MetroPCS

ORDER DENYING DEFENDANT CARLOS ELIZONDO’S MOTION TO DISMISS

This case comes before the Court on the motion to dismiss filed by Defendant Carlos Elizondo. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons set out below, the Court denies the motion.

I.

BACKGROUND

T-Mobile sells wireless handsets under the brand MetroPCS for use with Me-troPCS service on the T-Mobile wireless network. (Compl. ¶ 5.) These handsets are sold at prices significantly below the wholesale cost to MetroPCS to make them more widely available to consumers. (Id.) “Plaintiff recoups the money it loses on the Handsets and in dealer commissions through revenue earned on the sale of MetroPCS service, which customers must use to transmit and receive voice, text, and data on the MetroPCS Handsets.” (Id. ¶ 23.) These handsets are sold subject to terms and conditions that restrict and limit the commercial resale and use of the handsets. (Id. ¶ 24.) The handsets also include “proprietary software, requested and paid for by Plaintiff,” which “is intended to prevent the Handsets from being used for other than MetroPCS service, except under circumstance[s] in which legitimate…