The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge
Presently pending are five motions: the motion to dismiss or for summary judgment filed by Defendant William Wilson (ECF No. 46); the motion for leave to file an amended counterclaim filed by Defendant William Wilson (ECF No. 47); and three motions to strike filed by Plaintiffs: to strike Defendant's motion to dismiss or for summary judgment (ECF No. 51), to strike Defendant's response to Plaintiffs' motion to strike the motion for summary judgment (ECF No. 56), and to strike Defendant's reply to Plaintiffs' opposition to the motion for summary judgment (ECF No. 57). The issues are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion for summary judgment will be granted in part and denied in part, Defendant's motion for leave to file an amended counterclaim will be granted, and Plaintiffs' motions to strike will be denied.
Plaintiff Ground Zero Museum Workshop ("GZM") opened as a museum in 2005 and exhibits photographs and artifacts from the aftermath of the attack on the World Trade Center buildings on September 11, 2001. (ECF No. 39 ¶ 9). Plaintiff Gary Marlon Suson is an off-Broadway actor and photographer who personally took many of the photographs on display at GZM. (Id. at ¶¶ 10-11). Suson resides in New York City and is the executive director and founder of GZM. (Id. at ¶¶ 2, 9).
After a visit to GZM with his partner in 2007, Defendant William Wilson, a resident of Maryland, offered to donate his website expertise to GZM. (Id. at ¶¶ 16, 17; ECF No. 46-2, Wilson Aff., ¶ 6). Wilson is a sole proprietor who owns and operates a business under the trade name "Cart Designs" that provides internet shopping cart services. (ECF No. 46-2, Wilson Aff., ¶ 2). Wilson's shopping cart services are typically located on his own web server and are external to the seller's website. (Id. at ¶ 4).*fn1 At the time, GZM's website was hosted on a web server maintained by a company called Intercom.com. Wilson suggested that GZM switch to a new hosting service, A1-Hosting Services ("A1-Hosting"). (Id. at ¶ 9-10). Wilson had prior experience with A1-Hosting and contacted it to see if it would agree to donate its services to GZM, as GZM was then in the process of obtaining 501(c)(3) status. (Id. at ¶¶ 11, 22). When A1-Hosting agreed, Wilson facilitated the transfer of the GZM website from Intercom.com to A1-Hosting. (Id. at ¶ 13). Over time, Wilson made additional changes to the GZM website, and in the spring of 2009 he offered to design a donations page for GZM. (ECF No. 39 ¶¶ 26-27; ECF No. 46-2 ¶ 16).*fn2
The parties' relationship began to deteriorate in the summer of 2009. In early August, derogatory comments regarding GZM and Suson were made on a travel forum page that was part of the tripadvisor.com website. (ECF No. 39 ¶ 33). Wilson posted a response to one of the critiques to defend GZM and Suson but encouraged Suson to avoid commenting personally. (ECF No. 46-2 ¶ 20). Suson did not agree with Wilson's approach, posted his own response, and expressed his disapproval of Wilson's actions and advice in a heated email exchange. (Id., Ex. 8). Wilson interpreted Suson's comments to mean that his services were no longer wanted and sent an email notification that he would "contact my people and have them pull the plug." (Id.). Wilson sent an email resignation on August 10, 2009, and used the user account and password that had been issued to him by A1-Hosting to access the GZM website to remove his shopping cart service and the "Cart Design" notifications from the various web pages within the GZM site. (ECF No. 46-2 ¶ 22). Wilson avers that he returned the GZM website to its configuration at the time in 2007 before he first introduced his shopping cart service. He also maintains that he contacted A1-Hosting to inform it of the situation.
Plaintiffs maintain that Wilson accessed the GWM website without authorization on August 10, 2009. They also contend that he deleted or hid certain files or default pages so it would appear to an outsider trying to access the GZM website that it was no longer in existence. (ECF No. 39 ¶¶ 44-46). Plaintiffs allege that Wilson's deletion of the website caused a loss of ticket sales and gift shop sales and decreased the website's ranking in search engines. (ECF No. 39 ¶ 52).
On August 11, 2009, Wilson sent an email to A1-Hosting stating "please be advised that I have resigned my position as webmaster for the Ground Zero Museum." (ECF No. 46-2, Ex. 11, at GZM127). The email further explained that Wilson had been operating under the assumption that GZM had very little income but that in an email and over the phone Suson had indicated that daily ticket sales met or exceeded $2,000. Wilson also included a link directing A1-Hosting to an article from the New York Post asserting that Suson had donated only a few hundred dollars to charities. (Id.).
That same day, A1-Hosting sent Suson an email confirming that the password for the GZM website account had been changed so that Wilson no longer had access. (ECF No. 46-2, Ex. 12-1). A1-Hosting also requested information about GZM, its charitable mission, and copies of its tax returns. (ECF No. 46-2, Ex. 10). Approximately ten days later, having received no documentation from Suson or GZM regarding its tax status, A1-Hosting informed GZM that it was no longer willing to donate its services and told GZM it had 30 days to find a new host. (ECF No. 39 ¶ 58).
Meanwhile, Suson had contacted law enforcement officials in Montgomery County, Maryland, alleging that Wilson had committed a crime by hacking into the GZM website. As a result, Detective Patrick Word with the Gaithersburg, Maryland police department contacted Wilson. (ECF No. 46-2 ¶ 26). Wilson contends that the Detective told him that if he did not agree to mediate the dispute a search warrant for all his computers would be issued. (Id.). As a result of the mediation, Wilson agreed to restore the GZM website to its prior configuration. To accommodate Wilson's work, Suson provided him with a new password from A1-Hosting. (ECF No. 46-2 ¶¶ 26; ECF No. 39 ¶¶ 59-60). Wilson also asked for, and received, access to GZM's Google Adwords account and its Google Analytics page and used this access to add metadata to optimize the website for search engines. (ECF No. 46-2 ¶ 27; ECF No. 39 ¶ 61). It appeared the two parties had worked through their differences.
The temporary d©tente between the parties ended on August 18. Suson sent a harshly worded email to Wilson regarding Wilson's comments to A1-Hosting wherein Wilson had expressed doubts about GZM's tax status. (ECF No. 46-2, Ex. 15). Wilson refused to vouch for GZM to A1-Hosting and told Suson to send A1-Hosting the documentation it had requested. When Suson refused to apologize, Wilson resigned a second time. (Id. at Exs. 16-17). Thereafter, Suson contacted A1-Hosting, who again changed the password for the GZM web hosting account so that Wilson no longer had access.
On August 20, 2009, in an email to GZM, Wilson claimed ownership of the shopping cart and donations page that were created as part of his collaboration with the GZM website. (ECF No. 39 ¶ 71). The following day, Wilson informed A1-Hosting via email that he believed GZM and Suson were using his intellectual property without authorization. (ECF No. 46-2, Ex. 20).
On August 21, 2009, A1-Hosting sent an email to Suson informing him that A1-Hosting would no longer provide free hosting services and giving Suson notice to move the GZM website to a new web hosting service provider by September 2, 2009. (ECF No. 46-2, Ex. 21). A1-Hosting provided a list of several alternate service providers and responded to questions from Suson regarding the GZM website's requirements. A1-Hosting also extended its original deadline beyond September 2, 2009, because GZM was still working to transfer the site to the new host, LunarPages.com, on that date.
Also in its August 21, 2009 email, A1-Hosting notified Suson that "it appears someone has uploaded malicious files to our server using your FTP credentials. The nature of the files lead us to believe that they are a type that would be used to compromise a server to gain illegal access to it." (ECF No. 52-7, at 17, GZM 468). Plaintiffs contend that its webmaster, Nakka Murali*fn3 and Benjamin Briggs, an employee of Global Market Exposure and a "specialist in the search engine optimization process", have expressed opinions that Wilson was respons for uploading the malicious files. (ECF No. 52, at 13). The affidavits submitted by Messrs. Murali and Briggs do not express this opinion, however. (See ECF Nos. 52-10 and 52-11). In addition, the affidavit of Don Lockaby, the owner of A1-Hosting, stated that the malicious files could not have been uploaded by Wilson because Suson "created a very powerful password and it is impossible that [Wilson] or anyone else could have guessed it" and the files were not present on A1-Hosting's server until August 19, 2009, after the password had been changed at Suson's instruction and Wilson no longer had access. (ECF No. 46-6, Lockaby Aff., ¶ 18.)*fn4 ible
On September 13, 2009, Suson sent an email to A1-Hosting alleging that "some individual has hacked into our 9/11 website again . . . and destroyed this page: http://www.groundzeromuseumworkshop.com/catalog.asp." (ECF No. 46-2, Ex. 27). A1-Hosting explained that there had been no hack, instead the shopping cart support had been terminated by Wilson and, thus, the GZM website could not get any data from Wilson's database. (Id.). The following day, upon checking the GZM website's Domain Name Server record and ascertaining that it had been moved to a new server, A1-Hosting stopped servicing the website.
On September 14, 2009, Wilson sent a notice to A1-Hosting that he categorized as a "Notice of DMCA Filing"*fn5 informing A1-Hosting that GZM continued to use his Cart Design logo without authorization. (ECF No. 46-2, Ex. 28). Wilson got a response stating that A1-Hosting was no longer hosting the GZM website and took this to mean his notice had worked. (ECF No. 46-2, Ex. 29). He later learned that the GZM website had simply been transferred to LunarPages.com before A1-Hosting received his letter. Wilson did not send a similar notice to LunarPages.com, but he did offer GZM, through GZM's counsel Elizabeth Pugliese, the use of his catalog page along with the catalog database if GZM removed all references to Cart Designs. (ECF No. 46-2, Ex. 30). Because GZM never removed the logos or the catalog page, Wilson's shopping cart service continued to receive call-ups from the GZM website. At some point after September 19, 2009, Wilson changed his shopping cart page to display New York Post articles about GZM and Suson whenever it received a call-up from the GZM website. (ECF No. 46-2 ¶¶ 42-43). Wilson also created a separate website published under the name "cam-scam.com" where he offered his insights about Suson's case against the New York Post and linked to the articles published by the Post that were the subject of Suson's lawsuit. (ECF No. 46-2 ¶ 44). The first page of the website included a disclaimer of sorts stating:
There have been a number of articles and documents published about the GroundZero Museum workshop and its founder, Gary Suson, a.k.a. Gary Marlon Suson, -or- Marlon Suson, as well as their history. This site was created to offer the reader a source for this public domain material strictly for educational purposes. Neither this website, nor its creator makes any claim or judgment [sic] as to guilt or innocence, or right or wrong.
Who or whom is right or wrong, or guilty or innocent?
Well, that's up to you, the reader, to decide. (Id.). Wilson also included a link from the cam-scam.com website to Suson's MySpace webpage and he posted a screen shot of Suson from the MySpace page on the cam-scam.com website next to a photograph that Wilson had taken of Suson while they were working together. (ECF No. 46-2 ¶ 45). Suson avers that he never created a MySpace page and he considers the photo that Wilson took of him to be unflattering. (ECF No. 52-1 ¶ 10).
Plaintiffs initiated this lawsuit on December 10, 2009, asserting claims for copyright violations, conversion, defamation, tortious interference in a business relationship, and intentional infliction of emotional distress. (ECF No. 1). Defendant filed his answer and asserted counterclaims for fraud, breach of implied contract, quantum meruit, unjust enrichment, breach of contract, trademark infringement, and misuse of trade secret. (ECF No. 8). Plaintiffs moved to dismiss Defendant's counterclaims, but the motion was denied. (ECF Nos. 10, 23). Plaintiffs have subsequently amended their complaint twice. (ECF Nos. 27, 39). The operative second amended complaint includes seven counts. Count I alleges that Defendant circumvented a copyright protection system in violation of the DMCA, 17 U.S.C. § 1201. Count II alleges that Defendant violated the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. Count III alleges that Defendant is liable for trespass to chattels. Counts IV and V allege that Defendant is liable for defaming Suson (count IV) and GZM (count V). Count VI alleges that Defendant is liable for tortious interference in a business relationship. Finally, count VII alleges that Wilson acted in violation of 17 U.S.C. § 512(f) by knowingly making material misrepresentations to effect a takedown under the DMCA.
Following discovery, on February 22, 2011, Defendant moved to dismiss or for summary judgment. (ECF No. 46). Plaintiffs opposed the motion and simultaneously moved to strike it by arguing that Defendant fails properly to cite to the record to support the facts upon which he relies. (ECF Nos. 51-52).
Plaintiffs subsequently moved to strike both Defendant's opposition to the motion to strike and his reply regarding his summary judgment motion as untimely. (ECF Nos. 56 and 57). Defendant has also moved for leave to amend his counterclaims. (ECF No. 47).
Before turning to the merits of Defendant's dispositive motion for summary judgment or dismissal, Plaintiffs' motions to strike will be resolved in order to determine the body of information that may be considered on summary judgment.
Plaintiffs contend that Defendant's opposition to their motion to strike the summary judgment motion should itself be stricken because it was filed one day late and Defendant had not sought an extension. (ECF No. 56, at 3). Plaintiffs' motion to strike the summary judgment motion was filed and served via electronic filing on March 28, 2011. Plaintiffs contend that pursuant to Local Rule 105.2, all memoranda in opposition to a motion shall be filed within 14 days of service, and thus Defendant's opposition, filed on April 12, 2011, was a day late. (ECF No. 56, at 3). Pursuant to Fed.R.Civ.P. 6(d), however, when service is completed via electronic means, pursuant to Fed.R.Civ.P. 5(b)(2)(E), three days are added to the response time. Accordingly, Defendant's opposition was not due until April 14, 2011, and was timely filed. Plaintiffs' motion to strike the opposition to their motion to strike the summary judgment motion will be denied.
Plaintiffs also move to strike Defendant's reply in response to Plaintiffs' opposition to summary judgment as untimely. (ECF No. 57). Plaintiffs contend that pursuant to the Local Rules, Defendant's reply was due on April 11, 2011. Defendant's reply was not filed until April 26, 2011, and he did not seek an extension. (Id. at 3). In response, Defendant's counsel argues that he believed the reply had been properly filed on time via CM/ECF and that once he realized his mistake he promptly filed the reply and submitted a copy to Plaintiffs. (ECF No. 59, at 3). Defendant also notes that Plaintiffs have not articulated any prejudice from the delay. (Id.).
Although court deadlines are not to be taken lightly or recklessly disregarded, the court has discretion to excuse minor delays, particularly where no party has been prejudiced. Accordingly, Plaintiffs' motion to strike Defendant's reply in response to Plaintiffs' opposition to summary judgment will be denied.
Plaintiffs' final motion to strike, the motion to strike Defendant's motion for summary judgment, has a more substantive basis. Plaintiffs argue that the motion should be stricken because it fails to cite to the record, in violation of Fed.R.Civ.P. 56(c)(1), and it contains testimony from undisclosed experts. (ECF No. 51, at 5). Plaintiffs proceed to include a list of thirteen allegedly unsupported facts in Defendant's memorandum. (Id. at 5-11). Plaintiffs also object to the inclusion as exhibits of the affidavits of Defendant and Donald Lockaby as containing expert opinion that was not properly disclosed pursuant to Fed.R.Civ.P. 26(a)(2)(A). (Id. at 12-13).
Plaintiffs' motion to strike is overly broad and will be denied. To the extent Plaintiffs challenge specific factual assertions within Defendant's motion and supporting documentation or the admissibility of certain pieces of evidence, these challenges will be considered when ruling on the motion's substantive merits. Striking the motion wholesale would be neither efficient nor effective at streamlining the disputed issues.
III.Motion for Summary Judgment
Defendant moves to dismiss or in the alternative for summary judgment. Throughout the motion and memorandum in support, Defendant interweaves factual allegations from the complaint with record evidence obtained during the discovery. Plaintiffs respond with evidentiary material. Accordingly, the motion will be considered as one for summary judgment where the court may consider materials outside of the pleadings.
A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. Celotex Corp., 477 U.S. at 323. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254; Celotex Corp., 477 U.S. at 324. "A mere scintilla of proof . . . will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50. (citations omitted). At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
1.Circumvention of Copyright Protection Systems, DMCA, 17 U.S.C. § 1201
Congress enacted the DMCA in 1998 "to strengthen copyright protection in the digital age." Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001). A portion of DMCA, 17 U.S.C. § 1201(a)(1)(A), provides: "No person shall circumvent a technological measure that effectively controls ...