TrueBeginnings LLC v. Spark Network Services Inc, No. 3:2007cv01986 - Document 70 (N.D. Tex. 2009)
Court Description: FINDINGS AND RECOMMENDATIONS re 59 MOTION for Partial Summary Judgment filed by Spark Network Services Inc, Niro Scavone Haller & Niro LTD, 61 MOTION for Partial Summary Judgment filed by TrueBeginnings LLC. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 3/13/09) (klm)
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TrueBeginnings LLC v. Spark Network Services Inc Doc. 70 IN THE LINITEDSTATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION TRUEBEGINNINGS. LLC Plaintiff. NO. 3-07-CV-1986-M VS. SPARKNETWORKSERVICES, INC.,ET AL, Defendants. FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Plaintiff TrueBeginnings,L.L.C, ("True") and DefendantsSpark Network Services,Inc. for ("Spark") and Niro, Scavone,Haller & Niro, Ltd. ("NSHN") have filed cross-motions partial summaryjudgment in this civil action arising out of the alleged unauthorizeduse of plaintiffs motion should be granted and website by NSHN. For the reasonsstated herein, defendants' plaintiffs motion should be denied. I. Plaintiff owns an online relationship and dating service operated through its website, http://www.true.com ("True.com"). (See Plf. MSJ App. at 23,I2). Spark is the owner by entitled"Systemfor DataCollection No. 6,272,467 I ("the '467Patent"), B assignment ofU.S. Patent and Matching Compatible Profiles." (See id. at 83-103). NSHN is a Chicago law firm that '467 Patent. (SeePlf. MSJ Resp.App. at representsSpark in the licensing and enforcementof the 26-27), -1- Dockets.Justia.com the On or about February1,2007, a user identified as "df220" accessed True.comwebsite an from an IP address assigned NSHN. (SeePlf. MSJ App. at46-47). The userregistered account to in the nameof "Daniel R. Ferri," and provideda dateof birth of March 24,1984. (Id.). k appears the that Feni againaccessed True.com website from the NSHN IP addresson March 21,2007 . (ld.). This time, Ferri identified himself as "Paul K. Vickrey," but provided the same date of birth of March 24, 1984. (Id.). Feni is a paralegalemployedby NSHN. (Seeid. at 8l). Vickrey is one of Spark in this litigation. (Id.). On November 2,2007, another the NSHN attorneysrepresenting his NSHN employee,JasonHicks, registered own accountwith True.comunder the screenname the to "jhixx24." (Id. at 46-47,81). After gainingaccess the websiteand accepting Terms of Use, of Hicks took screenshotsr his computermonitor aspart of an investigationto determinewhetherthe "True CompatibilityIndex" infringesthe'467 Patent. (Seeid. at25, flfl l3-14 &27-33: Plf. MSJ Resp.App. at 26-27; Def. Reply Br. at l-2). In a letter datedNovember 14,2007, RaymondP. Niro, Jr., an NSHN attorney,notified plaintiff that the True.comwebsiteinfringed at leasttwo claims of the'467 Patent. (SeePlf. MSJ Resp.App. at 26-27;seealso Plf. Sec.Am. Compl. at3-4, fl 8). Attachedto the letterwere a series of of chartscomparingthe patentclaimsto screenshots the website. (SeePlf. MSJ Resp.App. at 2837). The letter advisedthat Spark had filed a patent infringement action againstthree other internet dating services--Yahoo, eHarmony, and Match.com--in Illinois federal court, and threatenedan their differences. legalconfrontation"with plaintiffunlessthepartieswereableto resolve "expensive (Seeid. at27). Lessthan two weekslater,on November27,2007, plaintiff filed the instantaction I A "screenshot" a recordedimageof the visible itemsdisplayedon a computermonitor. (See,e.g.Plf. MSJ is App. at 27-33). .) -L- against Spark in Texas federal court seeking a declaratoryjudgment of non-infringement and invalidity as to the'467 Patent Sparkcounteredby joining plaintiff as a defendantin the Illinois litigation. Plaintiff responded this "tit-for-tat" by amendingits complaintin the Texaslawsuit to to include claims againstboth Spark and NSHN for breach of contract, negligent misrepresentation, common lawtrespass,and declaratory violations of federal and Texas computerprotection statutes, of claimsis relief. (SeePlf.Sec.Am. Compl. at 6-10,llfl 28-63). The gravamen thesenon-patent the thatNSHN, actingon behalfof Spark,violatedthe Termsof Use by accessing True.comwebsite for the purposeof investigatingwhetherplaintiff infringed the'467 Patent. (Seeid. at 4, J[ I l). judgment.2 for claimsarebeforethe court on cross-motions partial summary The non-patent Although the partiesmove for summaryjudgmenton different grounds,the court hasidentified three the presented:(l) whetherNSHN and its client, Spark,breached broad issuesfrom the arguments plaintiffs websitefor the pu{poseof conductinga pre-suitinvestigation Terms of Use by accessing into possibleinfringing activity; (2) whetherthe Terms of Use insulateplaintiff from liability for infringing the'467 Patentand prevent Spark from suing plaintiff for patent infringement in lllinois; resulting from the allegedunauthorizeduse of and (3) whether plaintiff has sustainedany damages its website. The issueshave been briefed and arguedby the parties, and the motions are ripe for determination. u. Summaryjudgment is proper when "the pleadings,the discovery and disclosurematerialson file, and any affidavits show that there is no genuineissueasto any material fact and that the movant law determines is entitled to judgment as a matterof law." Fpo. R. Ctv. P. 56(c). The substantive 2 At the requestof the parties,the court has stayedthe patentclaims pending a re-examinationofthe'467 Patent by the U.S. Patentand TrademarkOffice. See Order,6/9/08. -3- Liberty S.Ct. whichfacts material. Andersonv. are See Lobby, lnc.,477U.5.242,247,106 2505, for is by L.8d,2d202(1986). Where, here,a case presented way of cross-motions as 2509-10,91 judgment,eachmovanthasthe burdenof producingevidence supportits motion. A to summary all movant who bearsthe burdenof proof at trial must establish"beyondperadventure of the judgmentin his favor." Fontenotv. Upjohn essential elements the claim or defense warrant of to judgment (5thCir. 1986) (emphasis original). party A seeking Co.,780F | 190,I 194 .2d in summary fact of who doesnot havetheburdenof proofat trial needonlypointto theabsence a genuine issue. 1995). Oncethemovantmeets SeeDuffiv.LeadingEdgeProducts,Inc.,44F.3d308,3l2(sthCir. partytoproduce specific evidence designate or shiftsto thenonmoving the its initialburden, burden Inc. of issuefor trial. SeeFordoche, v. Texaco, factsin the recordshowingtheexistence a genuine to in must lnc.,463F.3d388,392(sthCir.2006).All evidence beviewed thelightmostfavorable N.A.,465 FargoBankof Texas SeiJkin LLP v. Wells the the partyopposing motion. SeeFoulston (5thCir.2006). F.3d211,214 A. The threshold issue in this caseis whether the pre-suit investigation of plaintiff s website conductedby NSHN falls within the scopeofthe Terms of Use. Defendantscontendthat the Terms of Use apply only to the dating and relationship servicesoffered by plaintiff through its website. or Plaintiff maintainsthat the Terms of Use governany access use of the website. 1. Under Texas law, "the interpretationof an unambiguouscontract is a questionof law for the presentwhen the court to decideby'looking at the contractas a whole in light of the circumstances Cokerv. contractwasentered."'Gonzalezv.Denning,394F.3d388,392(5thCir.2004),quoting -4- Coker,650 S.W.2d391, 394 (Tex. 1983). A contractis unambiguous it is so wordedthat it can if be given a certain or definite legal meaning or interpretation. Id., citing National (Jnion Fire Ins. Co. of Pittsburgh v. CBI Industries,Inc,,907 S.W.2d 517 520(Tex, 1995). Conversely, contract a , is ambiguouswhen, after applying establishedrules of construction,the languageof the contract is susceptibleto two or more reasonableinterpretationsor meanings. Id.; see also American Manufacturers Mutual Ins. Co. v. Schaefer,124 S.W,3d154, 157 (Tex.2003). However, "[a] contract is not ambiguous merely because the parties to an agreement proffer conflicting interpretations a term." Gonzalez,394F.3d at392, quoting Internqtionsl TurbineServices, of Inc. v. VASP Brazilian Airlines, 278 F3d 494, 497 (5th Cir. 2002). "When a case involves the interpretation of a contract and the contract is unambiguous,summaryjudgment is appropriate." Esquivelv. MuruayGuard,lnc.,992 S.W.2d536,544(Tex. App.--Houston [4th Dist.] 1999,pet. denied). In construing a written contract,the court's primary concernis to ascertainthe true intent of the parties as expressed the instrument. Gonzalez,394F.3d at 392; see also ResolutionTrust in 1993)."Thetermsusedinthe[contract]aregiventheir Corp.v.Cramer,6F.3d1702,1106(5thCir. plain, ordinary meaningunlessthe [contract] itself showsthat the parties intendedthe terms to have adifferent,technicalmeaning." Gonzalez,394F.3dat392,quotingAmericanNationalGeneralIns. Co. v. Ryan, 274 F.3d 319, 323 (5th Cir. 2001). Moreover, contractsmust be construedin their entirefy "so that the effect and meaning of one part on any other part may be determined." Texasv. American TobaccoCo.,463 F.3d 399,408 (5th Cir.2006), quotingSmart v. Tower Lsnd & InvestmentCo.,59T S.W.2d333,337(Tex. 1980). "[C]ourtsmustbeparticularlywaryofisolating sentence, section or from its surroundings considering or apartfrom otherprovisions singlephrase, a -5- of a contract." Id., quoting StateFarm Life Ins. Co. v. Beaston,907S.W.2d 430,433 (Tex. 1995). To the extent possible, the court should "harmonize and give effect to all the provisions of the N.A. v. FDIC,16 F.Supp.2d meaningless." Bank One Texas, contractso that nonewill be rendered (N.D.Tex,1998), at 698,7Q7 citingCoker,650 S.W.2d 393. 1 The court begins its task of ascertaining scopeof the Terms of Use by examiningthe the layout of the subjectwebsite. When a user accesses True.comhomepage, opening screen the the displays an image of a young couple locked in a romantic embracewith a headlinebannerthat reads, "Meet the One Who's Right for You--Right Now." 6ee Plf. MSJ App. at 27). Underneaththe headlinebanner,the websiteadvertises, "Whetheryou'relooking for your soul mate--orjust agreat date--TRUE will help you find exactly what, and who, you're looking for." (Id). The opening services, including scientificcompatibility screen toutsthe benefitsof True'sdatingandrelationship testing andbackgroundscreeningto weed out felons andmaried persons,and invites the userto sign up for a free trial. (Id.). Upon clicking the "Sign Up Free" button, the websiteallows the user to (Id.at32).lnordertoaccessthisfree "SearchforFREEandcontactthousandsofsinglesnearyou!" service, the user must provide his or her gender, zip code,and preferencefor a male or female partnerwithin a certain age range. (Id.). Oncethe user providesthis information and clicks the "Continue" button, the screendisplays the screennamesand photographsof a number of possible matches,coveredby a box that asksthe userto supply a birth date,screenname,password,email page,the useris warned, and address, countryof residence.(Id. at33). On the bottom of the screen for the first time, that "By clicking'CONTINUE'I affrrm that . . . I havereadand agreeto the TRUE in Terms of Use and Code of Ethics." (Id.) (emphasis original). -6- The Terms of Use are set forth in a seven-pagedocument containing 34 numbered paragraphs. The first paragraph,which defines the scopeof the agreement,provides: These Terms of Use, along with our Code of Ethics, Terms and Conditions, and other applicablerules and guidelinesincluding but not limited to our Privacy and Use Policy (collectively, the "Agreement"), govern your use of our website and related services (collectively, the "Services"). Your use of the Service and any materials accessed through the Service indicates your full acknowledgment,understanding, agreementand acceptance these of Terms of Use and the Agreement. As you sign up, pleaseread this Agreementcarefully. You can completeyour sign-upand becomea subscriber only by following the steps below. USAGE CONSTITUTES ACCEPTANCE SO ONCE YOU CLICK ON THE BUTTON AT THE END OF YOUR SIGN-UP FORM, YOU ARE AGREEING TO BE BOLIND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE PROVISIONS CONTAINED IN THIS AGREEMENT, YOU TO THE SHOULD NOT USE THE SERVICE. SUBSCRTPTION SERVICE IS VOID WHERE PROHIBITED. (ld. at 38, fl l) (emphasis the added). Thus,by its express language, Termsof Use apply only to the "services" provided by plaintiff, which are defined as "use of our website and related services." (Id.). In determiningwhetherthe term "Services"includesuse of the website for any pu{pose,as dating and relationshipservices, argued as arguedby plaintiff, or useof websiteonly for accessing by defendants,the court looks to the contract as a whole in light of the surrounding circumstances. plaintiff providesa variety of online dating services According to the True.comhomepage, to enablemembersto find their most compatible matches"for dating, romance,love and morc." (Id. invites users at27). Little is left to the imaginationof what "more" might entail, as the homepage test to take a SexplorationrM to find their "hottestmatches." (Id.). Plaintiff also offers "coaching" for servicesto help memberspreparetheir profiles and personalads, as well as recommendations safer dating, which the member must review and agreeto follow prior to using the Service. (Id. at -7- 27 & 42,n21). Althougha third-party advertisement (see appears thehomepage, id. at27),the on Termsof Usemakeclearthat plaintiff takesno responsibility for--and no controlover--any has or content,goods,or services obtainedthroughany suchadvertiser third-partyresource.(Id. at 43to 44,nn28-29). In light of the natureof the services offeredby plaintiff, it is reasonable conclude that the terms of use apply only to the dating and relationship servicesavailable through the True.comwebsite. Otherprovisionsof the Termsof Use supportthis conclusion.Onesuchprovisionis a "Code of Ethics," wherebythe usermust certifr, inter aliq,thathe or sheis at least l8 yearsold, hasnever . been convicted of a felony or a sexualoffense,and is not married (ld. at 38, ll 5). The user also must agreeto maintainany photospostedto his or her profile within two yearsof the datetaken,to test, truthfully answerquestionsin the TRUE Compatibility Test@and the TRUE Sexploration@ to treat fellow memberswith dignity and respect,and not to use defamatory,abusive,profane, threatening,harassing,or otherwiseoffensivematerialsin communicationswith other members. (/d are at 39, fl 5). These representations meaningful only if the website is used to contact and communicate with other members and subscribersfor the purpose of developing a personal relationship. In addition, the Terms of Use contain multiple provisions regarding free trials, recurring billing, payment methods,accountrenewal and termination, and refunds for the services only in the context offered. (Id. at 47-42,nn ru-20 & 44,fln32-34). Theseprovisionsmake sense to model, which offers online datingand relationshipservices membersfor a of plaintiffs business fee. of defendants breachingcan be harmonized Even the contractprovisionsplaintiff accuses defendants of with the court's interpretationof the Terms of Use. Specifically,plaintiff accuses -8- violating the following terms and conditions: to be truthful, accurateand completein the information presented his or herPersonal in Profile(see MSJApp. at Plf. 39,fl 5); for use to only usethe Service his or her sole,personal and transfer not authorize othersto usethe Serviceor otherwise his or herright to usetheService anyotherperson entity to or (see at39,n7@)); id. (see profilefor theService provided to onlycreate unique one id. at39,fl 7(g)); id. notto impersonate person entity(see at39,fl 8(a)); any or application, not to useanyrobot,spider,sitesearch/retrieval to deviceor process retrieve, or othermanualor automatic 'data or the index, mine,'or in anywayreproduce circumvent of navigationalstructureor presentation the Serviceor its (see contents id. at39,fl 8(e));and translate, sell, reversenot to modifu, adapt,sublicense, any disassemble decompile otherwise or decipher, engineer, with the portion of the Serviceor the websiteassociated or usedwith or for the Service cause or Service anysoftware others do so(seeid. at40,fl 8(/)). to Plaintiff advertisesthat it performs backgroundcheckson its membersto excludefelons and married persons. (Seeid. at 27). Indeed, the website warns that convicted criminals and married persons representingthemselvesas single will be reported to appropriatelaw enforcementauthorities and prosecuted the fullest extentof the law. (Id.). The provisionsrequiring usersto provide truthful to and accurateinformation, not to impersonateany person or entity, and to create only one unique profile are clearly intendedto facilitate plaintiffs backgroundchecksand bolster any legal action brought against violators. The requirement that the user only use the Service for his or her "sole, personaluse," and not transferthe right of such use to any other personor entity, is intendedto -9- prevent non-membersfrom "piggybacking" on a paying member'saccount. Although the purpose of the restrictionsagainst"datamining" and "reverseengineering" lessapparent, is reasonable is it to conclude that those provisions are intendedto prevent membersfrom devising a way to contact and communicate with potential matchesother than through the True.com website.3 Afterall, if a user could contact a potential match directly, there would be no need to pay for a subscription to plaintiffs service. Finally, plaintiff could have draftedthe termsto expressly cover any "access" "viewing" or lnc.,507 of its website,but failed to do so. CompareTicketmaster L.L.C. v. RMG Techonologies, govemedany "access" or to F,Supp.2d1096, 1107 (C.D. Cal.2007) (Terms of Use expressly WL 3102178 Inc., No. H-07-2543,2007 "viewing" of the website);Greer v. I-800-Flowers.com, to at *2 (S.D. Tex. Oct. 3,2007) (Termsof Use providedthat a party "agrees its terms by accessing the any part of the website"). Instead, TermsofUse govern"useof the websiteand relatedseryices." the Significantly,the user is not requiredto acceptthe terms before accessing website. It is only when the user attemptsto utilize the websiteto find potential matchesthat a link to the Terms ofUse and Thus, "useofthe website"is inextricablyintertwinedwithplaintiffs "relatedservices," appears. any interpretation of the "use" provision must be read in the context of the dating and relationship "seryices"offeredthroueh the website. When the Terms of Use are construed in their entirety and in light of the surrounding circumstances,there can be little doubt that the terms and conditions apply only to the dating and 3 Two other provisions of the Terms of Use support such an interpretation. One prohibits the user from last in including "any telephonenumbers,streetaddresses, names,URLs, or email addresses any content,email, chat or message any other communication." (Plf. MSJ App. at39,n 7(g)). Another condition,which appliesto free trials addressor other similar address or free memberships,preventsthe user from sharing "an email address,instantmessage with TRUE membersor subscribers other than my True email address,"and gives plaintiffthe right to remove any personaladdress and replaceit with the user'sTrue.comemail address.(/d at a0, I 9). -10- relationship services offered by plaintiff though its website. BecauseNSHN used the True.com website for the sole purposeof investigatingwhether plaintiff infringed the'467 Patent,its conduct is outsidethe scopeofthe Terms ofUse. Accordingly, defendants entitled to summaryjudgment are on plaintiffs breach of contract claim.a B. Plaintiff also seekssummaryjudgment on its claim for declaratoryrelief involving two disputedprovisions of the Terms of Use. The first provision, entitled "Limitation of Liability," reads: I UNDERSTAND AND AGREE THAT TRUE WILL NOT BE FORANY DAMAGES LIABLE TO ME ORANY THIRDPERSON OR LOSS WHATSOEVER,WHETHER DIRECT, INDIRECT, GENERAL, COMPENSATORY, CONSEQUENTIAL, ARISING OR EXEMPLARY,INCIDENTAL,SPECIAL PTINITTVE, FROM OR RELATINGTO MY USE OF THE SERVICEOR MY CONDUCT OR CONDUCT OF ANYONE ELSE OR MY INABILITY TO USE THE SERVICEINCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL OF LOSS CORRUPTION DATA ORPROGRAMS, OR DISTRESS, SERVICE INTERRUPTIONS AND PROCUREMENT OF AND/OR ANY OTHER DAMAGES SERVICES, SUBSTITUTE OR RESULTING FROMUSE,COMMLINICATIONS MEETINGS I OR OF WITH OTHERUSERS THE SERVICE PERSONSMEET THESERVICE TO ORWHOAREINTRODUCED ME THROUGH EVEN IF TRUE KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITYOF SUCH DAMAGES. NOTWITHSTANDING TRUE'S ANYTHING TO THE CONTRARY, I LTNDERSTAND AND LIABILITY TO ME FOR ANY CAUSE WHATSOEVER, OF REGARDLESS THE FORMOFTHE ACTION,WILL AT ALL TIMES BE LIMITED TO THE AMOI-INTI PAID TRUE FORTHE SERVICE. 4 The resolutionof this issuepretermitsconsideration defendants'argument public policy prohibitsany that of interpretation of the Terms of Use that preventsan attorney from investigatingwhether a website infringes a patent. (See to Def. MSJ Br, at 7-8; Def. Reply Br. at2). Nor is it necessary decidewhether Spark is liable for the actionsof its attorneys. (SeePlf. MSJ & Resp.Br, at 4). -11- (Plf. MSJ App. at 42,n22). The second jurisdiction, venue,and choiceof law: provision addresses I AGREE THAT IF THERE IS ANY DISPUTE ABOUT OR INVOLVING THE SERVICE, BY USING THE SERVICE, THE DISPUTE WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. IF I AM NOT A RESIDENT OF THE STATE OF TEXAS, I AGREE TO PERSONAL JURISDICTION BY AND EXCLUSNE VENUE IN THE STATE OF TEXAS AND THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS. IF I AM A RESIDENT OF THE STATE OF TEXAS, I AGREE TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURTS OF TEXAS. (ld. at $,n2r. Under plaintiffs interpretation thesecontractterms,it is not liable to Sparkfor of infringing the'467 Patent and cannot be sued anywhereother than Texas. The court disagrees. When readin its entirety,it is clearthat the "Limitation of Liability" appliesonly to damages to or loss arisingfrom or relatingto the useof plaintiff s online datingservices--not claimsfor patent of infringement. The first sentence the paragraphstatesthat plaintiff will not be liable for "any damagesor loss whatsoever. . . arising from or relating to [the user's]use of the Serviceor [the user's]conductor conductof anyoneelseor [the user's]inability to usethe Servicel.]" (ld. at 42,f1 clarifies that the limitation appliesto 22) (emphasisadded). Another part of the same sentence with otherusersof theServiceor persons or resultingfrom use,communications meetings "damages added). to [the user]meet[s]or who areintroduced [theuser]throughtheService[.]" (ld.) (emphasis the As previouslydiscussed, contractdefines"services"as "useof our websiteandrelatedseryices." servicesthrough its website,the (Id. at 38, fl l). Becauseplaintiff does not offer patent-related doesnot applyto patentclaims. Nor doesthe venueprovision,which requires limitation on damages "any disputeabout or involving theService"to be broughtin a Texascourt,apply to a suit for patent -12- infringement. (Id. at 43, fl 25) (emphasisadded). Plaintiff is not entitled to a declaratoryjudgment with respectto thesecontractprovisions. C. Defendants move for summaryjudgmentwith respectto plaintiff s other claims on the ground that there is no evidenceof damagesresulting from the allegedunauthorized use of the True.com website. Damagesare an essentialelementof plaintiffs claims for negligentmisrepresentation, violations ofthe federaland Texascomputerprotection statutes, and common law trespass.See,e.g. element FederalLand Bank Ass'nof Tyler v. Sloane,825S.W.2d 439,442 (Tex. l99l) (essential is of negligentmisrepresentation that "the plaintiff suffer[ ] pecuniarylossby justifiably relying on WL Airlines Co. v. BoardFirst,L.L.C.,No. 3-06-CV-0891-B,2007 the representation"); Southwest 18U.S.C.$ 1030(g)(federalComputerFraudand 4823761at*12(l{.D.Tex.Sept.12,2007),citing or damages otherrelief by a personwho suffers civil actionfor compensatory Abuse Act authorizes 143.001(a)(Texasstatute Id.at*16,citingTEx.Ctv.Pnec.&Rnu.CooBAt$t.$ "damageorloss"); prohibiting harmful accessto computer requires proof of an "injury" to person or property); 435,442(N.D. Tex. 2004),quotingZapata Inc.,3l8 F.Supp.2d Southwest Airlines Co. v. Farechase, (Tex.1981)(liabilityforcommonlawtrespassdoes S.W.2d198,201 v. FordMotorCreditCo.,615 not attach "unless the wrongful detention is accompaniedby actual damagesto the property or period of time"). deprivesthe owner of its use for a substantial when NSHN any damages Here, plaintiff fails to allege,much lessprove, that it sustained plaintiff cannotraisea Without evidenceof damages, accessed websiteunder falsepretenses.s its s The only evidencein the record that even remotely toucheson the issueof damagesis an answerto an interrogatory asking plaintiff to compute the monetary damagesit seeksfor each causeof action. (SeeDef. MSJ App. plaintiff, throughcounsel,answered that it "claims costsof $6,450 for its investigation at 9, Interrog.#l). In response, -13- genuine issue of material fact to defeat summaryjudgment on its claims for negligent misrepresentation, violationsofthe federal Texas and computerprotection statutes, common and law trespass. RECOMMENDATION Defendants' motion for partial summary judgment [Doc. #59] should be granted and plaintiffs motion for partial summaryjudgment [Doc. #61] should be denied. The court should dismiss with prejudice plaintiffs claims for breach of contract, negligent misrepresentation, as violations of the federal and Texas computerprotection statutes,and common law trespass, well as plaintiffs claim for declaratoryrelief with respectto the limitation of liability and venue provisions of the Terms of Use. Because only other claims before the court have been stayed the pending a re-examination of the '467 Patent,the court should find that there is no just reason for delay and direct the clerk to enter a final judgment in favor of defendantswith respectto the claims herein. SeeFBo.R. Ctv. P. 54(b). dismissed A copy of this report and recommendation shall be served on all parties in the manner within 10 daysafter to providedby law. Any party may file written objections the recommendation being servedwith a copy, See28 U.S.C. $ 636(bxl); Fnn. R. Ctv. P.72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistratejudge that are acceptedor adoptedby the district court, except upon into Defendants' illegal access to its website." (Id. at I I ). However, plaintiff cannot rely on its own interrogatory answers,which are not made under oath by someonewith personalknowledge, to createa genuine issueof material fact for trial, SeeBitsofv. City of Dqllay No. 3-98-CV-1262-8D,1999 WL 222452 at *3 (N.D. Tex. Apr. 8, 1999),affd, to 199 F.3d 438 (Table), 1999 WL 1067621(5thCir. Oct. 19, 1999)(parrymay rely on its own interrogatoryanswers of otherwisecomply with requirements Rule 56). defeatsummaryjudgment only to the extentthe answers -14- 1417(5th groundsofplainerror. SeeDouglassv.UnitedServicesAutomobileAss'n,79F.3d1415, Cir. 1996). DATED: March13.2009. STATES MAGISTRATE JI,JDGE -15-
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