Carlin’s claimed injury involved WGM’s continued possession of copies, an offer to produce copies for discovery did not necessarily satisfy a demand that the files be returned without WGM keeping copies.

WGM also asked the court to take judicial notice of emails exchanged during discovery. The court explained that judicial notice generally applies only to facts that are not reasonably disputable. It treated the emails as material outside the pleadings that could not be considered on the Rule 12(b)(6) motion without converting that motion into one for summary judgment. The court further concluded that, even if the email facts were considered, they would not contradict Carlin’s allegation that WGM refused to return the files.

WGM later stated that it intended to fully return the documents if Carlin approved the method of return. Judge Moses found that development irrelevant to whether the amended counterclaim was legally sufficient when tested under Rule 12(b)(6), although she said it might help the parties resolve or narrow the dispute.

Recommendation and Further Proceedings

Judge Moses recommended that WGM’s motion to dismiss the amended counterclaim be denied. She also directed the parties to attend a settlement conference before her on July 10, 2025. The parties had 14 days to file objections to the report and recommendation with Judge Victor Marrero. The opinion does not state whether objections were filed or whether Judge Marrero later adopted, rejected, or modified the recommendation.